Van Swieten v. McIntyre, 2010 BCSC 1976

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Van Swieten v. McIntyre, 2010 BCSC 1976 Date: 20101119 Docket: 10-0052 Registry: Victoria Between: Yvonne Carol Van Swieten Plaintiff And: Daryl McIntyre and Lorna McIntyre Defendants And: Nicole Van Swieten Third Party Before: The Honourable Madam Justice Dorgan Oral Ruling Re Application to Strike Amended Third Party Notice (In Chambers) Counsel for the Plaintiff: F. K. Walton, Q.C. Counsel for the Defendants: A. Breen Counsel for the Third Party: L. Pringle Place and Date of Trial/Hearing: Victoria, B.C.

November 19, 2010 Place and Date of Ruling: Victoria, B.C. November 19, 2010 [ 1 ] THE COURT: This is the application of the third party to strike the claim against her pursuant to Rule 9-5(1)(a), (b), (c), and (d). In the action, the plaintiff claims damages arising from injuries she sustained September 30, 2009, as a result of the alleged negligence of the defendants. [ 2 ] According to the pleadings, the plaintiff owns two dogs. On September 30, 2009, she and her 20-year-old dependant daughter, the third party, took the two dogs for a walk in their neighbourhood. Each of the plaintiff's dogs was on a leash.

The plaintiff alleges that during the walk, the defendants' dog, unleashed and at large due to the negligence of the defendants, came across the road. What then ensued was a fight between the defendants' dog and one or both of the plaintiff's dogs. During the melee, the plaintiff alleges that she fell and sustained injuries. [ 3 ] The defendants filed a third-party notice.

The defendants' amended third party notice alleges that the third party was aware of the plaintiff's dogs' personalities and in particular, that she was aware that the plaintiff's dogs had a propensity to become aggressive in the presence of other animals, and that the third party knew that in such circumstances of aggression the plaintiff was not strong enough to control her dogs. [ 4 ] The defendants plead that the third party owed each of the plaintiff and the defendants a duty of care.

In respect of the plaintiff, para. 9 of the amended third party notice reads: The Third Party therefore owed the Plaintiff a duty of care to ensure that the Plaintiff would be reasonably safe when walking her dogs and to warn the Plaintiff that the dogs over which the Plaintiff had control had a propensity to become aggressive when they came in proximity to other animals. [ 5 ] In respect of the duty which the defendants plead the third party owed them, para. 10 reads: The Third Party also owed the Defendant, Daryl McIntyre, a duty of care to warn him about the propensity of the Plaintiff's dogs to become aggressive when they came in proximity to other animals, including the Claiming Parties' dog. [ 6 ] The defendants argue that the pleadings give rise to the possibility that the third party's actions played a pivotal role in the cause of or contribution to the accident and the alleged consequent injuries suffered by the plaintiff.

The defendants argue further that the litigation is in its early stages, that no trial date has been set, that all particulars have yet to be fleshed out and that the defendants

have not yet examined the third party for discovery. The defendants submit that the application to strike is therefore premature. [ 7 ] Furthermore, the defendants argue that they are entitled to pursue and investigate further in order to determine relevant facts which may in turn lead to further amendments to the pleadings, and that it therefore cannot be argued that the notice as it exists is unnecessary, scandalous, frivolous, or vexatious. [ 8 ] In para. 11 of the amended third party notice the particulars pled are: The Third Party breached the duty of care which she owed to the Plaintiff and/or to the Claiming Parties, particulars of said breaches are as follows: (

a) Allowing the Plaintiff to assume control of the lead of an animal that she knew or should have known the Plaintiff had insufficient strength [to] hold in the event the dog attempted to pull away from the handler; (

b) Failing to warn the Defendant, Daryl McIntyre, and/or the Plaintiff that the dog over which the Plaintiff had control had a propensity to become aggressive when it came in proximity to other animals in circumstances where she was or should have been aware that the animals would come in contact with each other; (

c) Failing to render assistance to the Plaintiff by helping to hold the dog lead being held by the Plaintiff or assuming complete control over the dog lead held by the Plaintiff, when it was apparent or should have been apparent to the Third Party that the animals were too powerful for the Plaintiff and in pulling away from the Plaintiff, might cause her injury; (

d) Failing to warn the Plaintiff that the Plaintiff had become entangled in the lead of the animal she was holding in circumstances where it was or should have been apparent to the Third Party that the Plaintiff might trip over the lead and thereby suffer injury; and (

e) Such further particulars of breaches of the duty of care as become known to the Defendants and of which counsel may advise. [ 9 ] Referring in particular to subpara. (e), Mr. Breen argues it is premature to consider striking the cause of action against the third party. [ 10 ] The third party argues, and the plaintiff joins this argument, that the particulars of the duty of care as pled by the defendants disclose no cause of action. Ms. Pringle cites Childs v. Desormeaux , 2006 SCC 18 and Morrison v. Hooper , 2010 ONSC 4394 in support.

In her outline of argument, paras. 34 through to 37, the Childs case is accurately précised. [ 11 ] The pleadings allege the third party owed a duty of care, including a duty to warn, to either or each of the plaintiff and the defendants. [ 12 ] The pleadings disclose that the 49-year-old plaintiff owned the dogs. The pleadings do not allege that the dogs were under the control of the third party at any time or that the plaintiff was under the control of the third party or that the third party was somehow responsible for the plaintiff’s actions.

The defendants’ pleadings do not allege a defined relationship between the plaintiff and the third party or between the third party and the defendants, which gives rise to a prima facie duty of care. [ 13 ] The test on an application to strike is whether or not the defendants' pleadings disclose a cause of action. The authority for that is Hunt v. Carey Inc. , 1990 CanLII 90 (SCC) , [1990] 2 S.C.R. 959. The authorities direct the court to be cautious on such an application, and to be reluctant to strike. The court will strike only if it is plain and obvious that the claim cannot proceed.

In other words, do the pleadings of the defendants disclose a cause of action against the third party and is it plain and obvious that, as is argued by the third party, the pleadings do not disclose such a cause of action. [ 14 ] There is no question the defendants' claim against the third party is grounded in an alleged duty of care which includes a duty to warn owed by the third party to each or one of the plaintiff and the defendants. [ 15 ] Assuming that the particulars pled and the facts as pled can be proved, the circumstances remain that the third party does not own the dogs, does not control the dogs, is not in a position of power or control over either the plaintiff or the defendants, and is not in a defined relationship giving rise to a prima facie duty of care to either the plaintiff or the defendants. [ 16 ] In these circumstances, there is no duty which requires the third party to take positive action to aid another who is in peril.

Here the third party had no duty to render assistance to the plaintiff in walking the dogs, assuming that the plaintiff could not control them. The third party is under no obligation to assume control of the plaintiff's dogs in these circumstances. There is no duty in law which requires the third party to assist another who faces risk of harm, when the third party had no

part in creating it. [ 17 ] Assuming the facts pled could be proved, I am satisfied there is no legal basis on which the third party owed a duty of care to either the plaintiff or the defendants. I find the pleadings disclose no cause of action against the third party. [ 18 ] Finally, I refer to Rule 9-5(1)(c).

While the defendants ought to be allowed, through this third party proceeding, to investigate further, giving rise to the potential of a further amendment which then might shore up, in the defendants’ argument, a claim for negligence, the investigation here which ought to take place between the defendants and the named third party is an investigation which could be pursued through examination of a witness. The third party, the 20-year-old dependant daughter of the plaintiff, is a witness to the incident, apparently one of three.

If she remains a party, the plaintiff is placed in a difficult position; for example, how does she interview the third party or gain relevant information from her in order to proceed with the claim? [ 19 ] The action could be delayed. The fairness of the proceeding is not enhanced. While the defendants argue they should be able to use the discovery process to investigate further and to potentially obtain evidence from the third party which enhances their case, this is no reason to keep her in the action. The Rules allow the defendants to examine her as a witness.

[ 20 ] Accordingly, the third party notice is struck. [ 21 ] Do you want to argue costs? There is an argument in the written argument about special costs. Are you proceeding with that, Ms. Pringle? [ 22 ] MS.

PRINGLE: Yes, My Lady, we would proceed with, subject to Supreme Court Rule 9-5, which says that if it is found that the pleadings were -- did not disclose a reasonable cause of action or were vexatious, and so on and so forth, that costs and special costs can be awarded, and I would ask that those be awarded in this case. [SUBMISSIONS RE COSTS] [ 23 ] THE COURT: The third party seeks special costs on her application to strike. As the successful party, she is entitled to ordinary costs absent unusual circumstances. [ 24 ] I did not strike the claim because it was scandalous, frivolous or vexatious.

If I had, the third party would have a strong argument that the court ought to exercise its discretion and order special costs. I am of the view that ordinary costs pertain; that is what is appropriate. [ 25 ] The third party's financial circumstances do have some bearing on the exercise of discretion. In this regard, I order that the defendants pay the third party’s costs forthwith. Ordinary costs on Scale 3. “J. L. Dorgan, J.” The Honourable Madam Justice Dorgan