Orlandello v. Nova Scotia (Attorney General), (2005) 234 N.S.R.(2d) 247 (CA)

• Judge: Roscoe, Bateman and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 22, 2005
• Jurisdiction: Nova Scotia
• Citations: (2005), 234 N.S.R.(2d) 247 (CA);2005 NSCA 98

Orlandello v. N.S. (A.G.) (2005), 234 N.S.R.(2d) 247 (CA);

    745 A.P.R. 247

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. JN.048

Cheryl White, as representative of the Estate of Luke James Meredith, a deceased person, and Jill Chase (appellants) v. Bernice Orlandello and the Attorney General of Nova Scotia (respondents)

(CA 236171; 2005 NSCA 98)

Indexed As: Orlandello v. Nova Scotia (Attorney General)

Nova Scotia Court of Appeal

Roscoe, Bateman and Fichaud, JJ.A.

June 22, 2005.

Summary:

The plaintiff was injured by the alleged negligent operation of a motor vehicle by Chase (owned by Meredith) on a provincial ferry operated by the defendant province. The plaintiff's two claims against Chase were settled. The plaintiff released Chase and Meredith from further liability and covenanted to "indemnify" them from all claims arising out of personal injuries resulting from the accident. The plaintiff subsequently sued the defendant province. The province third-partied Meredith. Meredith, invoking the release, applied under rule 13 for summary judgment dismissing or staying the action. Meredith and Chase also sought summary judgment to dismiss the third party claim.

The Nova Scotia Supreme Court, in a judgment reported (2004), 227 N.S.R.(2d) 151; 720 A.P.R. 151, dismissed the application. There was an arguable issue to be tried as to the scope of the ambiguous release and whether the indemnification clause, which was inconsistent with a full release, was meaningless. Given the ambiguity, it could not be said that the plaintiff's action constituted an abuse of process in the face of the release. Finally, there was no basis to summarily dismiss the third party claim. Meredith's Estate and Chase appealed.

The Nova Scotia Court of Appeal allowed the appeal. The release barred the claim, which should have been summarily dismissed. A stay of proceedings was not the most appropriate remedy. The plaintiff was liable, under the release, to indemnify the named releasees for the expenses of the action.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - The plaintiff, injured by a motor vehicle on a provincial ferry, settled her claim against the driver and owner of the vehicle - She released the driver and owner (releasees) from further liability and covenanted to "indemnify" them from all claims resulting from the accident - The release did not contain a covenant not to bring any action that could lead to a claim over against the releasees - The plaintiff then sued the province, who third-partied the releasees - The releasees, invoking the release, sought summary judgment to dismiss the action and third party claim - The trial judge dismissed the application - The release was ambiguous - Although the first part of the release purported to be a full release of all claims, the indemnification clause was inconsistent with a full release - The ambiguity resulted in an arguable issue for trial as to the scope of the release and whether the indemnification clause was meaningless - The ambiguity negated any claim of abuse of process in bringing the action - The province's third party claim was not necessarily foreclosed by the settlement between the third parties (releasees) and the plaintiff, particularly where the releasees were fully indemnified under the release - The Nova Scotia Court of Appeal held that summary judgment should have been granted to dismiss the claim - The release barred the claim - The release was not ambiguous, the indemnity was neither meaningless nor unconnected with the release and the absence of an express covenant not to sue had no legal significance ("release bar" rule did not apply) - See paragraphs 1 to 34.

Releases - Topic 4066

Operation - Persons released - Joint or joint and several obligors - Effect of release of one - [See Practice - Topic 5708 ].

Torts - Topic 6903

Defences - Release - Effect or validity of - [See Practice - Topic 5708 ].

Torts - Topic 7165

Joint and concurrent tortfeasors - Joint tortfeasors - Release of one - Effect of - [See Practice - Topic 5708 ].

Cases Noticed:

Sezerman v. Youle (1996), 150 N.S.R.(2d) 161; 436 A.P.R. 161 (C.A.), refd to. [para. 11].

Eikelenboom v. Holstein Association of Canada (2004), 226 N.S.R.(2d) 235; 714 A.P.R. 235; 2004 NSCA 103, refd to. [para. 11].

Sinanan v. Woodyer et al. (1999), 176 N.S.R.(2d) 201; 538 A.P.R. 201 (C.A.), refd to. [para. 11].

United Gulf Developments Ltd. et al. v. Iskandar et al. (2004), 222 N.S.R.(2d) 137; 701 A.P.R. 137; 235 D.L.R.(4th) 609; 2004 NSCA 35, refd to. [para. 12].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241; 146 D.L.R.(4th) 577, refd to. [para. 12].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1; 178 D.L.R.(4th) 7, refd to. [para. 12].

Verreault (J.E.) & Fils Ltée v. Quebec (Procureur général), [1977] 1 S.C.R. 41; 5 N.R. 271, refd to. [para. 16].

Quebec (Attorney General) v. Labrecque et al., [1980] 2 S.C.R. 1057; 38 N.R. 1; 125 D.L.R.(3d) 545, refd to. [para. 16].

Canada (Attorney General) v. Newfield Seeds Ltd. (1989), 80 Sask.R. 134; 63 D.L.R.(4th) 644 (C.A.), refd to. [para. 16].

Marble v. Saskatchewan et al. (2003), 236 Sask.R. 14 (Q.B.), refd to. [para. 16].

Begg v. East Hants (Municipal District) and Nova Scotia (Director of Assessment) (1986), 75 N.S.R.(2d) 431; 186 A.P.R. 431; 33 D.L.R.(4th) 239 (C.A.), refd to. [para. 22].

Canasia Industries Ltd. v. May (2000), 204 N.S.R.(2d) 88; 639 A.P.R. 88 (C.A.), refd to. [para. 22].

CIBC Mortgage Corp. v. Ofume (2002), 208 N.S.R.(2d) 185; 652 A.P.R. 185 (C.A.), affing. (2002), 206 N.S.R.(2d) 234; 645 A.P.R. 234 (S.C.), refd to. [para. 22].

Nowe v. Allstate Insurance Co. of Canada (1996), 157 N.S.R.(2d) 148; 462 A.P.R. 148 (S.C.), refd to. [para. 22].

McQuaid and Roach v. Lapierre (1993), 128 N.S.R.(2d) 327; 359 A.P.R. 327 (S.C.), refd to. [para. 22].

Dipersio v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2004), 228 N.S.R.(2d) 134; 723 A.P.R. 134; 2004 NSCA 139, refd to. [para. 22].

Canada (Attorney General) v. Veinotte (1987), 81 N.S.R.(2d) 356; 203 A.P.R. 356 (T.D.), refd to. [para. 22].

Kothke v. Ekblad et al. (1999), 237 A.R. 119; 197 W.A.C. 119 (C.A.), refd to. [para. 22].

Paletta v. Agro, [1990] O.J. No. 1417 (H.C.), refd to. [para. 22].

Waldman v. Kimberley (D.N.) Insurance Brokers, [1998] O.J. No. 4974 (Gen. Div.), refd to. [para. 22].

Ysselstein v. Tallon, [1992] O.J. No. 881 (Gen. Div.), refd to. [para. 22].

Bransfield (S.) Ltd. v. Fletcher et al. (2003), 264 N.B.R.(2d) 366; 691 A.P.R. 366 (C.A.), refd to. [para. 24].

Flynn v. Halifax (Regional Municipality) et al. (2005), 232 N.S.R.(2d) 293; 737 A.P.R. 293; 2005 NSCA 81, refd to. [para. 24].

Van Patter v. Tillsonburg District Memorial Hospital et al. (1999), 122 O.A.C. 80; 45 O.R.(3d) 223 (C.A.), refd to. [para. 29].

Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108; 245 N.R. 88; 127 B.C.A.C. 287; 207 W.A.C. 287, refd to. [para. 30].

London Drugs Ltd. v. Kuehne & Nagel International Ltd. - see London Drugs Ltd. v. Brassart and Vanwinkel.

London Drugs Ltd. v. Brassart and Vanwinkel, [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1, refd to. [para. 30].

Sinclair-Cockburn Insurance Brokers Ltd. v. Richards et al. (2002), 162 O.A.C. 390; 61 O.R.(3d) 105 (C.A.), refd to. [para. 38].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Torts in Canada (1990), vol. 2, pp. 347, 348 [para. 25].

Hogg, Peter W., Liability of the Crown (2nd Ed. 1989), pp. 12, 163, 164, 214 to 216 [para. 16].

Lordon, Paul, Crown Law (1991), pp. 4, 5 [para. 16].

Nova Scotia, Law Reform Commission, Final Report on Joint Tortfeasors & the Common Law "Release Bar Rule" (2002), generally [para. 24].

Counsel:

John Rafferty, Q.C., and Melanie Perry, articled clerk, for the appellants;

Donald Shewfelt, for the respondent, Orlandello;

Richard Southcott, for the respondent, Attorney General of Nova Scotia.

This appeal was heard on May 24, 2005, at Halifax, N.S., before Roscoe, Bateman and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On June 22, 2005, Fichaud, J.A., delivered the following judgment for the Court of Appeal.