Pederson v Norton, 2012 ABQB 304

Court of Queen ’ s Bench of Alberta Citation: Pederson v Norton, 2012 ABQB 304 Date: 20120509 Docket: 0403 14597 Registry: Edmonton Between: Kathryn Pederson Plaintiff - and - Robert Norton and John Doe, Raona May Danyluk, and Jack W.L. Day Also Known As Jack W.L. Burnam Defendants - and - Economical Mutual Insurance Company Defendant by Order _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ Introduction

[ 1 ] The parties disagree as to the effect of a partial Judgment entered February 1, 2007. For reasons which follow, the partial Judgment entitles the Plaintiff to pursue her claims against the defendants Robert Norton and John Doe and in part, against Raona May Danyluk. Background [ 2 ] The facts are not much in dispute.

Pederson sustained injuries and damages in a rear end collision on February 17, 2003. [ 3 ] Pederson had only a very fleeting glimpse of the operator of the vehicle that hit her, viewed in her rearview mirror, before her glasses fell off in the collision. [ 4 ] The vehicle’s owner Danyluk stated in questioning she gave her vehicle to Jack Day the night before the collision. She gave it to him with instructions that he drive himself home, then put the vehicle’s key under the mat. Danyluk stated she was to pick the vehicle up the next day. She did not, she said owing to family issues.

She alleges that while the vehicle was parked in front of Day’s residence it was stolen. [ 5 ] A Statement of Claim issued July 22, 2004 naming as Defendants John Doe, John Doe #1 and the Administrator of the Motor Vehicle Accident Claims Act (“ the Act ”) . [ 6 ] The claim was amended and filed January 18, 2005 adding the Defendant Danyluk. [ 7 ] The claim was amended a second time and filed February 15, 2005 adding the Defendants Colleen M. Dumont and Wade M. Dumont. [ 8 ] The Statement of Claim was amended a third time and filed October 13, 2005 substituting Jack W.L.Day a.k.a. Jack W.L.

Burnham for John Doe #1. [ 9 ] A partial Judgment was granted February 1, 2007. [ 10 ] An Order was granted March 16, 2007 adding the SEF 44 insurer, the Economical Mutual Insurance Company, to the action as a Defendant by Order. [ 11 ] An Order was granted December 17, 2007 substituting “Robert Norton and John Doe” for John Doe. That resulted in a fourth amendment to the Statement of Claim, filed March 6, 2008. [ 12 ] Norton opposed the amendment.

He did not appeal the order allowing the amendment, for example on the basis that by way of the partial Judgment the action had merged precluding any further proceedings against him as a substituted Defendant. His Statement of Defence filed July 16, 2008 is general in nature. It says nothing about res judicata , merger or estoppel issues. [ 13 ] The action has been discontinued as against Jack Day, and as against Wade Dumont and Colleen Dumont, leaving as of March 6, 2008 the parties as Pederson v.

Danyluk, Norton, John Doe and the Administrator as defendants, and the Economical as defendant by order. [ 14 ] In an attempt to identify the driver of Danyluk’s vehicle, on July 22, 2005 Pederson obtained an order giving her access to the complete investigation file of the Edmonton Police Service. The police investigation showed EPS determined the vehicle was stolen and

the operator was unknown. [ 15 ] The partial Judgment expressly allows Pederson to continue her action against John Doe and Danyluk “to the full extent that she has claims against them for any amounts in excess of $200,000”. [ 16 ] The form of partial Judgment was consented to by the Administrator. It was not consented or agreed to by Danyluk. Danyluk however was represented by counsel. Her counsel had notice of the application for partial Judgment. Her counsel was present in court when the partial Judgment was applied for and granted. Her counsel took no

part in those proceedings. Danyluk did not appeal the partial Judgment. [ 17 ] Pederson swore a statutory declaration March 6, 2007. The declaration was a necessary part of her application to obtain payment from the Administrator of the partial Judgment. [ 18 ] As noted, some 11 days later, on March 16, 2007, the Economical applied to be added to Pederson’s action as a defendant by order.

The Economical’s Statement of Defence filed July 5, 2007 specifically alleges Robert Norton was a driver of the Danyluk vehicle in the collision, and was operating and in possession of that vehicle with Danyluk’s consent, express or implied, identifying Danyluk in law with Norton’s alleged negligence. [ 19 ] Pederson swore an affidavit filed August 20, 2007 in support of an order substituting “Robert Norton and John Doe” in place of John Doe in the original claim.

That order was given December 17, 2007. [ 20 ] In December 2007 a private investigator was hired to locate one Amanda Weatherbee, Norton’s former girlfriend, after no success with earlier attempts to locate her. [ 21 ] Some six months later, on June 10, 2008, Norton was served with the fourth-amended Statement of Claim. [ 22 ] Norton was questioned on March 23, 2009. He denied any involvement or liability for the events of February 17, 2003 giving rise to the collision and Pederson’s alleged damages. [ 23 ] Almost two years later, on June 28, 2010, Amanda Weatherbee, now Amanda Goeseels, was located.

She provided a statement. She subsequently provided a sworn affidavit, on August 9, 2010. The affidavit was sworn in opposition to Norton’s application, filed May 25, 2010, for

summary dismissal of the action against him. [ 24 ] Goeseels was questioned on her affidavit on August 16, 2010. Norton’s application for

summary judgment has not proceeded. [ 25 ] Pederson’s affidavit sworn August 16, 2007 states she believes Robert Norton was the “mystery driver” operating the vehicle that rear ended her on February 17, 2003. “Until I meet and my counsel examines Robert Norton” she says “I cannot be sure that he wasn’t the driver”. [ 26 ] She swore the affidavit in support of an order to amend the Statement of Claim for a fourth time substituting Norton and John Doe for “John Doe” in the claim as it stood at the time the partial Judgment was granted. [ 27 ] Pederson was further examined on April 10, 2012 having sworn an Affidavit March 20, 2012.

She acknowledged that in 2005 questions were raised regarding Norton’s possible involvement in the 2003 accident. She also agreed John Doe remained involved

in the partial Judgment so as not to preclude her right to pursue recovery from her SEF 44 insurer. She did not admit however that SEF 44 recovery was the only reason John Doe was left in the action. [ 28 ] Indeed, in her evidence given April 10, 2012 Pederson testified that notwithstanding her Affidavit sworn January 25, 2007 she still had suspicions about Norton’s involvement “...but suspicions are not the same as knowing”.

She testified that “as far as could be proved” the driver of the Danyluk vehicle was unknown or unascertainable at the time she swore the January 25, 2007 affidavit. [ 29 ] Much was made in submissions before me of the possibility Norton and/or Danyluk were lying or had committed a fraud upon Court. There is certainly no such evidence before the court. The time may come for a court to assess the credibility of all the evidence going to the identity of the driver, and that driver’s relationship to the owner of the vehicle in question.

A court may be asked to make credibility findings that may raise questions of fraud, and questions of whether fraud vitiates an existing judgment in the circumstances. None of that is before me in this application. Issues [ 30 ] The Plaintiff/applicant Pederson frames the issues before me as follows: (

a) Is Pederson’s cause of action barred by merger or estoppel when she took a partial Judgment consented to by the Administrator, which Judgment expressly states she is at liberty to continue her claim against the defendants John Doe and Danyluk? (

b) Is Pederson entitled to a declaration the partial Judgment does not extinguish her rights to continue her claim against Norton, John Doe and Danyluk, or against the Economical, by way of the doctrines of merger, res judicata or other form or estoppel? (

c) Was the Order substituting Norton and John Doe, for John Doe, prejudicial to Norton such that he has a defence of estoppel or prejudice not compensable in costs? (

d) If in the alternative there was a slip in the wording of the partial Judgment, Order or Statutory Declaration of the Plaintiff, is Pederson allowed the amendments necessary to continue her claims against the defendants? (

e) Is Pederson entitled to apply for a trial of the issue whether Norton was the operator and/or owner of the motor vehicle involved in the collision of February 17, 2003, such trial of issue arising from s. 9(2) of the Motor Vehicle Accident Claims Act ? Positions of the parties [ 31 ] Pederson argues the partial Judgment on its face allows her to continue to pursue damages against all named parties on all causes of action.

While Danyluk did not consent to the partial Judgment, nor did Danyluk oppose her ongoing involvement, at least until this application. [ 32 ] As to Norton, Pederson says the Administrator consented to John Doe’s continuing liability. That consent bound Norton and John Doe from the time they were brought into the action on December 17, 2007. Not having appealed that order, or defended on the basis of res judicata or merger, Norton cannot now defeat Pederson’s claims on those bases. All concerned knew it was Pederson’s intention to continue to pursue the identity of the driver.

All concerned knew John Doe was left in the action for that reason. [ 33 ] Danyluk argues both Pederson and the Administrator concluded the driver in question was unknown and unascertainable. On that basis Pederson elected to pursue a partial Judgment. That election was voluntary. It was also informed, made knowing the partial Judgment would merge her cause of action in vicarious liability against Danyluk, leaving only other causes of action not connected to the actions of the vehicle’s driver.

In any event, Danyluk did not consent to the partial Judgment; her silence or failure to object until this application cannot be held against her. Danyluk argues Zukowski v. Royal Insurance Company of Canada 2000 ABCA 165 is a full answer to Pederson’s claims against her in vicarious liability.

[ 34 ] Danyluk argues in the alternative that res judicata applies. The partial Judgment determined the identity of the driver was unknown and unascertainable. This court should not exercise its discretion to re-open that question. In any event, John Doe as the driver was left in the partial Judgment only for the benefit of the Administrator and the SEF 44 insurer. The partial Judgment cannot be read to keep John Doe in the action for further judgment against him, and against Danyluk vicariously.

Finally, while the Administrator via s. 9 of the Act can revisit the identity of the driver notwithstanding a prior Judgment, that option is not available to Pederson under statute or at common law. [ 35 ] Norton argues he was added to the action as an “alternate” driver, not the same driver named as John Doe in the partial Judgment. He says now to seek a second judgment against an alternate driver is an abuse of process. It would result in inconsistent judgments. Pederson must first have the partial Judgment set aside. This, Norton argues, she cannot do.

Norton also points to Pederson’s delays in bringing the application, and her arguably inconsistent affidavit evidence in support of it. [ 36 ] The SEF 44 insurer, the Economical, argues its liability to Pederson follows the outcome of this application but need not be decided by it. That said, the Economical joins Pederson in arguing the partial Judgment keeps Pederson’s action alive for all causes of action against John Doe as the driver. In that Norton has now been brought in without appeal or defence based on res judicata and the like, the tort action should proceed against him unconditionally.

Zukowski v Royal Insurance Co. of Canada [ 37 ] All agree the application of Zukowski v Royal Insurance Co. of Canad is central to this application. [ 38 ] Before Zukowski there was Dahl v. Alberta (Administrator, Motor Vehicle Accident Claims Act) 1997 ABCA 207 . [ 39 ] Dahl was a case involving an unknown driver. The Administrator became involved and was prepared to consent to judgment.

To do so however would have extinguished Dahl’s claims against the unknown driver for any further damages, and by extension would have extinguished any further claims Dahl may have had against her own insurer for SEF 44 benefits. [ 40 ] Dahl was reconsidered in Zukowski . Zukowski was a case involving a known but uninsured driver. Again the Administrator became involved and was prepared to consent to judgment against the uninsured driver. Unlike Dahl , the form of consent judgment provided that it was without prejudice to the right of the plaintiff to pursue (

a) any claim which the Plaintiff may have against the Defendant ... with respect to the said motor vehicle collision for general, special damages and judgment interest beyond the said maximum amount, exclusive of costs, of $100,000 that may be paid out of the Motor Vehicle Accident Claims Fund ...and (

b) any claim which the Plaintiff may have by reason of any Under-insured Motorist Endorsement attached to and forming part of any policy of insurance which the Plaintiff may have had at the time of the said motor vehicle collision. [ 41 ] Zukowski’s SEF 44 insurer argued that pursuant to Dahl the consent judgment precluded any recovery against it by reason of the doctrines of merger and res judicata .

It argued Zukowski was no longer legally entitled to pursue further damages from the known defendant and therefore had no claim under the SEF 44 policy. [ 42 ] While successful in the first instance, the SEF 44 insurer’s position was rejected on appeal. The Court of Appeal reconsidered Dahl in the following terms: Is the Plaintiff’s cause of action totally barred when he or she takes a Judgment consented to by the Administrator of the Motor Vehicle Accident Claims Act , which Judgment expressly states that the Judgment is without prejudice to pursuing the rest of the Plaintiff’s claim?

[ 43 ] The question was answered in the negative. The court stated at para. 26: [26] It follows from our conclusions in the case at bar that the doctrine of merger or former recovery was improperly applied in Dahl v. Administrator . Where the judgment is unqualified and unconditional, application of the principle is appropriate (for example, Cahoon v. Franks and Malcolm v. Carr & Chapton ). It then serves the policy reasons cited as justifying its existence, finality and protection against successive claims for the same conduct.

However, where the defendant agrees to waive the doctrine and the agreement is clearly stated in a consent judgment reserving the right of the plaintiff to make a further claim against the defendant, and there is no prejudice to any third party, there is no reason in principle or policy why such a judgment should bar the further claims contemplated by the parties. In our view, the conditional judgment proposed by the parties in Dahl v.

Administrator , had it been granted, would not have precluded Dahl from pursuing her claim for additional damages. [ 44 ] It is worth noting there is little if anything to distinguish Dahl and Zukowski on the basis that the former dealt with an unknown driver whereas the latter dealt with a known but uninsured driver.

In Zukowski the court was careful to note “[the uninsured driver] has, through the Administrator, waived any right he may otherwise have had to reply on the doctrine of merger to bar further claims.” (at para. 22) The Administrator has a similar right to bind an unknown driver to a consent judgment, and to turn that consent judgment into a judgment against the tort-feasor “if and when identification occurs”: Dahl , at para. 7 . [ 45 ] The court in Zukowski found it was the obvious intent of the parties, evidenced by the form of consent Judgment, to enable the Administrator to pay its limits “...at the same time preserving Zukowski’s claims against the defendant Johnston and against Royal for any damages in excess of $100,000.” (at para. 5) [ 46 ] This observation undermines any argument that Zukowski was aimed only at preserving plaintiffs’ rights against SEF 44 insurers or, in the case of an unknown driver, aimed only at preserving the Administrator’s right under s. 9 of the Act to pursue a subsequently-identified driver.

The argument is that these aims aside, Zukowski did not intend to keep alive all causes of action against known or unknown drivers, or for that matter against known owners who might face vicarious liability. No authority was cited for this proposition. On its face, I read no such limitation into the decision in Zukowski . [ 47 ] What Zukowski establishes beyond question are the following prerequisites to avoid operation of the doctrine of merger: (

i) the only parties with an interest in the cause of action have agreed that the judgment will not have that effect, thereby waiving operation of the doctrine as between them; (ii) the right of the plaintiff to pursue further recovery against the same defendant or defendants is clearly preserved in the judgment; (iii) the rights of third parties are not directly affected, and; (iv) preservation of the right to pursue further claims is not an inappropriate or pointless fragmentation of the cause of action. (at para. 10) [ 48 ] Having dealt squarely with Zukowski , I propose to deal with the balance of legal issues as they arise in my analysis and findings, which follow.

Danyluk’s position [ 49 ] I will deal first with the position of the defendant Danyluk.

[ 50 ] Danyluk raises the “one percent rule” and s. 11(

f) of the Act which states: 11 When application is made for payment out of the General Revenue Fund no payment shall be made (

f) in respect of any amount that the applicant is legally entitled to receive from any other source. [ 51 ] No one disputes the operation of the one per cent rule. It would have been in the mind of the Administrator as it decided whether or not to consent to the partial Judgment. On the facts as then known, Pederson was legally entitled to maintain a cause of action in relation to ownership, use or operation of the motor vehicle in question only against John Doe.

The one per cent rule adds nothing else to what I have to decide. [ 52 ] More to the heart of her position, Danyluk as a party with an interest in the cause of action relies on the absence of her consent or agreement to the partial Judgment as required by Zukowksi . [ 53 ] There is no doubt she did not consent or agree. There is also no doubt however that she was on notice of Pederson’s application for partial Judgment. She was present through counsel at the application and, so far as is known, took no position. This may have been on account of her

interpretation of the partial Judgment, that it extinguished her vicarious liability and left her exposed only to what all agree is a weak cause of action around handling of the keys of the vehicle in question. As noted, that

interpretation is not supported by Zukowski . It is not an

interpretation I would arrive at here. Pederson’s partial Judgment clearly keeps alive all causes of action against John Doe and, as will be noted in what follows, against Norton once he is substituted into the action. [ 54 ] I had asked counsel for further submissions regarding the impact of Danyluk’s failure to appeal the partial Judgment.

Having reviewed those submissions, much argument but little authority was provided that persuades me Danyluk’s failure to appeal - any more than her failure to raise objections based on merger - precludes her reliance on Zukowski . [ 55 ] There is some suggestive wording in Malcolm v. Carr 1997 ABCA 202 . Pederson did not ask me particularly to distinguish the outcome in Malcolm and if only for that reason I will hesitate to go where I am not led. [ 56 ] Danyluk relies on Malcolm for the proposition she cannot be faulted for remaining silent in the face of Pederson’s partial Judgment application.

The plaintiff in Malcolm faced similar defendant arguments based on the doctrine of merger. The plaintiff there sought a finding of “cross estoppel” excluding the operation of merger on the basis the defendant knew full well the plaintiff had further claims she intended to pursue for injury damages. On the facts in Malcolm the court was not prepared to make the finding sought: ...we cannot see that the [defendants’] silence could reasonably be construed as a representation, a waiver, or acquiescence.

Nor was there a duty on the defendants to speak. (at para. 6) Each case must turn on its own facts, and in another case more facts or more words stated might be enough to tip the balance. It might also be different if Queen’s Bench had any latitude in whether or not to give or withhold this remedy of merger. But no authority was advanced to suggest that discretion or broad notions of justice enter into the matter. (at para. 7, emphasis added) [ 57 ] Malcolm illustrates that cases on merger can be harsh and narrowly-decided. Zukowski must be read in that context. Danyluk’s consent was clearly required.

It was not given. Danyluk is therefore entitled to resist Pederson’s claims on the basis of vicarious liability. [ 58 ] Danyluk raised an alternate argument based on res judicata . Norton joins in Danyluk’s position. Hauck v. Dominion of Canada General Insurance Co. 2003 ABQB 901 is cited as authority for this court’s consideration of issue estoppel in a partial judgment context. The following tests must be applied: [48] A two step analysis is to be applied in issue estoppel. The first step contains three elements. They are:

1. That the same question has been decided; 2. That the judicial decision which is said to create the estoppel is final; and 3. That the parties to the judicial decision or their privies were the same parties to the proceedings in which the estoppel is raised, or their privies. [49] The second step is the exercise of discretion to ensure that the rules governing issue estoppel are not mechanically applied. (Footnotes omitted) [ 59 ] As to the first part of the test, did the partial Judgment decide the issue of the driver’s identity on a final basis? There are arguments for and against this proposition.

I find persuasive the Economical’s argument, through counsel, that: Through s. 7 of the Act the [partial] Judgment is seen to decide that as of that date based on reasonable efforts, the identity of the driver could not be ascertained. However, it specifically allows the continuation of the Claim against “John Doe” and John Doe can only be the driver of the car. The [partial] Judgment does not say that in continuing the Claim against John Doe the Court can never again consider the issue of the real identity of the driver if steps are taken and proof is adduced on that front ... This is not a case in which Mr.

Norton has already faced a trial or decision as to his responsibility for the collision and the Plaintiff’s damages. [ 60 ] If on the other hand it can be maintained the partial Judgment did decide the question of the driver on a final basis, how should I exercise my discretion under the second part of the test? LoVecchio J. in Hauck saw fit to exercise his discretion against a finding of res judicata based on issue estoppel: [63] There is no doubt that this Court is entitled to refuse to apply estoppel as a matter of discretion.

However, such discretion should be exercised only in very limited circumstances and it is an error of principle not to address the factors for and against the exercise of discretion[11]. [64] All but one of the factors articulated by the Court in the Danyluk decision deal with previous adjudication by an administrative body.

Only the final factor that a court should consider in exercising its discretion is relevant to this proceeding and Justice Binnie describes it in para. 80: As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether the application of issue estoppel in the particular case would work an injustice. [65] Even if I had found that Mr.

Hauck was prima facie estopped by the application of the doctrine of res judicata on the issue of insurance coverage for the Trailer, I would have exercised my discretion to find that the application of issue estoppel in this particular case would work an injustice for the following reasons: 1. The issue of whether the accident arose out of the ownership, use and operation is a difficult question of law, and was not specifically before the court in the negligence action. 2. Mr.

Hauck clearly understood that insurance coverage for him under the Trailer policy was an issue and to protect himself filed a Statement of Claim against Dominion as soon as he was served with the Boons' estates' Statement of Claim. There was no intent to commit an abuse of process by litigation. Quite to the contrary, it simply ensured that the issue, which was only between him and his insurer, was before the Court for adjudication. [ 61 ] Applied to the case before me, I first note that while this court’s discretion to avoid res judicata should be exercised only in

“very limited circumstances”, the test based on injustice is distinctly different from the test for the doctrine of merger, discussed above. [ 62 ] I find the application of issue estoppel here would work an injustice, for the following reasons: (

a) Pederson’s was a “partial” Judgment and by its terms contemplated that all causes of action would be kept alive for her benefit; (

b) no one argued seriously that her recovery in the partial Judgment represented a final determination of an appropriate quantum of damages, or that all else being equal Pederson had legitimate further claims to damages; (

c) the form of partial Judgment was consistent with Pederson’s expressed intent that while all reasonable efforts had been made to identify the driver, further efforts would continue in that regard; (

d) of course those efforts did continue, most notably through Pederson’s motion in the fall, 2007 resulting in the order of December 17, 2007 substituting “Robert Norton and John Doe” for John Doe. While Norton opposed the motion, he did not oppose on the basis of res judicata or estoppel issues. Nor did he appeal the order, nor defend again based on res judicata or estoppel. What is in place, then, is a valid claim against a named alleged driver, alongside a partial Judgment which, by definition, allows the plaintiff to pursue that defendant.

Section 1(

g) provides: s. 1(g) “partial judgment” means a judgment (i) ... (ii) that permits the plaintiff to continue the action against (

A) the defendant against whom the partial judgment is obtained ... to the extent that the plaintiff has claims against [him] for an amount in excess of the amount awarded in the partial judgment. (

e) evidence did ultimately emerge, in the form of Goeseel’s affidavit, relevant to whether Norton was the driver; (

f) the Administrator, pursuant to s. 9 of the Act, has the statutory authority to “clear the air” as Pederson’s counsel expresses it, to pursue the identity of the driver notwithstanding the partial Judgment which again arguably decides that very issue on a final basis. That statutory right to revisit the issue does not extend to Pederson for any claims above and beyond the Administrator’s $200,000.

It is conceivable that inconsistent judgments could result: the Administrator’s against Robert Norton – if and when the Administrator establishes Norton was the driver – and Pederson’s original partial Judgment against an unknown driver. That potential and anomalous outcome is a factor going to my exercise of discretion not to see issue estoppel work an injustice in the circumstances of this case; (

g) any party kept in the action by my decision may pursue costs against the plaintiff should liability be determined in their favour. [ 63 ] For these reasons I conclude the issue of the identity of the driver of the vehicle in question is not res judicata and that the plaintiff is not estopped for that reason from pursuing judgment against Danyluk or, similarly, against Norton. Norton’s position [ 64 ] I will deal next with the position of the defendant Norton.

[65] Norton was of course not yet a named party in the action as at the partial Judgment of February 1, 2007. At that time, theAdministrator had the statutory authority to consent on behalf of the named John Doe in the action. Norton pointed me to no authorityrestricting the Administrator’s authority to bind John Doe, later to be substituted for Norton himself. [66] The original claim named John Doe as the operator of a motor vehicle which then violently struck the plaintiff’s vehicle. Indue course Pederson moved to name Norton in place of John Doe.

As noted, the amendment ordered December 7, 2007 replaced JohnDoe for “John Doe, or Robert Norton”. [67] As noted, Norton does not appear seriously to dispute the Administrator’s authority to consent to judgment on his behalf. Rather, Norton argues the Administrator’s consent relates to John Doe, and not to himself.

Although it could be clearer, Norton arguesthe December 7, 2007 amendment adds Norton as an “alternate” driver rather than substitutes him for the originally-named John Doe inthe partial Judgment. [68] I have little difficulty concluding the December 7, 2007 amendment was meant to and did substitute Robert Norton for theoriginally-named John Doe.

I accept that a John Doe was left in the action out of an abundance of caution, in the event Norton defendssuccessfully on the basis he was not the driver in question. [69] This conclusion is consistent with the evidence and positions taken by the parties. [70] For example, even before the amendment in question the SEF 44 insurer had defended on the basis that Norton was apotential operator of the vehicle in question. [71] What’s more, the amendment was supported by Pederson’s evidence given in numerous affidavits and examinations onthem.

I am mindful of the fact Pederson swore at one point in time that to the best of her knowledge the identify the driver of the vehiclein question was unknown, yet swore elsewhere she believed Norton “may” have been the driver. I do not see a material inconsistency inher evidence. She stated transparently that whatever she believed “may” have been the case, she “[could] not be sure” Norton was notthe driver. [72] In all, the evidence and pleadings leaves little doubt Norton knew he was added as the driver of the motor vehicle in question.I find Norton was substituted into the action for the original John Doe.

The additional John Doe was named in the 2007 amendment outof an abundance of caution. [73] With regard to the balance of the Zukowski factors, the partial Judgment clearly preserves the plaintiff’s right to pursuefurther recovery, no direct third party rights are adversely affected, and the preservation of the plaintiff’s claim is not an inappropriate orpointless fragmentation of the cause action against the driver. [74] I should note that Danyluk raised an argument on Norton’s behalf based on the decision in Badger v. John 2003 ABQB 231.

I find however that Badger is distinguishable: it was not a case, as here, in which the Administrator had consented to judgment againstJohn Doe, with John Doe then being replaced on amendment by a known individual. [75] Norton argues further the plaintiff seeks inconsistent verdicts which, on their face, are an abuse of process. Numerous casesare referred to: Ed Flak Construction Ltd. v. Crow-Crest Industries Ltd., 1982 ABCA 114; Altech Aluminum Ltd. v. Pendulum,Construction Ltd., (BSSC); Edwards v.

Ferris, 2001 ABQB 1125. [76] Having reviewed these authorities I am not convinced I am yet faced here with inconsistent verdicts. [77] To be sure, there is the potential of inconsistent verdicts. And doubtless that is to be avoided. But none of the authoritiesreferred to say a party cannot seek an inconsistent verdict. Rather, they say clearly a party cannot have or maintain an inconsistentverdict.

[78] Norton, and for that matter Danyluk, seeks comfort in Ed Flak. Nothing however in Ed Flak stands in Pederson’s way: in EdFlak the plaintiff had two judgments and was allowed to prefer one over the other. Slatter J. (as he then was) commented about Ed Flakin Edwards v. Ferris 2001 ABQB 1125: The effect of this decision is that the Plaintiff cannot hold a judgment against both alternative debtors, and must make an electionbetween the two of them.

However, that election need not be made until judgment is available against both of them. (at para. 22) [79] And for what it’s worth, Ed Flak and each other authority referred to by the defendants on this point involved defaultjudgments as compared to partial or consent judgments which are unique to motor vehicle litigation involving the Administrator. [80] Norton also relies on Ed Flak and Edwards for the proposition that judgments fully satisfied should not be revisited.

Theanswer here is that Pederson satisfied only a partial Judgment; all concerned knew or ought to have known her satisfaction was likewiseonly partial. In any event, the partial Judgment here was satisfied by the Administrator. In Edwards the judgment was satisfied by thevery party against whom it was proposed to open up the default. In those circumstances Slatter J. found significant prejudice. There isno such prejudice here. [81] Norton relies on Bank of Nova Scotia v. Torringa (1981), (AB KB), 30 A.R. 606 (M.), mentioned inEdwards.

Assuming Torringa is relevant – being another default judgment case – I find good reason exists for the passage of timebetween the partial Judgment and the application before me. It does not appear that until this application any of the defendants objectedto the partial Judgment on the bases argued before me.

All parties knew or ought to have known the plaintiff and/or the Administratorwould apply in the within action to set aside – or perhaps more appropriately to substitute – the partial Judgment against John Doe for ajudgment against Danyluk and Norton. [82] Finally, Norton relies on Rule 9.15 and its application in Palin v. Duxbury 2010 ABQB 833. I find this rule does not apply tothe partial Judgment before the court. Rule 9.15(1)(

a) and (

b) are aimed at specific prerequisites not present here; Rule 9.15(3) is aimedonly at default judgments. Conclusion [83] To address the issues as framed by the plaintiff/applicant: (

a) Pederson’s cause of action against Norton is not barred by merger, but is as against Danyluk regarding the cause of action invicarious liability; (

b) it follows that Pederson is entitled to a declaration the partial Judgment does not extinguish her rights to continue her claimagainst Norton and John Doe, either by way of the doctrines of merger, or res judicata/issue estoppel; while her rights against Danylukfor vicarious liability would survive on the basis of no res judicata/issue estoppel, as noted they are barred by reason of merger; (

c) The question whether the order substituting Norton and John Doe, for John Doe was prejudicial to Norton such that he has adefence of estoppel or prejudice not compensable in costs, was not seriously argued before me. The order is what it is. It was notappealed. I have made my findings with regard to Norton’s ongoing involvement; (

d) It is unnecessary to consider whether there was a slip in the wording of the partial Judgment, order or statutory declaration of thePlaintiff; (

e) It is also unnecessary to consider whether Pederson, as distinct from the Administrator, is entitled to apply for a trial of the issue

(

e) It is also unnecessary to consider whether Pederson, as distinct from the Administrator, is entitled to apply for a trial of the issue arising from s. 9(2) of the Motor Vehicle Accident Claims Act . [ 84 ] If they are unable to agree, the parties of course may speak to costs. Heard on the 18 th day of April, 2012; Further written submissions received on the 25 th day of April, 2012. Dated at the City of Edmonton, Alberta this 9 th day of May, 2012. Peter Michalyshyn J.C.Q.B.A. Appearances: Terrence M. Kulasa James H. Brown & Associates for the Plaintiff Jeffrey R.

Sermet Bryan & Company LLP for the Defendant Raona May Danyluk Brendan A. Carr Carr Defir for the Defendant Robert Norton Sandra J. Weber McLennan Ross LLP for the Defendant by Order, Economical Mutual Insurance Bryon D. Baltimore McCuaig Desrochers LLP For the Administrator