Digests

Dryburgh v. Oak Bay Marina (1992) Ltd.

T-841-97

2001 FCT 671, Nadon J.

18/6/01

19 pp.

Appeal from Prothonotary's decision ([2001] 1 F.C. 192) dismissing motion for summary judgment brought by plaintiff Dryburgh--In motion for summary judgment, question of law whether exculpatory clause in mooring contract exempting defendants Oak Bay Marina Ltd. (Oak Bay) and Robert Wright (officer and hands-on owner of company) from liability--Plaintiff's yacht damaged while moored at Oak Bay marina, near Victoria, British Columbia, when dock broke loose and drifted aground--Plaintiff claimed damages, alleging, inter alia, dock broke loose because of poor design, construction, maintenance and supervision--Moorage contract containing exculpatory clause (providing use of facilities, storage and mooring solely at owners' risk)--Prothonotary found clause exempted both defendants from liability--Plaintiffs attacking validity and interpretation of exculpatory clause--More difficult issue whether exculpatory clause covered defendant Robert Wright and exempted him from liability towards plaintiff--Although concluded exceptions to doctrine of privity of contract, based on trust and agency, not available to Wright herein, Prothonotary concluded in his favour on basis of exception to doctrine enunciated by S.C.C. in London Drugs Ltd. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299--S.C.C. majority therein held for employees to benefit from limitation of liability clause found in contract between their employer and customer, 2 requirements must be met: exclusion of liability clause must, either expressly or impliedly, extend its benefits to employees seeking to rely on it; employees seeking benefit thereof must have been acting in course of their employment and must have been performing very services provided for in contract between their employer and customer when loss occurred--Prothonotary reached right conclusion in holding first requirement of London Drugs met herein (clause impliedly extended benefits thereof to Wright)--Court sharing misgivings expressed by McLachlin J. (as she then was): term "warehouseman" used therein did not include employees--Similarly, herein, far from obvious term "Company" including Oak Bay's employees--However, rule now unless clear intention not to cover employees, Court should imply employees covered by limitation or exclusion clause--As to second requirement, Prothonotary also correct in concluding in favour of Wright--Plaintiff expected berths properly and safely built and maintained, so as to enable them to withstand all reasonably foreseeable weather and sea conditions--So, Wright's work in redesigning and reconstructing marina had to be considered--Negligent conduct alleged need not comprise all of services contracted for--Appeal dismissed.