Wheeler v. Rupp, 2007 ABQB 119 (CanLII)
Court of Queen’s Bench of Alberta
Citation: Wheeler v. Rupp, 2007 ABQB 119
Date: 20070223
Docket: 9903 09909, 9803 22476
Registry: Edmonton
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Between: Action No: 9903 09909
Edna Jean Wheeler, as assigned to the Administrator of the Motor Vehicle Accident Claims Act and Ljubica Snyder, as assigned to the Administrator of the Motor Vehicle Accident Claims Act Plaintiff (Respondent) - and -
Christopher James Rupp and Manley Truman Cox Applicant (Defendant)
And Between: Action No: 9803 22476
Steven Michael Howrish, as assigned to the Administrator of the Motor Vehicle Claims Act Plaintiff (Respondent) - and
Christopher James Rupp and Manley Truman Cox Defendant (Applicant)
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of the
Honourable Mr. Justice Sterling Sanderman
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[1] A car accident took place in August 1998 that generated litigation. Two actions were started against Christopher James Rupp and Manley Truman Cox. Mr. Cox owned a vehicle that Mr. Rupp was driving. It was involved in a collision with two other vehicles. Three individuals commenced litigation. The actions begun by the three plaintiffs were settled prior to trial. the Howrish action was settled in November of 1999. The Wheeler action was settled in December of 2003. The Snyder action was settled in September of 2004. Judgments in the two actions, involving the three plaintiffs, were obtained against Mr. Rupp and Mr. Cox. Judgments, totalling in excess of $70,000.00 were assigned to the Minister responsible for the Motor Vehicle Accident Claims Fund and the Fund took responsibility for paying the plaintiffs.
[2] The Minister, in an attempt to recoup public funds, entered into agreements with Mr. Cox and Mr. Rupp. In September of 2002 Mr. Cox agreed to pay $100.00 from each pay period towards retiring his debt. In January of 2006 this amount was increased to $250.00 per pay period. He has been attempting to fulfill his obligation of repayment for over four years. In February of 2006 Mr. Rupp paid the Minister $14,020.00. Upon receipt of those funds, he received a total release from the Minister discharging him from any further responsibility of repayment. Mr. Cox brings an application seeking a declaration that this release is applicable to him and that his obligation to the Minister has been satisfied. He further requests that any funds paid by him to the Minister subsequent to the release given to Mr. Rupp should be returned to him.
[3] Mr. Cox relies upon the common law Rule that the release of one joint tortfeasor releases all other joint tortfeasors. He points to the decision of Milvain, J. in Dodsworth v. Holt et al 1964 CanLII 466 (AB KB), 44 D.L.R. (2d) 480 (Alta. Supreme Court) where the following passage is found:
There is no doubt but that at common law, the release of one joint tortfeasor releases the others: Duck v. Mayeu, [1892] 2 Q.B. 511.
The principle is well stated by Lord Atkinson in London Ass’n for Protection of Trade v. Greenlands Ltd., [1916] 2 A.C. 15, where he says at pp. 31-2:
Each of the joint wrong-doers must be presumed to have known the wrongful nature of their joint act. There cannot be any contribution between them: Adamson v. Jarvis (1872) 4 Bing. 66; Palmer v. Wick and Pulteneytown Steam Shipping Co. [1894] A.C. 318, 324. The release of one would operate as the release of all. The payment by one of the damages would discharge them all. Nay, even the recovery of judgment against one would be a bar to any action against the others for the same cause, although the judgment remained unsatisfied, King v. Hoare (1844) 13 M. & W. 494 and Brinsmead v. Harrison (1872) L.R. 7 C.P. 547 – because the cause of action transit in rem judicatam.
[4] The rationale for this rule comes from the concept that the liability of joint tortfeasors is derived from one indivisible cause of action. A settlement and release entered into with one tortfeasor has the effect of releasing the other tortfeasors because the action is terminated.
[5] This concept has been the subject of academic criticism. Professor Fleming, in his textbook, The Law of Torts, 8th ed; 1992 at page 259 comments:
As an assumed corollary of the “one cause of action” theory, it was early settled that the release of one joint tortfeasor, by deed or accord and satisfaction, discharges all. This rule has not been abrogated expressly except in Tasmania; but it may have been implicitly: by authorising successive actions, the unity of the common law action against all tortfeasors may have been severed in its entirety. The effect of the rule was in any event pernicious, either discouraging settlements or ensnaring the unwary. It was all the more difficult to justify because the law has otherwise been most solicitous to encourage settlements with one or more multiple tortfeasors by only reducing the settlor’s claim against the others pro tanto rather than in equal shares (pro rata) - thus making no distinction between what is received in partial satisfaction under a settlement and under a judgment.
[6] In Report No. 31: Contributory Negligence and Concurrent Wrongdoers (Edmonton: University of Alberta, 1979), the Institute of Law Research and Reform suggested that the common law Rule with regard to releases be abolished. It was suggested that the legislation be changed to give a release the same meaning as a judgment in the Tort-Feasors Act. Section 3(1) of the Tort-Feasors Act RSA 2000 c.T-5 states:
3(1) When damage is suffered by any person as a result of a tort, whether a crime or not,
(a) a judgment recovered against any tort-feasor liable in respect of that damage is not a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage,
[7] The legislation has not been changed. Releases are not covered by section 3(1) of the Tort-Feasors Act. The common law is only displaced by legislation to the extent that the legislation is clearly inconsistent with the common law. A statute should not be construed to change the common law beyond what the plain words of the statute say.
[8] In spite of the academic and some judicial criticism (CRC-Evans Canada Ltd. v. Pettifer 1997 CanLII 14943 (AB KB), 197 A.R. 24 (Alta.. Q.B.)) the common law Rule still remains in Alberta. Section 3(1) does not apply to releases. The release granted to Mr. Rupp by the Minister applies to Mr. Cox.
[9] Mr. Cox became responsible for injuries suffered by the plaintiffs through the concept of statute imposed vicarious liability. He now should be able to rely upon an existing common law right to avoid further responsibility. To deny him this remedy would make a mockery of the rule of law. The Minister, in granting the release to Mr. Rupp, should have drafted a document that protected his legal right to continue to pursue Mr. Cox.
[10] Mr. Cox is not entitled to the return of any funds paid by him to the Minister after the release was given to Mr. Rupp. He continued to make payments pursuant to an agreement he made with the Minister to retire a valid judgment in existence. A judgment continues up until the court declares that the obligation to repay no longer exists. That is the relief that has been granted to the applicant. No further payments need be made.
[11] The applicant will have costs of this application.
Heard on the 13th day of February, 2007.
Dated at the City of Edmonton, Alberta this 23rd day of February, 2007.
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Sterling Sanderman J.C.Q.B.A. |
Appearances:
Frank C. DeAngelis
Main Street Law Offices
for the Applicant Manley Truman Cox
Bruce James
Chomicki Baril Mah LLP
for the Administrator of the Motor Vehicle Accident Claims Act