Portage La Prairie Mutual Insurance Co. et al. v. MacLean et al., 2012 NSSC 341

• Judge: Duncan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 03, 2012
• Jurisdiction: Nova Scotia
• Citations: 2012 NSSC 341;(2012), 321 N.S.R.(2d) 269 (SC)

Portage La Prairie Mutual v. MacLean (2012), 321 N.S.R.(2d) 269 (SC);

    1018 A.P.R. 269

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. OC.001

The Portage La Prairie Mutual Insurance Company, a body corporate, Green Thumb Farmers Market Incorporated, a body corporate, and James Hermanson and Jeanette Hermanson (plaintiffs/defendants by counterclaim) v. Emily Anne MacLean (defendant/plaintiff by counterclaim) and Green Thumb Farmers Market Incorporated (third party)

(Hfx. 257302; 2012 NSSC 341)

Indexed As: Portage La Prairie Mutual Insurance Co. et al. v. MacLean et al.

Nova Scotia Supreme Court

Duncan, J.

October 1, 2012.

Summary:

Green Thumb Farmers Inc. had a fire which caused substantial property damage to the business. Green Thumb made a claim of loss to its insurer, Portage La Prairie Mutual Insurance Co. The insurer commenced an action against a Green Thumb employee, alleging that the loss was caused by her negligence and seeking to be reimbursed for the loss. The employee moved for summary judgment on the evidence seeking to have the claim against her dismissed.

The Nova Scotia Supreme Court granted the motion for summary judgment and dismissed the insurer's claim against the employee.

Insurance - Topic 2886

Subrogation - Insurer limited to rights of insured - A business had a fire and claimed against its insurer - The insurer sued an employee of the business (a summer student), alleging that the loss was caused by her negligence (leaving a hot plate unattended) and sought to be reimbursed for the loss (i.e., a subrogated claim) - The employee moved for summary judgment to have the claim against her dismissed - The Nova Scotia Supreme Court granted the motion - It would be unfair to impose a duty of care on the employee in these circumstances; therefore, no action for negligence could be properly brought by the employer (insured) against the employee - The insurer was in no better position than their insured - Thus, the insurer's subrogated claim had no real chance of success - See paragraphs 1 to 38.

Insurance - Topic 2887.1

Subrogation - Action by insurer - When available - [See Insurance - Topic 2886 and Insurance - Topic 2891 ].

Insurance - Topic 2891

Subrogation - Action by insurer - Bars - Waiver - A business had a fire and claimed against its insurer - The insurer sued an employee of the business (a summer student), alleging that the loss was caused by her negligence (leaving a hot plate unattended) and sought to be reimbursed for the loss (i.e., a subrogated claim) - The employee moved for summary judgment to have the claim against her dismissed, arguing that the insurer specifically contracted out of the right to sue an employee - The Nova Scotia Supreme Court granted summary judgment - The court examined the insurance contract and opined that the rights of subrogation against the employees had been specifically waived by the insurer - See paragraphs 39 to 43.

Master and Servant - Topic 4524

Liabilities of servant - To master - Respecting master's property - [See Insurance - Topic 2886 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available - [See Insurance - Topic 2886 and first Practice - Topic 5719 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - The Nova Scotia Supreme Court reviewed the test for summary judgment to dismiss an action on evidence (Civil Procedure Rule 13) - See paragraphs 3 to 6.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Insurance - Topic 2886 and Insurance - Topic 2891 ].

Cases Noticed:

Globex Foreign Exchange Corp. v. Launt et al. (2011), 306 N.S.R.(2d) 96; 968 A.P.R. 96; 2011 NSCA 67, refd to. [para. 4].

Gilbert v. Giffin (2010), 296 N.S.R.(2d) 183; 940 A.P.R. 183; 2010 NSCA 95, refd to. [para. 12].

Bank of Nova Scotia v. MacKenzie's (A.) Auto Mart Inc. et al., [2010] N.S.R.(2d) Uned. 235; 2010 NSCA 81, refd to. [para. 15].

McCourt Cartage Ltd. et al. v. Fleming Estate et al. (1997), 38 O.T.C. 230; 35 O.R.(3d) 795 (Gen. Div.), refd to. [para. 18].

Douglas v. Kinger (2008), 270 O.A.C. 201 (C.A.), refd to. [para. 20].

Lister v. Romford Ice and Cold Storage Co., [1957] A.C. 555, refd to. [para. 23].

Cole v. Lockhart (1998), 205 N.B.R.(2d) 48; 523 A.P.R. 48 (T.D.), refd to. [para. 25].

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, addendum 147 N.R. 336; 21 B.C.A.C. 159; 37 W.A.C. 159, refd to. [para. 35].

Authors and Works Noticed:

Barnacle, Peter, and Wood, Roderick, Employment Law in Canada (4th Ed.), para. 11.113 to 11.118 [para. 24].

Counsel:

John T. Shanks and James L. Chipman, Q.C., for the plaintiffs and for the third party;

Donn Fraser, for the defendant.

This motion was heard on April 3, 2012, in Pictou, Nova Scotia, before Duncan, J., of the Nova Scotia Supreme Court, who delivered the following decision on October 1, 2012.