Rutt v. Meade, 2022 NSSC 100

SUPREME COURT OF Nova Scotia Citation: Rutt v. Meade , 2022 NSSC 100 Date: 20220406 Docket: Ken No. 485511 Registry: Kentville Between: Dawn Kirkpatrick as litigation guardian for Emily Dawn Rutt Plaintiff v. Adrian Jay Meade and Synergy Agri Group Inc. Defendants v. Douglas Rutt, Krista Rutt, Dara Ramirez, and Valley United Soccer Club, a registered society Third Parties Judge: The Honourable Justice Gail L. Gatchalian Heard: January 6, 2022, in Kentville, Nova Scotia Counsel: Shawn Harmon, for Dara Ramirez and Valley United Soccer Club Robert G. Belliveau, Q.C. for Adrian Jay Meade and Synergy Agri Group Inc.

Lathia Stubbs for Emily Dawn Rutt, watching Enoch Wu for Douglas Rutt and Krista Rutt, watching By the Court: Introduction [ 1 ] This is a motion by the third parties, Dara Ramirez and Valley United Soccer Club, to strike the third party claim filed against them by the defendants, Adrian Jay Meade and his employer, Synergy Agri Inc. [ 2 ] The plaintiff, Emily Dawn Rutt, was injured when the car she was in collided with a truck driven by Mr. Meade. She was fifteen years old at the time. Her litigation guardian filed a claim on her behalf against Mr.

Meade and Synergy, claiming damages for injuries, including concussion symptoms. [ 3 ] Approximately three weeks after the accident, Ms. Rutt played in a national soccer tournament for her club, Valley United. Ms. Ramirez was her coach. [ 4 ] Mr. Meade and Synergy allege that Ms. Ramirez and Valley United were negligent in pressuring or allowing Ms. Rutt to play in the soccer tournament when she was still experiencing concussion symptoms from the accident. Mr. Meade and Synergy allege that Ms.

Rutt’s participation in the soccer tournament impeded her recovery and aggravated her concussion symptoms. [ 5 ] With respect to the concussion symptoms that Ms. Rutt continued to suffer after the soccer tournament, Mr. Meade and Synergy say that Ms. Ramirez and Valley United are “concurrent tortfeasors” who would have been liable, had they been sued, for the

“same damage” suffered by Ms. Rutt. [ 6 ] Mr. Meade and Synergy say that they therefore have a right to claim contribution from Ms. Ramirez and Valley United under s.3 (

c) of the Tortfeasors Act , R.S.N.S. 1989, c.471 for any damages that they might have to pay Ms. Rutt for the ongoing concussion symptoms. Mr. Meade and Synergy say that they are entitled to file a third party claim on that basis under Civil Procedure Rule 4.11(1) (

a) and s.5 of the Tortfeasors Act . [ 7 ] I may strike the third party claim if I am satisfied that it was taken in circumstances outside those permitted in the Rules or that maintaining the claim would cause an injustice: Civil Procedure Rules 35.07(1)(

c) and (e). [ 8 ] Ms. Ramirez and Valley United say that they are not concurrent tortfeasors who, if sued, would have been liable for the same damage suffered by Ms. Rutt as a result of the accident because (

a) the accident and the soccer tournament were two distinct events that happened at different times and (

b) Mr. Meade and Synergy are not at risk of being held responsible for any damage caused to Ms. Rutt as a result of playing in the soccer tournament. [ 9 ] In order to determine whether the third party claim was taken in circumstances outside those permitted in the Rules or whether maintaining the claim would cause an injustice, I will consider the following issues: (

a) The statutory requirement that Ms. Ramirez and Valley United must be liable for the “same damage” suffered by Ms. Rutt as a result of the accident in order for Mr. Meade and Synergy to file a third party claim for contribution against them. (

b) Whether Ms. Ramirez and Valley United can be concurrent tortfeasors who caused the same damage to Ms. Rutt even though the accident and the soccer tournament were distinct events that happened at different times. (

c) Whether I am able to determine at this stage that the concussion symptoms allegedly caused by the accident and the concussion symptoms allegedly caused by the soccer tournament are the same damage. “Same Damage” [ 10 ] Civil Procedure Rule 4.11(1)(

a) says that a defendant may make a claim in an action against a person who is not a party if the claim is one alleging that the third party is liable to the defendant for all or part of the plaintiff’s claim. [ 11 ] Similarly, s.5 of the Tortfeasors Act says that if it appears that a person may be wholly or partly responsible for the damages claimed, that person may be made a third party to the action. [ 12 ] In this case, Mr. Meade and Synergy allege that Ms. Ramirez and Valley United are liable to them for all or part of Ms. Rutt’s claim because of s.3 (

c) of the Tortfeasors Act . [ 13 ] Subsection 3 (

c) of the Tortfeasors Act says that, “w here damage is suffered by any person as a result of a tort, … any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage , whether as a joint tortfeasor or otherwise ” (emphasis added). [ 14 ] Two or more tortfeasors are joint tortfeasors (

a) where one is the principal of or vicariously responsible for the other, (

b) where a duty imposed jointly on them is not performed, or (

c) where there is concerted action between them to a common end: Kasperson v. Halifax (Regional Municipality) , 2012 NSCA 110 at para.34, citing Glanville L. Williams, Joint Torts and Contributory Negligence: A Study of Concurrent Fault in Great Britain, Ireland and the Common-Law Dominions (London: Stevens & Sons Ltd., 1951) at para.1. [ 15 ] Where tortfeasors are not joint they are referred to as “several,” “separate,” or “independent.” There are two kinds of separate or independent tortfeasors: (

a) those whose acts combine to produce the same damage, and (

b) those whose acts cause different damage: Kasperson v. Halifax, supra at para.34, citing Williams at para.1. [ 16 ] Separate or independent tortfeasors whose acts combine to produce the same damage are referred to as “concurrent tortfeasors.” [ 17 ] In the case of concurrent tortfeasors, each one is liable to the injured person for the full extent of the damage. [ 18 ] At common law, there was no right of contribution between concurrent tortfeasors: see Kasperson v. Halifax, supra at para.44. [ 19 ] Subsection 3 (

c) of the Tortfeasors Act , and similar legislation in other Canadian jurisdictions, ameliorated the common law to allow a tortfeasor to seek contribution from someone who is, or would if sued have been, liable in respect of the same damage: Kasperson v. Halifax, supra at para.44. The amount of recovery is to be determined by the trial judge as is “just and equitable” having regard to the extent of that person’s responsibility for the damage: s.4 of the Tortfeasors Act . [ 20 ] A claim for contribution between concurrent tortfeasors under s.3 (

c) of the Tortfeasors Act is a statutory claim based on principles of restitution; it is a remedy against the unjust enrichment of one tortfeasor at the expense of another: Kasperson v. Halifax, supra at para.45, citing David Chiefetz, Apportionment of Fault in Tort (Aurora: Canada Law Book, 1981) at pp.8-10 and Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (Toronto, Ont.: Ontario Ministry of the Attorney General, 1988) at pp.49-55. “Consecutive” Tortfeasors [ 21 ] In my view, it is possible for Mr. Meade and Synergy, on the one hand, and Ms.

Ramirez and Valley United, on the other, to be concurrent tortfeasors who caused the same damage to Ms. Rutt even though the accident and the soccer tournament were distinct events that happened at different times. The determining factor is whether the damage caused to Ms. Rutt by the negligence of the defendants and the third parties is the same, in that it is impossible to separate the damage allegedly caused by Mr. Meade and Synergy from that

allegedly caused by Ms. Ramirez and Valley United. See Lawson v. Viersen, 2012 ONCA 25, at paras.30-44 and Sale v. O’Grady’sRestaurant, 2011 ONSC 2437 (Ont. S.C.J.) at paras.32 and 116-132. [22] The cases in this area of the law are inconsistent and difficult to reconcile: see Sale v. O’Grady’s, supra at paras.72 and 104. [23] In the cases relied upon by Ms.

Ramirez and Valley United, courts have held that drivers in successive motor vehicle accidentsthat injured the plaintiff cannot be concurrent tortfeasors responsible for the same damage, even if the same body parts may have beendamaged or the damage is indivisible, because the court at trial will apportion responsibility as between the wrongdoers, and thereforethe defendant will only be held liable for the amount of damage that they alone caused to the plaintiff. See Roussel v. Durette, 2002NBQB 171 at para.20; Willoughby v. Weber, 2008 CarswellOnt 1167 (Ont.

S.C.J.) at paras.23-26, relying on the Ontario Court of Appealdecision in Misko v. John Doe, 2007 ONCA 660 , [2007] O.J. No.3615; and Leoppky v. McWilliams, 2001 ABCA 197 atparas.21-25. [24] In the cases relied on by Mr. Meade and Synergy, courts have permitted a defendant in a motor vehicle accident case to thirdparty a medical professional who treated the plaintiff for injuries sustained in the accident. See Hughes v. Meters, 1994 ABCA 43 atpara.2, affirming 2012 ABQB 679, and Katzman v.

Yaeck, 1982 CarswellOnt 414 (CA) at paras.23-27. [25] Strathy J., as he then was, conducted a thorough review of the conflicting Ontario authorities in this area: Sale v. O’Grady’s,supra at paras.72-126. He concluded that, in the case of consecutive tortious acts, a defendant may be exposed to liability for the entiretyof the consequences of both acts and would therefore be entitled to claim contribution and indemnity from the “consecutive” tortfeasorif: (

a) there is a single indivisible injury, (

b) making it impossible to separate the damage caused by the first accident from that caused by the second accident, and (

c) impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the more common “but for”test, (

c) therefore requiring the use of the “material contribution” test for causation, (

d) in circumstances where the plaintiff has not clearly limited their claim for damages to those caused by the first accident. Sale v. O’Grady’s, supra, at paras.127-133. [26] Strathy J. distinguished the Ontario Court of Appeal decision Misko v. John Doe, supra, on the basis that plaintiff in that casehad conceded that he was not seeking to be fully compensated for all damage caused by both the defendant and the third party. [27] In Sale v. O’Grady’s, supra, the plaintiff had been injured in two slip and fall accidents two years apart.

She filed a claimagainst the defendant allegedly responsible for the first accident. The defendant third partied the person allegedly responsible for thesecond accident. Strathy J. declined to strike the third party claim. [28] Strathy J. found that he could not, at that stage of the proceedings, determine whether the damage caused by the two slip andfalls was indivisible. He noted, however, that it would be rare for there to be a single indivisible injury making it impossible to separatethe damages caused by the first accident from those caused by the second. See Sale v.

O’Grady’s, supra at paras.128-130. [29] The Ontario Court of Appeal in Lawson v. Viersen, supra approved of the reasons of Strathy J.: at paras.42-44. Rouleau J.A.,writing for the Court of Appeal, stated that “[t]ortfeasors whose torts are separate in time but concur in the sense that they run together toproduce the same damage are described by Glanville L.

Williams … as concurrent tortfeasors,” and that “where damages caused byconsecutive tortfeasors are indivisible, in that it is impossible to determine which tortfeasor caused which damages, the materialcontribution test applies” and “any tortfeasor whose actions materially contributed to those damages is liable for all of the damages and… each tortfeasor has a right of contribution and indemnity from the other tortfeasors who caused the damage”: at paras.31-42.

TheOntario Court of Appeal confirmed that the material contribution test applies only if causation cannot be determined using the “but for”test: para.33. [30] In my view, interpreting s.3(

c) of the Tortfeasors Act in the manner suggested by Strathy J. in Sale v. O’Grady’s, supra and bythe Ontario Court of Appeal in Lawson v. Viersen, supra gives appropriate effect to the express words of s.3(

c) of the Tortfeasors Act(“liable in respect of the same damage”), the entitlement of an injured person to recover fully from any one of several concurrenttortfeasors, and the purpose of the legislation (to remedy the unjust enrichment of one tortfeasor at the expense of another). [31] Therefore, if the ongoing concussion symptoms of Ms. Rutt allegedly caused by Ms. Ramirez and Valley United, on the onehand, and Mr. Meade and Synergy, on the other hand, are indivisible, in that it is impossible to determine which incident caused whichdamage, the material contribution test applies. If Mr.

Meade and Synergy are found to have materially contributed to the damage, theymay be held liable to Ms. Rutt for all of the damage. Mr. Meade and Synergy would then have a right to seek contribution and indemnityfrom Ms. Ramirez and Valley United. [32] Ms. Rutt took no position on the motion to strike the third party claim. She therefore did not make it clear that she is limitingher claim against Mr. Meade and Synergy to the concussion symptoms she allegedly sustained in the accident. [33] The difficulty lies in determining whether the alleged consecutive tortious acts have caused damage to Ms.

Rutt that isindivisible or divisible. Is the Damage Divisible or Indivisible?

[ 34 ] Whether the concussion symptoms allegedly caused by the accident and those allegedly caused by Ms. Rutt’s participation in the soccer tournament are divisible or indivisible is a question of fact: see Sale v. O’Grady’s, supra at para.33. [ 35 ] In this case, Mr. Meade and Synergy allege that Ms. Ramirez and Valley United knew about the accident and Ms. Rutt’s concussion symptoms, failed to adhere to Soccer Nova Scotia and Soccer Canada concussion protocols, failed to obtain medical clearance for Ms. Rutt to return to play, and pressured or allowed Ms.

Rutt to play three weeks after the accident while she was still recovering, thereby impeding her medical recovery and causing an exacerbation of her concussion symptoms. [ 36 ] I am not able to determine, at this stage of the proceedings, whether the concussion symptoms suffered by Ms. Rutt after the soccer tournament are capable of division. It will be up to the trial judge to determine this. If the trial judge finds that the damage caused by the two alleged incidents can be separated, then Ms. Ramirez and Valley United are not concurrent tortfeasors and the third party claim against them will fail.

If the trial judge determines that the damage is indivisible, there is a risk that Mr. Meade and Synergy will be required to fully compensate Ms. Rutt for the post-tournament concussion symptoms, including those allegedly caused by her participation in the soccer tournament. [ 37 ] I am therefore not satisfied that the third party claim should be struck. Conclusion [ 38 ] The motion of Ms. Ramirez and Valley United to strike the third party claim is dismissed. [ 39 ] If the parties cannot agree on costs, I will receive written submissions from them within 30 calendar days of the date of this decision.

Gatchalian, J.