FD: ACN=4836 ACC=R FD: DT:D DN: 816/87 STY:Pritchett et al. v. O'Sullivan et al. PANEL: Thomas; Robillard; Preston DDATE: ACT: 15, 8(9),

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1 FD: ACN=4836 ACC=R FD: DT:D DN: 816/87 STY:Pritchett et al. v. O'Sullivan et al. PANEL: Thomas; Robillard; Preston DDATE: ACT: 15, 8(9), 8(10), 8(11) KEYW: Right to sue; Supplier of motor vehicle, machinery or equipment; Damages, contribution or indemnity. SUM: Plaintiff's right of action taken away as against defendant driver but not taken away as against leasing company that leased vehicle to driver's employer. Right to damages restricted so as not to include damages attributable to driver. PDCON: TYPE:15; S DIST: DECON: 337, 725 SCON: Family Law Reform Act R.S.O 1980 c. 152, s. 60 CCON: Ling v. Transamerica Commercial Corp. 31 O.R. (2d) 32 IDATE: HDATE: TCO:G. Dee KEYPER:M. Hayden; S. Fixter; R. Kostyniuk XREF: COMMENTS: TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 816/87 IN THE MATTER OF an application pursuant to section 15 of the Workers' Compensation Act, R.S.O. 1980, c. 539, as amended. AND IN THE MATTER OF an action commenced in the District Court of Ontario at the City of Toronto as Action No /86. B E T W E E N: IVAN PRITCHETT PARKWOOD CENTRAL LEASING LIMITED AND RAFFAELE PORCO Applicants in this application and Defendants in the District Court of Ontario Action. MICHAEL O'SULLIVAN AND YWETTE O'SULLIVAN Respondents in this application and Plaintiffs in the District Court of Ontario Action.

3 WORKERS' COMPENSATlON APPEALS TRIBUNAL DECISION NO. 816/87 IN THE MATTER OF an application pursuant to section 15 of the Workers' Compensation Act. AND IN THE MATTER OF an action commenced in the District Court of Ontario at the City of Toronto as Action No /86. B E T W E E N: IVAN PRITCHETT PARKOOD CENTRAL LEASING LIMITED AND RAFFAELE PORCO Applicants/Defendants - and - MICHAEL O'SULLIVAN AND YVETTE O'SULLIVAN Respondents/Plaintiffs WORKERS' COMPENSATION ACT SECTION 15 APPLICATION

4 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 816/87 This Section 15 Application was heard on July 27, 1987, by: J. Thomas : Panel Chairman, M. Robillard: Tribunal Member representative of workers, K.V. Preston: Tribunal Member representative of employers. THE SECTION 15 APPLICATION This application arises out of a lawsuit commenced in the District Court of Ontario as Action No /86. The Plaintiffs in that lawsuit are Michael O'Sullivan and Yvette O'Sullivan. Yvette O'Sullivan claims under the provisions of the Family Law Reform Act. The Plaintiffs are the Respondents in this application. The Defendants in the lawsuit are Ivan Pritchett, Parkwood Central Leasing Limited ("Parkwood") and Raffaele Porco. Parkwood and Mr. Pritchett are the Applicants to this Section 15 Application. They were represented by M. Hayden, solicitor. Mr. Porco supported the application and was represented by S. Fixter, solicitor. The Plaintiff/Respondents were represented by R. Kostyniuk, solicitor. The Panel was assisted at the outset of the hearing by G. Dee from the Tribunal Counsel Office. Mr. O'Sullivan's employer, Clifford Electronics, was given notice of the hearing. An individual from Clifford Electronics attended at the Tribunal on the day of the hearing, but was advised that evidence from Clifford Electronics would not be necessary. The individual from Clifford Electronics did not attend the hearing. THE EVIDENCE The Applicant's statement of argument and evidence was marked as Exhibit 1. The statement of fact and law of the Respondent Raffaele Porco was marked as Exhibit 2. The Respondents' statement was marked as Exhibit 3. The Respondent, Michael O'Sullivan, testified at the hearing. THE NATURE OF THE CASE The lawsuit giving rise to this application resulted from a motor vehicle accident which occurred on January 14, Messrs. O'Sullivan, Pritchett and Porco were driving separate vehicles which were involved in collisions with one another. Mr. Pritchett was driving a vehicle which was owned by Parkwood and leased to Mr. Pritchett's employer, United Corrugated Packaging. Section 8(9) of the Workers' Compensation Act sets out the circumstances in which a right of action is taken away. In effect, a right of action is

5 2 taken away where the workers of Schedule 1 employers were in the course of their employment at the time of the happening of the injury. Sect!o" 8(9) be found in the appendix to this decision. At the outset of the hearing, the parties agreed that Mr. Pritchett was a worker of a Schedule 1 employer and was in the course of his employment when the accident occurred. The parties also agreed that Mr. Porco was not in the course of his employment when the accident occurred. The parties further agreed that Mr. O'Sullivan was a worker of a Schedule 1 employer. Mr. O'Sullivan described for the Panel his actions on January 14, 1985, at the time of the accident. We are satisfied, and it was not disputed by Mr. Kostyniuk, that Mr. O'Sullivan was in the course of his employment as a television repairman when the accident occurred. Accordingly, we conclude that Mr. O'Sullivan's right of action against Mr. Pritchett is taken away by section 8(9) of the Workers' Compensation Act. we also conclude, and it was not disputed, that the right of action of Yvette O'Sullivan, claiming under the provisions of the Family Law Reform Act is likewise taken away against Mr. Pritchett. e further conclude that the Plaintiffs' right of action against Mr. Porco is not taken away by the Workers' Compensation Act because it was agreed that Mr. Porco was not in the course of his employment when the accident occurred. The issues that fall to be determined in this application are the following: 1. Does the Workers' Compensation Act protect Parkwood against the lawsuit brought by the O'Sullivans? 2. What effect does section 8(11) have on the right to recover damages? THE PANEL S REASON (i) Was the Workers' Compensation Act protect Parkwood against the lawsuit bought by the O'Sullivans? Parkwood leased a vehicle to Mr. Pritchett's employer. In our view, Parkwood is not afforded the protection against lawsuits which is found in section 8(9). This protection is taken away by section 8(10) which provides as follows: 8(10) Subsection (9) does not apply where the employer has supplied a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate such motor vehicle, machinery or equipment. In our view, Parkwood is an employer who has supplied a motor vehicle on a rental basis without also supplying workers to operate the vehicle. Accordingly, the right of action against Parkwood is not defeated by section 8(9). A similar situation faced another panel of this Tribunal in In that decision, the Hearing Panel described in detail the operation of section 8(10). we concur with the reasoning in that decision.

6 3 (ii) what effect does section 8(11) have on the right to recover damages? The Workers' Compensation Act not only places restrictions on a plaintiff's right of action but also on the Plaintiff's right to recover damages. We have concluded that the O'Sullivans' right of action cannot be maintained against Mr. Pritchett but can go forward against Parkwood and Mr. Porco. Obviously, if a party's right of action is taken away, there can be no right to recover damages against that party because the lawsuit is finished with respect to that party. However, where the right of action is not taken away, section 8(11) of the Act imposes certain restrictions on a plaintiff's right to recover damages in circumstances where one or more of the Defendants is a Schedule 1 worker or employer. Section 8(11) is set out in the appendix. Decision No. 725 addressed the issue of whether a plaintiff has a right of recovery against a leasing company for negligence caused by a Schedule 1 worker who was the driver of the leased vehicle. That situation is analogous to this case. The Panel reviewed the relevant law, including the Divisional Court decision in Ling v. Transamerica Commercial Corp. Ltd. (1980) 31 O.R. 32 (Divisional Court)- In the case, the Divisional Court stated at page 36: It seems to me that the intention of the legislature was to confer jurisdiction to bar, in the facts of this case, recovery of damages against the owner of the vehicle involved in the accident giving rise to the litigation, even though the owner is a stranger to the act. If the Plaintiff's submission is correct, and subsection 11 is inapplicable to Transamerica, then it would follow that Transamerica would be liable to pay 100% of the damages but it would be deprived of its common law right of indemnity from driver Buettner. If it was the legislative intention to deprive Transamerica of its common law right of indemnity from the driver Buettner, would not the legislature have used different language? I think so. The Hearing Panel in Decision No. 725 adopted the reasoning of the Divisional Court and concluded at page 9 of Decision No. 725: This means that Grant Brown Leasing Inc. is subject to suit, but that pursuant to section 8(11) it is not liable for the negligence of the worker of an employer who has leased a vehicle or the negligence of any Schedule 1 employer or employee. We agree with the reasoning in the case and in Decision No We conclude that the Plaintiffs do not have a right of recovery against Parkwood for the negligence of Mr. Pritchett. Were we to find otherwise, we would impose liability on Parkwood who would be deprived of its common law right of indemnity from Mr. Pritchett. Similarly, we conclude that the effect of section 8(11) is to prevent the Plaintiffs from recovering damages from Mr. Porco for the portion of negligence occasioned by Mr. Pritchett. As was indicated in Decision No. 337 of this Tribunal, section 8(11) is an apportionment section. It prevents plaintiffs from recovering "damages contribution or indemnity... for the port!on of the

7 4 loss or damage caused by the fault or negl{ence of a worker in Schedule 1..." In our view, the effect of section 8(11) is to render Mr. Porco severally liable for damages. This means that he is responsible for his own direct negligence, just as Parkwood would be responsible for its own direct negligence. He is not, however, responsible for the portion of the negligence that may ultimately be attributed to Mr. Pritchett. THE DECISION The application is allowed. The Panel concludes that the Plaintiffs' right of action against the Defendant, Ivan Pritchett, is taken away by the Workers' Compensation Act. The Panel further concludes that the Plaintiffs' right of action against Parkwood Central Leasing Limited and Raffaele Porco is not taken away by the Workers' Compensation Act. However, the Plaintiffs' right to damages against Parkwood Central Leasing Limited and Raffaele Porco is restricted so as not to include the portion of damages which is attributed to the Defendant, Ivan Pritchett. DATED at Toronto, this 2nd day of September, SIGNED: J. Thomas, M. Robillard, K.W. Preston.

8 APPENDIX 8(9) No employer in Schedule 1 and no worker of an employer in Schedule 1 or dependant of such worker has a right of action for damages against any employer in Schedule 1 or any worker of such employer, for an injury for which benefits are payable under this Act, where the workers of both employers were in the course of their employment at the time of the happening of the injury, but, in any case where the Board is satisfied that the accident giving rise to the injury was caused by the negligence of some other employer or employers in Schedule 1 or their workers, the Board may direct that the benefits awarded in any such case or a proportion of them shall be charged against the class or group to which such other employer or employers belong and to the accident cost record of such individual employer or employers. 8(11) In any action brought by a worker of an employer in Schedule 1 or dependant of such worker in any case within subsection (1) or maintained by the Board under subsection (4) and one or more of the persons found to be at fault or negligent is the employer of the worker in Schedule 1, or any other employer in Schedule 1, or any worker of any employer in Schedule 1, no damages, contribution or indemnity are recoverable for the portion of the loss or damage caused by the fault or negligence of such employer of the worker in Schedule 1, or of any other employer in Schedule 1, and the portion of the loss or damage so caused by the fault or negligence of such employer of the worker in Schedule 1, or of any other employer in Schedule 1, shall be determined although such employer or worker is not a party to the action.