Bower v Evans, 2016 ABQB 717

Court of Queen’s Bench of Alberta Citation: Bower v Evans, 2016 ABQB 717 Date: 20161219 Docket: 1503 04672 Registry: Edmonton Between: Sheldon Bower Respondent/Plaintiff - and - Frances Evans and Ruth Evans Appellants/Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R. Paul Belzil _______________________________________________________ The Application [ 1 ] This is an appeal from a decision of a Master refusing an application by the Appellants/Defendants for

Summary Judgment.

Factual Background [ 2 ] On December 3, 2008, Sheldon Bower was employed by 479215 Alberta Ltd. (479215) which company was involved in the repair of oil tanks. [ 3 ] While working on a tank with a co-worker, the tank exploded causing the death of the co-worker and injury to Sheldon Bower. [ 4 ] At all material times, the Appellants/Defendants Frances Evans and Ruth Evans, were Directors of 479215. [ 5 ] On February 2, 2010 Sheldon Bower filed a Statement of Claim against them alleging that the accident was caused by their negligence. [ 6 ] Paragraphs 5 and 6 of the Statement of Claim read as follows: 5.

The Accident was caused by the negligence of the Defendants, jointly and severally, who, while acting as directors of the 479215 owed a personal duty of care to Mr. Bower, some particulars of the negligence of the Defendants include, but are not limited to the following:

a) Knew or ought to have known of serious and avoidable or reducible danger to Mr. Bower in relation to 479215’s operations;

b) Had the authority to envision, establish and enforce corporate policies which could reasonably avoid or reduce such serious danger; and

c) Could have reasonably envisioned, established and enforced the actions necessary to carry out such policies and procedures and to reasonably avoid or reduce such serious danger. 6. The Defendants were jointly and severally negligent and breached their duties to envision, establish and enforce proper safety policies for 479215 and their employees, particulars of which breaches include, but are not limited to the following:

a) Inspection and Maintenance Policies i. Failure to take reasonable measures to ensure that 479215’s tanks were properly inspected and maintained; ii. Failure to take proper or reasonable steps to ensure that equipment used in the maintenance of the Tank was safe and in proper working order; iii. Failure to steam clean the Tank for the 4 to 8 hours required by TDG de-classification procedures; iv. Failure to provide air quality monitoring prior to allowing or instructing workers to enter the Tank; v. Provide trouble lights that were not approved for use in hazardous locations;

b) Safety Procedures and Training Policies i. Failure to ensure that workers were trained in the proper operation of the equipment used in the maintenance of the Tank; ii. Failure to ensure that 479215 had adequate safety procedures, and proper procedures for training workers in such safety procedures; iii. Failure to ensure that 479215 had appropriate safety and communication procedures for dealing with accidents on their work sites; iv. Failure to ensure that 479215 implemented the safety measures for equipment required by s. 2(1) of the Occupational Health and Safety Act ; v. Failure to have a confined space entry code of practice in place.

c) Failure to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances, and generally failing to meet the standard and fulfill the duties of a director pursuant to sections 101(1) and 122(1) of the Business Corporations Act , R.S.A. 2000, c. B-9 , and other provisions of the Act as may be particularized at the trial of this matter; and

d) such other particulars as are known to the Defendants and which may be proven during the trial of this action. [ 7 ] 479215 was not named as a Defendant, as at all material times it was an employer as defined by the provisions of the Workers Compensation Act , RSA 2000, c. W-15 , ( Act ) as amended. [ 8 ] At all material times, the Appellants/Defendants were not workers under the Act . [ 9 ] On May 15, 2015 the Appellants/Defendants filed an application for

Summary Judgment pursuant to R 7.3 of the Alberta Rules of Court . [ 10 ] The application was dismissed in written reasons, cited 2016 ABQB 286 . The Test for

Summary Judgment Pursuant to Rule 7.3 and the Standard of Review on Appeal from a Decision of the Master [ 11 ] The parties agree that the test for

Summary Judgment was defined in Windsor v Canadian Pacific Railway , 2014 ABCA 108 at para 13 as follows: The modern test for

Summary Judgment is therefore to examine the record to see if a disposition that is fair and just to both parties can be made on the existing record. At para 16 it was observed that

Summary Judgment is often appropriate when the resolution of the dispute turns primarily on issues of law. [ 12 ] The parties also agree that the standard of review from a decision of a Master is correctness. Discussion

[13] In dismissing the application for

Summary Judgment, the Master relied heavily on the decision of the Alberta Court of Appealin Nielsen (Estate of) v Epton, 2006 ABCA 382. [14] In Epton the Court of Appeal stated the following at para 20: 20 It is settled law that a corporate director may have a personal duty of care and may be liable for acts that are in themselves tortious:Montreal Trust Co. of Canada v. ScotiaMcLeod Inc. (1995), (ON CA), 129 D.L.R. (4th) 711, 26 O.R. (3d) 481(C.A.); Blacklaws v. 470433 Alberta Ltd. (2000), 84 Alta. L.R. (3d) 270, 2000 ABCA 175. [15] The facts in Epton are critical.

In that case an employee was killed in the course of an attempt to lift a beam. It was found as afact by the trial judge that a corporate director, Epton, was directly involved in the attempt to lift the beam and found independenttortious liability on his part. [16] At para 21 the following passage appears: 21 The trial judge was careful to distinguish between acts, duties and standards attributable to Epton and those attributable to Fabtec.He found that Epton had a personal duty to oversee workplace safety and that he did nothing to design or implement acceptableworkplace safety standards.

Those findings, coupled with the findings that Epton was involved in the first lift attempt and knew thespreader beam did not properly fit the hoist hook and safety latch, amply support the conclusion that Epton's acts were tortious inthemselves. [17] Epton is not authority for the proposition that a director who fails to carry out the duties of a director, or is negligent in doingso, is automatically personally liable.

Rather, there must be something more, sufficient to establish independent tortious liability. [18] In this case, there is no evidence that the Defendant Directors had any involvement with the work being undertaken on thetank. In particular, there is no evidence that they were present when the tank was being worked on, no evidence that theRespondent/Plaintiff or the co-worker had any need or expectation that the Appellants/Defendants would give them any instructions asto how to do their work, as both were experienced.

In other words, they had no operational involvement. [19] This is markedly different from the situation in Epton and makes that decision distinguishable. [20] While I accept that the Appellants/Defendants may have been negligent in their corporate capacities, as noted, this is notsufficient to create independent tortious liability. [21] Finally, I agree with the argument of the Appellants/Defendants that on this evidentiary record there is no causal link betweentheir alleged negligence as Directors and the injury to the Respondent/Plaintiff.

There is no evidence that the Defendant Directors wereacting in a personal capacity or that what they did or did not do in their personal capacities was a material cause of the injuries sustainedby the Respondent/Plaintiff. In the result, there is no genuine issue remaining that requires a trial. [22] Accordingly, the decision of the Master is set aside. [23] I find that on this evidentiary record it is fair and just to grant

Summary Judgment against the Respondent/Plaintiff . TheAppellants/Defendants are entitled to costs. Heard on the 6th day of December, 2016. Dated at the City of Edmonton, Alberta this 16th day of December, 2016. R. Paul Belzil J.C.Q.B.A. Appearances: Douglas N. Skovberg Skovberg Hinz for the Respondent/Plaintiff

Kunal K. Nand & Nanette Kufeldt Chomicki Baril Mah LLP for the Appellants/Defendants