Digest: Rodgers v Thompson, 2018 SKCA 33

• Date: May 18, 2018

Reported as: 2018 SKCA 33

Docket Number: CACV 3225 , CA17144

Court: Court of Appeal

Date: 2018-05-18

Judges:

• Whitmore

Subjects:

• Civil Procedure � Queen�s Bench Rules, Rule 3-72
• Statutes � Interpretation � Contributory Negligence Act, Section 7
• Civil Procedure � Appeal � Application for Leave to Appeal

Digest: The applicant applied for leave to appeal the decision of a Queen�s Bench chambers judge that dismissed her application to add a third party pursuant to The Contributory Negligence Act and to amend her statement of defence pursuant to Queen�s Bench rules 3-72(1)(c)(ii) and 3-72(3) (see: 2018 SKQB 80). The applicant had been named a defendant in an action for malicious prosecution. She sought to add the plaintiff�s lawyer as a third party on the basis that he had been negligent during the criminal prosecution proceedings with his client. The chambers judge relied upon Chernesky v Armadale in concluding that the applicant as an intentional tortfeasor was not permitted to pursue a claim for contribution or indemnity against the lawyer, an alleged tortfeasor accused of negligence. In addition, the chambers judge opined that the proposed third party claim and amendment to the statement of defence constituted a collateral attack regarding the criminal proceedings, which was an abuse of process. The applicant�s proposed grounds of appeal were that the chambers judge erred in law: 1) because he had not given the applicant the opportunity to respond to the collateral attack and abuse of process issues because they were raised for the first time in the chambers decision; and 2) by relying on Chernesky. If it does apply, it should be reconsidered because its interpretation of the Act is not consistent with modern principles of statutory interpretation. Further, Queen�s Bench rule 3-31(c) applied regardless of Chernesky so as to broaden the scope of third party claims to permit adding the plaintiff�s lawyer.
HELD: Leave to appeal was granted. The court found that the proposed grounds of appeal raised matters of sufficient merit and importance to warrant granting leave.

Statutes Considered:

• Contributory Negligence Act, RSS 1978, c C-31, s 7
• Contributory Negligence Act, RSS 1978, c C-31, s 10
• Court of Appeal Act, 2000, SS 2000, c C-42.1, s 8

Rules Considered:

• QB Rule 3-2
• QB Rule 3-31
• QB...