FD: FD: DT:D DN: 357/93 STY:Ontario Hydro v. Frontier Hydraulics Ltd. PANEL: Faubert; M. Cook; Ronson DDATE: ACT: *10(12) KEYW: Right to sue

Transcription

1 FD: FD: DT:D DN: 357/93 STY:Ontario Hydro v. Frontier Hydraulics Ltd. PANEL: Faubert; M. Cook; Ronson DDATE: ACT: *10(12) KEYW: Right to sue (third party claims); Damages, contribution or indemnity. SUM: The third party in a civil case applied for an order that the defendant has no right to recover damages, contribution or indemnity against it connection with the action. The plaintiff was a worker of the third party. The plaintiff was injured when the bucket on a bucket truck fell to the ground. The plaintiff commenced the action against the defendant, which had been retained by the third party to service the truck. The defendant brought the third party proceedings alleging that the plaintiff's injuries resulted from negligence of the plaintiff and the third party. Section 10(12) was applicable. It was sufficiently broad to limit a claim for contribution or indemnity against a worker's employer, whether the employer is a co-defendant or a third party in the plaintiff worker's action. [7 pages] PDCON: TYPE: DIST: DECON: Decision No. 335 (1987), 4 W.C.A.T.R. 149 consd; Decision No. 146/90 (1990), 14 W.C.A.T.R. 278 refd to; Decisions No. 360 consd, 634/91 refd to CCON: DiCarlo v. DiSimone (1982), 39 O.R. 445, (Ont. H.C.J.) refd to; Meyer v. Ontario (Workers' Compensation Board) (1986), 15 O.A.C. 202 (Div. Ct.) refd to IDATE: HDATE: TCO: KEYPER: J. Prior, barrister and solicitor. The Plaintiffs were represented by A. Loucks TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 357/93 IN THE MATTER OF an application pursuant to section 17 of the Workers' Compensation Act, R.S.O. 1990, c. W.11. AND IN THE MATTER OF an action commenced in the Ontario Court (General Division) at the City of Toronto as Action No. 6734A/89. B E T W E E N: ONTARIO HYDRO Applicant and Third Party in the Ontario Court (General Division) Action. FRONTIER HYDRAULICS LTD. Respondent in this application and Defendant in the Ontario Court (General Division) Action. KEN GUNBY, RUTH GUNBY, KIMBERLY GUNBY, and RANDY GUNBY Interested Parties in this application and Plaintiffs in the Ontario Court (General Division) Action.

3 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 357/93 IN THE MATTER OF an application pursuant to section 17 of the Workers' Compensation Act. AND IN THE MATTER OF an action commenced in the Ontario Court (General Division) at the City of Toronto, as Action No. 6734A/89. B E T W E E N: ONTARIO HYDRO Applicant/Third Party FRONTIER HYDRAULICS LTD. Respondent/Defendant KEN GUNBY, RUTH GUNBY, KIMBERLY GUNBY, and RANDY GUNBY Interested Parties/Plaintiffs WORKERS' COMPENSATION ACT SECTION 17 APPLICATION

4 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 357/93 This Section 17 Application was heard in Toronto on June 7, 1993, by a Tribunal Panel consisting of: M.J. Faubert: Vice-Chair, J.C. Ronson : Member representative of employers, M. Cook : Member representative of workers. THE SECTION 17 APPLICATION This Section 17 Application arises out of an action brought by Ken Gunby and the next of kin of Ken Gunby against Frontier Hydraulics Limited. Mr. Gunby is an employee of Ontario Hydro, who was injured while acting in the course of his employment on May 12, The Defendant has commenced a third party action against the Applicant, Ontario Hydro, for contribution and indemnity with respect to any judgment obtained by the Plaintiffs against it. In that action, the Defendant alleges that the accident was a result of the Plaintiff Ken Gunby's and the Third Party's negligence. The Applicant, Ontario Hydro asks for a declaration under section 17 of the Workers' Compensation Act that the Defendant has no right to recover damages, contribution, or indemnity against Ontario Hydro in connection with this action. The Applicant was represented by J. Prior, barrister and solicitor. The Plaintiffs were represented by A. Loucks, who attended to observe the proceedings. The Respondent/Defendant's solicitor, B. Brock, informed the Tribunal in his correspondence of May 4, 1993, that the Respondent does not oppose this application. THE EVIDENCE The Panel read the Applicant's statement and the case law submitted by the Applicant. We also reviewed correspondence passing between the Tribunal, and the solicitors for the Applicant and the Respondent. We heard evidence under oath from K. MacArthur, assistant compensation and benefits officer for Ontario Hydro. THE NATURE OF THE CASE There is no dispute with respect to the facts in this case. At the time of the accident on May 12, 1988, the Plaintiff, Ken Gunby, was an employee of Ontario Hydro, a Schedule 2 employer reporting to the Workers' Compensation Board. Mr. Gunby was employed as a power line maintainer, and was working upgrading power lines on the day in question. For that purpose, he was working in a "bucket truck" with another worker. The arm of the bucket

5 2 collapsed, and the bucket fell to the ground, resulting in injury to Mr. Gunby. Mr. Gunby and his next of kin commenced an action against the Defendant, Frontier Hydraulics Limited. In that action, the Plaintiffs allege that the collapse of the aerial device was caused by the negligence of the Defendant, who had been retained by Ontario Hydro to service the apparatus in question. In its Statement of Defence and its Third Party Claim, Frontier Hydraulics Ltd. alleges that the injuries of the Plaintiff, Ken Gunby, resulted from the negligence of the Plaintiff and of his employer, Ontario Hydro. In this application, Ontario Hydro submits that the Defendant is not entitled to make any claim for recovery against it, since such claim is barred by the provisions of section 10(12) of the Workers' Compensation Act. THE PANEL'S REASONS (i) Legislative background Section 16 of the Workers' Compensation Act removes the right of action of a worker or the members of a worker's family against the employer of such worker with respect to accidents occurring to the worker while in the employment of such employer. However, where an accident arising out of and in the course of a worker's employment entitles the worker to an action against some person other than his or her employer, the worker may claim such benefits or bring such action (section 10(1)). In this case, Mr. Gunby has elected to bring an action against Frontier Hydraulics Ltd. Ontario Hydro brings this application pursuant to section 17 of the Act, which provides: 17 Any party to an action may apply to the Appeals Tribunal for adjudication and determination of the question of the plaintiff's right to compensation under this Part, or as to whether the action is one the right to bring which is taken away by this Part, or whether the action is one in which the right to recover damages, contribution, or indemnity is limited by this Part, and such adjudication and determination is final and conclusive. Ontario Hydro seeks a determination of the question of whether the Defendant's right to recover damages, contribution or indemnity against Ontario Hydro is limited by Part 1 of the Act. Ontario Hydro relies upon section 10(12), which provides: 10(12) In any action brought by a worker of an employer in Schedule 2 or dependant of such worker in any case within subsection (1) or maintained by the employer of the worker under subsection (4) and one or more of the persons found to be at fault or

6 3 negligent is the employer of the worker in Schedule 2 or an executive officer or director thereof, no damages, contribution or indemnity are recoverable for the portion of the loss or damage caused by the fault or negligence of such employer or executive officer or director and the portion of the loss or damage so caused by the fault or negligence of such employer or executive officer or director shall be determined although such employer or executive officer or director is not a party to the action. Ms. Prior referred the Panel to several Tribunal decisions which have considered similar issues arising out of actions commenced by workers who had been injured in the course of their employment. In Decision No. 360 (September 1, 1987), the defendant in an action had issued a Third Party claim against the plaintiff/worker's employer, a Schedule 2 employer under the Act. The Panel noted that the provisions of section 14 (now section 16) of the Act prohibited the plaintiffs from bringing a direct action against the employer. It concluded that to allow the defendants to recover contribution and indemnity against the employer would be to allow the plaintiffs to do indirectly what they were prohibited from doing directly. The Panel found that the plaintiffs could not recover those damages attributable to the fault or negligence of the plaintiff/worker's employer, and ordered that no damages, contribution or indemnity was recoverable for that portion of the loss or damage so caused by the fault of that employer. The Panel in Decision No. 335, 4 W.C.A.T.R. 149, reached a similar conclusion, based upon slightly different reasoning. In that case, the Panel noted that it had not been asked to determine whether the third party claim should be struck. It confined its decision to the conclusion that no damages, contribution or indemnity were recoverable from the plaintiff/worker's employer, who was a third party to the action. In reaching this conclusion, the Panel wrote: In our view, a defendant cannot do by way of third party claim what the worker could not do directly-that is, recover damages, contribution or indemnity from the employer for any employer's negligence in the worker's action. (p. 152, emphasis added) (See also Decision No. 764/90, 19 W.C.A.T.R. 218.) Significantly, the Decision No. 335 Panel noted that this conclusion did not mean that the defendants would be obliged to pay any portion of damages attributable to the employer. The Panel relied upon two decisions of the Ontario courts (DiCarlo v. DiSimone (1982), 39 O.R. (2d) 445, 140 D.L.R. (3d) 477 (Ont. H.C.), and Meyer v. W.C.B. (Ont.) (1986), 15 O.A.C. 202 (sub nom Meyer v. Waycon International Trucks Ltd.) (Ont. Div. Ct.), reversed in part (Ont. C.A., Holden, Morden, Robins JJ.A., March 22, 1988) as authority for the proposition that section 8(11) (now section 10(11), and comparable to section 10(12)), is an apportionment section, which provides that defendants who are not protected by the Act are not responsible for the portion of damages

7 4 relating to the negligence of employers or workers who are protected from suit by the Act. In our view, it is this principle which is directly relevant to this application. Briefly, section 10(12) provides that in an action brought by a worker of an employer in Schedule 2 under section 10(1), where one or more of the persons found to be at fault is the employer of the worker in Schedule 2, no damages, contribution or indemnity are recoverable for the portion of the loss or damage caused by the fault or negligence of such employer. Although it has been held that the Appeals Tribunal lacks the jurisdiction to remove the right of a non-employer defendant to bring a third party action against a plaintiff's employer (see Decision No. 643/91, (February 11, 1992)), this does not mean that section 10(11) or 10(12) cannot be applied to limit the right of recovery in such cases. Section 17 provides the Tribunal with the jurisdiction to determine whether the right to recover damages, contribution or indemnity is limited by Part 1 of the Act. The words of section 10(12) are sufficiently broad to limit a claim for contribution or indemnity against a worker's employer, whether the employer is a co-defendant or a third party in the plaintiff/worker's action. Accordingly, the Applicant is entitled to the order it seeks. THE DECISION The application is allowed. The Defendant Frontier Hydraulics Ltd. has no right to recover damages, contribution or indemnity against Ontario Hydro for the portion of loss or damage caused to Ken Gunby by the fault or negligence of Ontario Hydro. DATED at Toronto, this 22nd day of July, SIGNED: M.J. Faubert, J.C. Ronson, M. Cook.