J. 1999 SKQB 18 Q.B. A.D. 1998 No. 1940 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: SASKATCHEWAN INSTITUTE OF APPLIED SCIENCE AND TECHNOLOGY and SASKATCHEWAN PROPERTY MANAGEMENT CORPORATION and HAGBLOM CONSTRUCTION (1984) LTD., MARCEL FORTIER, GREG MARQUIS and JOHN MACAROCO and CITY OF SASKATOON and WILLIAM HEWITT THIRD PARTIES B. J. Kot for the defendants G.D. Young, Q.C. for the third parties JUDGMENT BARCLAY J. August 18, 1999 [1] This is an application by the City of Saskatoon and William Hewitt (the "third parties") to strike out the third party claim on the basis that it does not disclose a reasonable cause of action. FACTS [2] Saskatchewan Institute of Applied Science and Technology and Saskatchewan Property Management Corporation (the "plaintiffs") allege that the action of the defendant, Hagblom Constructions (1984) Ltd. ("Hagblom") caused a fire in the plaintiffs building occurring January 5, 1997. The claim is advanced in contract and in tort. [3] The essence of the defendant\'s allegations in the third party claim may be characterized as follows:(a) In paragraphs 8 to 12 of the third party claim, the defendants allege that the actions or omissions of the City of Saskatoon\'s fire department either caused the plaintiffs\' loss, or contributed to it. This claim is made only against the City of Saskatoon, not William Hewitt. The defendants say that the fire department failed to properly fight the fire, and that they omitted certain actions prior to the fire that, supposedly, contributed to its spread. The defendants' claim for contribution and indemnity arises out of these paragraphs. (b) In paragraphs 13 and 14, the defendants advance their own claim, independent of the plaintiffs claim against the defendants. This claim is advanced against both the City of Saskatoon and William Hewitt. In these paragraphs the defendants allege that the third parties spoliated or destroyed evidence, and failed to assist the defendants in gathering evidence. [4] By notice of motion, the third parties ask that the third party claim be struck out. ISSUES (1) Do the provisions of s. 136.1(2) of The Urban Municipality Act, 1984, S.S. 1983-1984, c. U-11, and s. 34 of The Fire Prevention Act, 1992, S.S. 1992, c. F-15.001 prevent the defendants from taking proceedings against the third parties in this case and, if so, should the entire third party claim be struck out pursuant to Queen\'s Bench Rule 173(a)? (2) Should paragraphs 13, 14 and 16 be struck out, pursuant to Queen\'s Bench Rule 173(a), on the basis that these paragraphs do not disclose a reasonable cause of action in that the common law does not recognize a cause of action for the spoliage or destruction of evidence, nor for the failure to assist in the gathering of evidence, and, further, on the basis that the Third Parties did not owe a statutory duty to the defendants in this respect? (3) Should paragraphs 8 through 12 and paragraph 15 be struck out on the basis that the defendants have not obtained the leave of this Court to bring third party proceedings, as required by s. 7 of The Contributory Negligence Act, R.S.S. 1978, c. C-31? [5] Rule 173 of the Queen's Bench Rules provides: 173 The Court may at any stage of an action order any pleading or any part thereof to be struck out, with or without leave to amend, on the ground that: (a) it discloses no reasonable cause of action or defence, as the case may be. It is well settled that substantial onus is placed upon the applicant in Rule 173(a) motion. [6] As stated in McKeague and Voroney, The Queen's Bench Rules of Saskatchewan: Annotated (Regina: Law Society of Saskatchewan, 1995), this Rule is codification of the court's power under its inherent jurisdiction to stay actions that are an abuse of process or that disclose no reasonable cause of action. [7] It is inherent in the jurisdiction of every court to ensure that its process is not used simply to harass parties through the initiation of actions that are obviously without merit. The summary procedure of the Rule is only appropriate to cases which are plain and obvious. [8] The purpose of Rule 173 is to save the court and the parties the cost, time and inconvenience of dealing with seriously defective or unmeritorious pleadings, claims or defences (See RoyNat Inc. v. Northland Properties Ltd., 1993 CanLII 8877 (SK QB), [1994] W.W.R. 43 (Sask. Q.B.)). [9] It has long been the practice of the courts not to strike out statement of claim under Rule 173 unless it is abundantly clear that the pleadings disclose no reasonable cause of action. [10] In Great Northern Railway Co. v. Cole Agencies Ltd. (1964), 1964 CanLII 321 (SK QB), 49 W.W.R. 153 (Sask. Q.B.), Disbery J., on an application to strike out statement of claim as disclosing no reasonable cause of action brought under Rule 154(a), the predecessor to the present Rule 173(a), said at pp. 155-56: It is quite clear from the authorities that pleading should only be struck out when the application is made under R. 154 or its equivalent elsewhere, where the case is clear, obvious and beyond doubt so that, in the words of Lindley, M.R., "any master or judge can say at once" that the pleading is insufficient. [11] The only documents to be considered on an application under Rule 173(a) are the notice of motion, the statement of claim itself and the particulars furnished pursuant to demand therefor, and any document which is referred to in the statement of claim upon which the plaintiff must rely for the establishment of his claim (Lackmanec v. Hoffman (1982), 1982 CanLII 2585 (SK CA), 15 Sask. R. 1; [1982] W.W.R. 714 (Sask. C.A.)). [12] On an application to strike out statement of claim on the ground that it discloses no reasonable cause of action, the court must assume that every allegation of fact in the statement of claim is true, even if it appears to be very unlikely allegation that will be difficult to prove (Schmeichel v. Lane (1982), 1982 CanLII 2471 (SK QB), 28 Sask. R. 311 (Sask. Q.B.); Davies v. Dustin (1980), 1980 CanLII 2013 (SK QB), Sask. R. (Sask. Q.B.)). [13] The court cannot consider the statement of defence on an application to strike out statement of claim under Rule 173(a) (B Contracting Ltd. v. Atamanenko, [1987] Sask. D. 3702-02 (Q.B.)). [14] The Saskatchewan Court of Appeal in Sagon v. Royal Bank (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133, reviewed the principles that should be applied on motion to strike out pleading. At pp.139-140, Sherstobitoff J.A. stated: In determining whether claim should be struck as disclosing no reasonable cause of action, the test if whether, assuming the plaintiff proves everything alleged in his claim, there is nevertheless no reasonable chance of success, or to put it another way, no arguable case. The court should exercise its jurisdiction to strike on this ground only in plain and obvious cases and where the court is satisfied that the case is beyond doubt: Marshall v. Saskatchewan, Government of, Petz and Adams (1983), 1982 CanLII 2387 (SK CA), 20 Sask. R. 309 (C.A.); The Attorney General of Canada v. Inuit Tapirisat, 1980 CanLII 21 (SCC), [1980] S.C.R. 735; 33 N.R. 304. The court may consider only the statement of claim, any particulars furnished pursuant to demand, and any document referred to in the claim upon which the plaintiff must rely to establish his case: Balacko v. Eaton's of Canada Limited (1967), 1967 CanLII 369 (SK QB), 60 W.W.R. (N.S.) 22 (Sask. Q.B.); Lackmanec v. Hoffman and Wall (1982), 1982 CanLII 2585 (SK CA), 15 Sask. R. (C.A.). [15] This proposition was articulated by the Supreme Court of Canada in the case of Canada (Attorney General) v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] S.C.R. 735, in which it stated that the court should only strike out statement of claim "in plain and obvious cases and where the court is satisfied that the case is beyond doubt". (1) Do the provisions of s. 136.1(2) of The Urban Municipality Act, 1984, S.S. 1983-1984, c. U-11, and s. 34 of The Fire Prevention Act, 1992, S.S. 1992, c. F-15.001 prevent the defendants from taking proceedings against the third parties in this case and, if so, should the entire third party claim be struck out pursuant to Queen's Bench Rule 173(a)? [16] The essence of the third parties' position, on this issue, is that, subject to their duty to act in good faith, they cannot be found to be liable to the defendants in negligence. In this respect, the relevant portions of ss. 136.(2) of The Urban Municipality Act, 1984, read as follows: 136(1) council may: (a) by bylaw establish fire department or one or more fire brigades, and may by contract or otherwise provide for the prevention and suppression of fires and provide for services of any kind at the site of an emergency, including but not limited to: (i) fire prevention and protection; (ii) emergency response services; (iii) inspections of premises for conditions that may cause fire, increase the danger of fire or otherwise increase danger to persons or property. (iv) inspections for compliance with municipal fire prevention bylaws and The Fire Prevention Act, 1992; 136.1(1) For the purposes of this section, "firefighter" means person performing duties for an urban municipality, whether for wage or otherwise, pursuant to section 136 of The Fire Prevention Act, 1992 or regulations made pursuant to that Act. (2) No action lies or shall be instituted against firefighter for any loss or damage suffered by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done by the firefighter while performing his or her duties as firefighter. [17] The material sections in The Fire Prevention Act, 1992, are as follows: In this Act: (h) "local assistant" means: (i) in city, town, village, resort village or northern municipality where fire department is established, the fire chief or acting fire chief. 11 Every local assistant shall: (a) administer and enforce this Act within the local assistant's jurisdiction. 15(1) Every local assistant shall investigate, or cause to be investigated, the cause, origin and circumstances of every fire in the local assistant's jurisdiction. 34 No action lies or shall be instituted against the minister, fire inspector, municipality, fire department or member of fire department, or peace officer, where the minister, fire inspector, municipality, fire department or member of fire department, or peace officer is acting pursuant to the authority of this Act, the regulations or an order made pursuant to this Act, for any loss or damage suffered by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done, by any of them, pursuant to or in the exercise or supposed exercise of any power conferred by this Act or the regulations or in the carrying out or supposed carrying out of any order made pursuant to this Act or any duty imposed by this Act or the regulations. [18] characterization of the position of the third parties is that subject to their duty to act in good faith, they cannot be found to be liable to the defendants in negligence. [19] This section was judicially considered by Hrabinsky J. in the case of Hunters Trailer Marine Ltd. v. North Battleford (City), [1993] S.J. No. 634 (Q.L.) (Sask. Q.B.). Hrabinsky J. was faced with the interpretation of ss. 34(2) of The Fire Protection Act, 1980, S.S. 1979-80, c. F-15.01, s. 34(2). This section reads as follows: 34(2) No action lies against any municipality or against any member of fire department for any loss or damage suffered by reason of anything done with reasonable care or omitted to be done in good faith in carrying out the provisions of section 10. Althought that section has now been amended, the amendments, in my view, are not relevant to the issues in the case at bar. [20] Hrabinsky J. held that this statutory limitation does not nullify the action since determination must be made as to whether the defendants did what they did with reasonable care or omitted to do what was to be done in good faith. Hrabinsky J. states in part as follows: §9 In the Attorney General of Canada v. Inuit Taparisat of Canada et al., 1980 CanLII 21 (SCC), [1980] S.C.R. 735 at p. 740 (S.C.C.), the court stated: all the facts pleaded in the statement of claim must be deemed to have been proven. On motion such as this court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that "the case is beyond doubt". §10 The statement of claim clearly alleges that the individual defendants were employees of the corporate defendant and that they were negligent in the course of their employment which negligence resulted in loss to the plaintiff. §11 In Halsbury's Laws of England, 4th Ed., Vol. 16, p. 519, para. 753, there is the following: 753. Liability independent of contract of employment. As general rule an employee who commits tort is liable in damages to the person injured, and his liability is not affected by the existence of contract of employment or, where he commits the tort in the course of his employment and within the scope of his authority, by the existence of the corresponding liability of his employer for the same tort, since he is the actual tortfeasor. An employee cannot, therefore, excuse himself from liability for his own act on the ground that he did it solely in his capacity as the employee of another, and that, but for the existence of the contract of employment, he would not have done it at all. Thus, it is no defence to the employee that, in doing the act complained of, he was obeying his employer's express orders, or that his employer subsequently adopted or ratified it, unless the act is thereby deprived of its tortious character. Similarly, it is no defence that he himself gained no personal benefit by his tort, but that he acted solely on his employer's behalf and in his employer's interest; nor can he escape responsibility on the ground that he did not know and had no reason to know or to suspect that the act in question was tortious, unless the act is incapable of being regarded as tort in the absence of actual or imputed knowledge that it is wrongful. Even the fact that the employer who commanded the act to be done was innocent of any intention to do any wrong, and genuinely believed that he was entitled to command the employee to do it, does not excuse his employee if the act, when done, is in fact tort. §12 In recent decision of the Supreme Court of Canada, London Drugs Ltd. v, Kuehne and Nagel International Ltd. (1992), 1992 CanLII 41 (SCC), 97 D.L.R. (4th) 261 the majority decision held that the individual employees whose negligence resulted in loss to the plaintiff owed duty of care to the plaintiff and upheld the decision of the British Columbia Court of Appeal which held that both the employer and the individual employees were liable. The majority decision held that the question of whether duty of care arises will depend on the circumstances of each case. §13 find that the statement of claim discloses cause of action. The question of whether the individual defendants owed duty of care is matter to be determined by the trial judge and is not to be decided on summary application such as this. §15 This statutory limitation does not nullify the action since determination must be made as to whether the defendants did what they did with reasonable care or omitted to do what was to be done in good faith. Since have concluded that on its face the statement of claim discloses cause of action it is not appropriate to make any decision with respect to s. 34(2) of The Fire Prevention Act on an application pursuant to Rule 173. This is matter for the determination of point of law which will be determined by the trial judge unless the parties perceive this may be decided pursuant to Queen's Bench Rule 188. [21] The third parties submit that Hrabinsky J. was in error when he held that s. 34 did not nullify an action for omitting what was to be done in good faith. On the face of the statement of claim, it is submitted that the allegation of negligence for an omission to act cannot possibly have succeeded. It was argued that the court need not embark on determination as to whether the defendants' omissions were "in good faith" unless lack of good faith is raised in the statement of claim. [22] I agree with Hrabinsky J. Here in the third party claim it is alleged that the fire department of the City of Saskatoon was negligent in managing the fire and in the post-fire investigation. It is arguable on the pleadings that the third parties did not act in good faith in that it is alleged that they deliberately set out to suppress information and destroy evidence. On that basis alone I am satisfied that the defendants have an arguable case and that the third party claim discloses a reasonable cause of action. (2) Should paragraphs 13, 14 and 16 be struck out, pursuant to Queen's Bench Rule 173(a), on the basis that these paragraphs do not disclose reasonable cause of action in that the common law does not recognize cause of action for the spoliage or destruction of evidence, nor for the failure to assist in the gathering of evidence, and, further, on the basis that the Third Parties did not owe statutory duty to the defendants in this respect? [23] In my view, the allegations are relevant in respect to the contention that the third parties have not acted in good faith. If this is established then it is clear that the statutory limitations would not nullify the third party claim. (3) Should paragraphs through 12 and paragraph 15 be struck out on the basis that the defendants have not obtained the leave of this Court to bring third party proceedings, as required by s. of The Contributory Negligence Act, R.S.S. 1978, c. C-31? [24] It is conceded by the defendants that leave to commence the proposed third party claim is prescribed pursuant to s. of the act. The defendants have therefore served notice of motion requesting leave. This order is sought nunc pro tunc. [25] In Lepage v. Board of Education of Regina School Division No. (1996), 1996 CanLII 6908 (SK QB), 150 Sask. R. 233 (Sask. Q.B.) Zarzeczny J. applied the test prescribed in Saskatchewan Transportation Co. v. Royal Bank of Canada and Reid Crowther Partners Limited et al. (No. 2) (1986), 1986 CanLII 3086 (SK QB), 56 Sask. R. 157 (Sask. Q.B.) which requires the applicant to allege prima facie claim which, if established, would entitle the defendants to take proceedings against the third party. This is analogous to the case at bar. CONCLUSION [26] As the third parties have not established that it is plain and obvious that the impugned claim cannot succeed, the application is dismissed. [27] As to s. 7 of The Contributory Negligence Act, I hereby grant the defendants leave nunc pro tunc to bring third party proceedings against the third parties. [28] Costs of these application shall be costs in the cause.
An application to strike out the third party claim as not disclosing a reasonable cause of action. The plaintiffs brought a claim in contract and tort alleging Hagblom caused a fire in their building. The third party claim alleged negligence by the city's fire department in managing the fire and in the post-fire investigation. The third parties argued that, subject to their duty to act in good faith, they could not be found liable to the defendants in negligence. In issue was whether s.136.1(2) of the Urban Municipality Act and s.34 of the Fire Prevention Act prevented the defendants from taking proceedings against the third parties; whether certain paragraphs should be struck on the basis the common law does not recognize a cause of action for spoiled or destroyed evidence and failure to assist in gathering evidence on the basis the third parties did not owe a statutory duty to the defendants; whether certain paragraphs should be struck as the defendants had not obtained leave to bring third party proceedings as required by s.7 of the Contributory Negligence Act. HELD: The application was dismissed. Leave was granted nunc pro tunc to bring third party proceedings. (1)The third party claim disclosed a reasonable cause of action. It was not plain and obvious the claim could not succeed. It was arguable on the pleadings that the third parties did not act in good faith in that it was alleged they deliberately set out to suppress information and destroy evidence. (2)The statutory limitations will not nullify the third party claim if the allegations relevant to the contention that the third parties did not act in good faith are proven.