Glenn M. Walsh Plaintiff And: Attorney General of Canada First Defendant And: Terri Wells Second Defendant AND: INTACT INSURANCE COMPANY/ INTACT COMPAGNIE D’ASSURANCE PROPOSED INTERVENOR, 2022 NLSC 108

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Walsh v. Canada (Attorney General) , 2022 NLSC 108 Date : June 29, 2022 Docket : 201901G4028 Between: Glenn M. Walsh Plaintiff And: Attorney General of Canada First Defendant And: Terri Wells Second Defendant AND: INTACT INSURANCE COMPANY/ INTACT COMPAGNIE D’ASSURANCE PROPOSED INTERVENOR Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 6, 2022

Summary:

The Intervenor’s Application to participate in the action was granted. The Defendants were given leave to amend their Defence. ThePlaintiff was given leave to amend his Claim to include a claim against the Intervenor. No costs were awarded. Appearances: David D. McKay, Q.C. Appearing on behalf of the Plaintiff Corinne Bedford Appearing on behalf of the Defendants Alexandria S.G. Tizzard Appearing on behalf of the Proposed Intervenor Authorities Cited: CASES CONSIDERED: Weir’s Construction Ltd. v. Warford, 2017 NLCA 1; Eastern Regional Integrated Health Authority v.

Assn. ofRegistered Nurses of Newfoundland and Labrador, 2014 NLCA 52; Burns v. Ferri (1992), (ON SC), 8 O.R. (3d) 11,32 A.C.W.S. (3d) 464 (Ct. J.) RULE CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] Terri Wells, an employee of the Department of Fisheries and Oceans, backed her employer’s Ford half-ton truck into the rearpassenger wheel well of Glenn Walsh’s vehicle. The accident occurred in a store parking lot. Ms.

Wells was operating her motor vehiclein the course of her employment. [2] The proposed Intervenor, unbeknownst to the Plaintiff, executed a full and final release in respect of property damage andpersonal injuries attributable to the accident. [3] The Plaintiff commenced an action. In the course of gathering documents the Defendants discovered the full and final release.The Defendants requested that the Plaintiff discontinue his action. The Plaintiff refused. [4] The Defendants brought an Application to have the Plaintiff’s claim dismissed on account of the release.

The Plaintiff objectedon the basis that the Defendants had not pleaded the existence of the release in its Statement of Defence.

[ 5 ] The Defendants applied to amend their pleadings. [ 6 ] Intact Insurance, who had executed the release, applied to be added as an Intervenor. issues [ 7 ] Should Intact Insurance be allowed intervenor party status in accordance with Rule 7.05? [ 8 ] Should the Defendants be allowed to amend their Statement of Defence? analysis Should Intact be allowed intervenor party status in accordance with Rule 7.05? [ 9 ] The granting of intervenor party status is governed by Rule 7.05 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D which states: 7.05

(1) Any person may, with leave of the court, intervene in a proceeding and become a party thereto if (

a) that person claims an interest in the subject matter of the proceeding, including any property seized or attached in the proceeding, whether as an incident to the relief claimed, enforcement of the order therein, or otherwise; (

b) that person's claim or defence and the proceeding have a question of law or fact in common; or (

c) that person has a right to intervene under a statute or rule.

(2) The application for leave to intervene shall be supported by an affidavit containing the grounds thereof and shall have attached thereto, when practical, a pleading setting forth the claim or defence for which intervention is sought.

(3) On the application, the Court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the parties to the proceeding and it may grant such order as it thinks just. [ 10 ] The Defendants cited to me Chief Justice Green’s decision (as he then was) in Weir’s Construction Ltd. v. Warford , 2017 NLCA 1 . However, that case deals with a Court of Appeal Rule that is not entirely applicable to the case at bar.

In Weir’s Construction Ltd. the Court was dealing with an application for intervention in a matter in which the proposed Intervenor had not been a party in the Court below. Furthermore, it seems to me that the Court of Appeal’s Rule with respect to intervention are more germane to the issue of the proposed Intervenor’s interest in the proceeding and whether or not s/he/it can contribute to the Court’s understanding of the issues before it.

As Green C.J.N.L. stated: The new rule 38, which applies only in the Court of Appeal, can now be interpreted and applied in a manner that is suitable solely to appellate proceedings. [ 11 ] It would be best, under the circumstances, to deal with the jurisprudence related to Rule 7.05 as it relates to the practice in this Court. [ 12 ] In Eastern Regional Integrated Health Authority v.

Assn. of Registered Nurses of Newfoundland and Labrador , 2014 NLCA 52 , Justice Hoegg stated at paragraph 4: The jurisprudence addressing Rule 7.05 has identified sufficiency of an Intended Intervenor’s interest, whether the Intended Intervenor will make a useful contribution to the proceedings, whether its participation will cause undue delay, and whether its participation will be burdensome, expensive or otherwise prejudicial to the parties as factors for consideration in determining Rule 7.05 applications. (See Warford v. Weir's Construction Ltd. , 2012 NLCA 37 , 323 Nfld. & P.E.I.R. 174 (N.L.

C.A.), Forsey v. Eastern Regional Health Authority , 2007 NLTD 101 , 267 Nfld. & P.E.I.R. 19 (N.L. T.D.) and Elton Estate v. Elton , 2009 NLCA 34 , 287 Nfld. & P.E.I.R. 46 (N.L. C.A.).) Whether public law issues are involved is also a factor for consideration ( Warford , paragraph 8). [ 13 ] The proposed Intervenor, in this case, has received a sum of money from the Defendants to reimburse it for the moneys they paid to the Plaintiff for the property damage that he suffered.

In consideration of the receipt of this money, the proposed Intervenor executed a full and final release in respect of any and all claims that the Plaintiff had against the Defendants. It appears that the proposed Intervenor may have executed the release without the Plaintiff’s knowledge or consent.

If so, and if the proposed Intervenor’s actions have materially prejudiced the Plaintiff, the Plaintiff may well have an action against the proposed Intervenor for negligence. [ 14 ] It may be, as well, that the proposed Intervenor executed the release by mistake – thinking it was a partial release in respect of property damage, oblivious to the fact that it was a full and final release in respect of all of the Plaintiff’s claims, including personal injuries. The legal effect of executing the release is a matter that is best determined at trial.

[15] In my view this is sufficient interest to allow the proposed intervention. If I did not allow it, there will undoubtedly be anotheraction to deal with the question of the Intervenor’s liability to the Plaintiff. No Court time will have been saved by creating a multiplicityof actions. [16] It seems to me that there are a number of issues that need to be dealt with, and having all of the parties in the same action willfacilitate their resolution. They include: a. Did the Plaintiff suffer any personal injury as a result of the accident? b. Was the release executed bona fide, or was it executed in error? c.

What is the proposed Intervenor’s liability to the Plaintiff if it had no right, actual or ostensible, to release the Defendants fromliability for personal injuries sustained by him? d. Are the Defendants liable to the Plaintiffs if the proposed Intervenor can establish that the release was executed in error and wasmeant to be in respect of property damage only? [17] The granting of the Application for Intervention will not unduly delay the matter. I cannot see any prejudice to any of theparties in allowing the intervention.

Should the Defendants be allowed to amend their Statement of Defence? [18] The Defendants are in possession of a release document that purports to settle all matters in difference between the parties. [19] While there may be substantial arguments on all sides as to the legal effect and impact of this document, it would not be just todisallow the Defendants from raising it as a potential defence. [20] The impact of allowing the Defendants to do so may well cause some delay, but the interests of justice require it. [21] I have decided that the proposed Intervenor should be allowed to intervene in accordance with Rule 7.05(2) as a full party.

Thiswill entail the preparation, service and filing of pleadings setting out the Intervenor’s positions with respect to both the Plaintiff’s claimand the Defendants’ defence. The Intervenor shall provide a list of documents in its possession, examine the parties opposite fordiscovery and be examined by them as required by counsel. [22] The Plaintiff has argued that the Court ought to rectify the release so that it does not foreclose the Plaintiff from seekingdamages for his personal injury. The Plaintiff cites, as authority, the decision in Burns v. Ferri (1992), (ON SC), 8O.R. (3d) 11, 32 A.C.W.S. (3d) 464 (Ct.

J.). [23] Rectification is an available remedy. However, in order for the Court to grant rectification the issue must properly be before theCourt. This would include the factual substrate necessary in order to make the determination as to whether or not rectification should beordered. At present that substrate is deficient. While the Court can make guesses about what might have happened, it ought not to do so.The Court should be placed in a position where it can make findings of fact based upon evidence. [24] Allowing the Defendants to make the requested amendment enjoins the issue concerning the release.

Having done so theparties are then at liberty to discover the appropriate persons in order to determine the nature, extent and intention that existed at the timeof the signing of the release. It is best to do this when all of the necessary parties, including the Intervenor, are before the Court. [25] The proposed amendment does not appear, to me, to be embarrassing in the sense that it is immaterial to the outcome of thecase or brings up matters that are irrelevant. conclusion [26] The Application of the proposed Intervenor is granted.

The Intervenor shall be a third party to the action and engage in allnecessary proceedings as outlined in paragraph [21] above. [27] The Plaintiff is given leave to amend his Claim to outline his claim against the Intervenor. [28] The Defendants shall be allowed to amend their Statement of Defence by referring to the release. [29] The Defendants, in amending their Statement of Defence, may make such claims as against the Intervenor as they feel areappropriate in the circumstances. [30] There shall be no order as to costs. _____________________________ Vikas Khaladkar Justice