FD FD: DT:D DN: 807/92 STY:Purdy v. Felix PANEL: Strachan; Robillard; Preston DDATE: ACT: KEYW: Right to sue; In the course of employment

Transcription

1 FD FD: DT:D DN: 807/92 STY:Purdy v. Felix PANEL: Strachan; Robillard; Preston DDATE: ACT: KEYW: Right to sue; In the course of employment (proceeding to and from work) (employer's vehicle); In the course of employment (travelling). SUM: The defendants in a civil case applied to determine whether the plaintiff's right of action was taken away. The plaintiff worked for his brother. The plaintiff was a passenger in a vehicle owned and driven by his brother at the time of a motor vehicle accident. The plaintiff and his brother were proceeding 100 kilometres from Thunder Bay to Nipigon to work on an installation contract. The Panel found that the plaintiff was in the course of employment at the time of the accident. Workers are generally not in the course of employment while proceeding to and from work. The distance involved in this case does not necessarily create an exception. However, there were other factors here as well that indicated that the worker should be found to be in the course of employment. The plaintiff and his brother were proceeding to a job in the brother's company vehicle. There was benefit to both the plaintiff and his brother. Although the worker was not specifically paid for travel time, he received a premium above his normal pay. The plaintiff's right of action was taken away against his brother and against another worker in one of the other vehicles involved in the accident. The right of action against the other defendants was not taken away. They were entitled to a declaration under s. 10(11). [14 pages] PDCON: TYPE: DIST: DECON: Decision No. 909/89 (1990), 13 W.C.A.T.R. 274 refd to; Decisions No. 217/88 consd, 773/91 refd to, 789/91 consd BDG:Operational Policy Manual, Documents no , IDATE: HDATE: TCO: KEYPER:A. Demeo, a lawyer; D. Martin, a lawyer; D. Colborne, a lawyer XREF: COMMENTS: TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 807/92 IN THE MATTER OF an application pursuant to section 17 of the Workers' Compensation Act, R.S.O. 1990, c. W.11, as amended. AND IN THE MATTER OF an action commenced in the Ontario Court (General Division) at the City of Thunder Bay as Action No A.D B E T W E E N: EARL PURDY, FRANCESCO CARDENIA, JOSE FELIX and RICK BRODRECHT TRUCKING LTD. and ZURICH INDEMNITY COMPANY OF CANADA Applicants in this application and Defendants in the Ontario Court (General Division) Action. - and - CARLOS FELIX, GERALDINE FELIX, FERNANDA FELIX and MARIA FELIX Respondents in this application and Plaintiffs in the Ontario Court (General Division) Action.

3 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 807/92 IN THE MATTER OF an application pursuant to section 17 of the Workers' Compensation Act. AND IN THE MATTER OF an action commenced in the Ontario Court (General Division), at the City of Thunder Bay, as Action No A.D B E T W E E N: EARL PURDY, FRANCESCO CARDENIA, JOSE FELIX and RICK BRODRECHT TRUCKING LTD. and ZURICH INDEMNITY COMPANY OF CANADA Applicants/Defendants - and - CARLOS FELIX, GERALDINE FELIX, FERNANDA FELIX and MARIA FELIX Respondents/Plaintiffs WORKERS' COMPENSATION ACT SECTION 17 APPLICATION

4 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 807/92 This Section 17 Application was heard in the city of Thunder Bay on November 10, 1992, by a Tribunal Panel consisting of: I.J. Strachan: Vice-Chair, K.W. Preston : Member representative of employers, M. Robillard : Member representative of workers. THE SECTION 17 APPLICATION The application arises out of Ontario Court (General Division) Action No. 6686/90 initiated in Thunder Bay. The Defendant, Earl Purdy ("Purdy") seeks a declaration, pursuant to section 17 of the Workers' Compensation Act (the "Act"), that the right of action of the Plaintiff, Carlos Felix, ("Carlos") has been taken away by the provisions of the Act. The application is supported by the Defendants, Jose Felix ("Jose") and Zurich Indemnity Company of Canada ("Zurich"). A. Demeo, of the law firm Carrel & Partners, represented the Applicant, Purdy. D. Martin of the law firm Martin & Scrimshaw represented the Defendants Jose and Zurich. D. Colborne of the law firm Colborne, Kelly, Climenhage & Young represented the Plaintiff Carlos. Francesco Cardenia and Rick Brodrecht Trucking Ltd. were not represented at the hearing. The Panel had before it the Applicant's Section 17 Statement of Fact and Law, the Respondent's Statement of Fact and Law and a correspondence filed by the Tribunal Counsel Office. The Panel heard testimony from Carlos Felix and Jose Felix as well as submissions from Messrs. Demeo, Martin and Colborne. THE PANEL'S REASONS (i) The nature of the case The basic facts giving rise to the application are not in dispute. From the evidence before the Panel, we find: 1. On September 16, 1989, Carlos was a passenger in a van which was involved in a collision on Highway 17, east of the city of Thunder Bay. 2. The driver and owner of the van was Jose, brother of Carlos. 3. Jose carried on business under the trade name "Superior Flooring". At the time of the accident, Superior Flooring was a sole proprietorship. 4. Carlos had worked as a full-time employee of Superior Flooring since approximately March 1988.

5 2 5. At 7:30 a.m. on Saturday, September 16, 1989, Jose and Carlos were travelling to the town of Nipigon where they intended to install special flooring in a house. Nipigon is located approximately 100 kms. east of Thunder Bay. Both Carlos and Jose resided in the city of Thunder Bay. 6. At the time of the accident, Superior Flooring was a Schedule 1 employer under the Act. 7. At the time of the accident, Purdy was employed by Clint Brocklebank, a Schedule 1 employer under the Act. Clint Brocklebank carried on a trucking business. 8. The tractor/trailer unit operated by Purdy was previously owned by and operated in the business of Rick Brodrecht Trucking Ltd., also a Schedule 1 employer under the Act. This business was sold to Clint Brocklebank prior to the motor vehicle accident. At the time of the accident, not all of the required filings to change ownership of the assets had been completed. 9. The Defendant, Francesco Cardenia was not in the course of employment at the time of the accident. The evidence indicates that, at the time of the accident, the Felix van was eastbound following a tractor/trailer unit driven by Purdy. The Purdy tractor/trailer was transporting a load of cattle. When the Purdy vehicle pulled out to pass another tractor/trailer unit, it was confronted by a westbound motor vehicle operated by Francesco Cardenia. It appears that Mr. Cardenia took evasive action and swerved onto the north shoulder of the highway. He drove around the Purdy vehicle, lost control of his vehicle, and collided with the Felix vehicle. Zurich are the insurers of the vehicle in which Carlos was a passenger. Zurich was added as a defendant pursuant to the uninsured coverage portion of the insurance policy. Carlos alleges entitlement to coverage for injuries suffered as a result of an accident involving an uninsured or unidentified automobile. There was an allegation that the vehicle driven by Purdy may have been an "uninsured" vehicle as defined in the automobile insurance policy carried by Jose. (ii) Legislation Section 17 of the Act provides: 17 Any party to an action may apply to the Appeals Tribunal for adjudication and determination of the question of the plaintiff's right to compensation under this Part, or as to whether the action is one the right to bring which is taken away by this Part, or whether the action is one in which the right to recover damages, contribution, or indemnity is limited by this Part, and such adjudication and determination is final and conclusive. Subsection 10(9) provides:

6 3 10(9) No employer in Schedule 1 and no worker of an employer in Schedule 1 or dependant of such worker has a right of action for damages against any employer in Schedule 1 or any executive officer or any director or any worker of such employer, for an injury for which benefits are payable under this Act, where the workers of both employers were in the course of their employment at the time of the happening of the injury, but, in any case where the Board is satisfied that the accident giving rise to the injury was caused by the negligence of some other employer or employers in Schedule 1 or their workers, the Board may direct that the benefits awarded in any such case or a proportion of them shall be charged against the class or group to which such other employer or employers belong and to the accident cost record of such individual employer or employers. Section 16 of the Act provides: 16 The provisions of this Part are in lieu of all rights and rights of action, statutory or otherwise, to which a worker or the members of his or her family are or may be entitled against the employer of such worker, or any executive officer thereof, for or by reason of any accident happening to the worker or any industrial disease contracted by the worker on or after the 1st day of January, 1915, while in the employment of such employer, and no action lies in respect thereof. If Carlos were in the course of employment at the time of the accident, his right to sue some of the Defendants is taken away by the provisions of the Act, specifically subsection 10(9) and section 16. (iii) Testimony of Carlos Felix Carlos testified that he had been employed by Jose since approximately March He was employed as a labour/helper in the floor covering business. He was a full-time employee working approximately 40 hours per week. He testified that his hourly wage was approximately $6.00 per hour at the time of the accident. Carlos was paid on the basis of a 40-hour week, although sometimes he would work less than eight hours per day. He was not paid an overtime rate if his weekly time exceeded 40 hours. He testified that he usually worked in the city of Thunder Bay, although on two or three occasions he had worked outside the city. Carlos testified that his brother had asked him, on Friday, September 15, 1989, to work on a flooring project in the town of Nipigon. Jose picked up Carlos at home in Jose's van at approximately 6:00 a.m. on Saturday, September 16, The 100-km drive usually took approximately one hour. Carlos testified that there were no clear arrangements with Jose regarding the amount of money to be paid for this special job. He testified that when he had worked in Redrock and Marathon, he and his brother had stayed

7 4 in a hotel. Jose had paid all expenses for food and hotel accommodation. On those occasions, he had also travelled with his brother in Jose's van. Carlos testified that he could have taken public transport to the out-of-town jobs and his brother was essentially doing him a favour in providing transportation in the van. He testified that it was his understanding that he was paid only when he got to the job site. He acknowledged that he had a pre-existing low back condition and had received compensation benefits for approximately four years as well as a permanent disability award. Counsel for the Applicant submitted that this should enable the Hearing Panel to make a finding that any ongoing low back disability was not attributable to the automobile collision but was attributable to an aggravation of a pre-existing condition. (iv) Testimony of Jose Felix Jose testified that he owned one vehicle - namely the van involved in the accident. The van was available for his personal use and for use in his business. He testified that it was used to haul materials and carry tools for the different flooring jobs. The tools included "kickers" and stretchers for use in installing carpet, rollers, hammers, screwdrivers, scrapers, and other tools used in floor installations. Jose testified that he would have been paid approximately $1, for the Nipigon project. The fee was exclusive of materials. He testified that Carlos was to be paid between $ and $ for the weekend job. Jose indicated that the job would take two days (i.e., Saturday and Sunday) and the two brothers would probably have stayed overnight in a hotel. Food and lodging would have been paid by Jose. Jose testified that the Nipigon project had been arranged by Starlight Flooring, a company which occasionally subcontracted work to him. He indicated that in arriving at a fee for the installation of the flooring material, he took into account all costs associated with the project including installation, clean up, cost of employee/helpers and travel. He confirmed that he did not pay Carlos in cash but adjusted his payroll records for such projects according to the amount paid. Thus, if a worker were paid $ for a project, this would translate into 50 hours work at $6/hour in his payroll records. He confirmed that deductions were always made for tax, CPP and UIC in association with these lump sum payments. Jose confirmed that he had never paid Carlos specifically for travel time. He stated that he attempted to include the travel time within the eight hours for which an employee was paid on a daily basis. He confirmed that he had not discussed the costing of the Nipigon project with his brother. Jose also confirmed that he occasionally gave his brother a ride to work when they worked in Thunder Bay and that Carlos was free to refuse any out-of-town work. He reported the accident to the WCB and did not know why his brother's claim had been refused. He also confirmed that the Nipigon project required two persons to complete the project on the weekend. (v) Applicant's submissions

8 5 Counsel for the Applicant submitted that Carlos was clearly in the course of employment at the time of the accident. In his submission, a comparison of the employment-related factors and the non-employment factors, indicated that Carlos' activity at the time of the accident fell within an exception to the general rule that a worker is not considered to be in the course of employment when travelling to or from the workplace. Counsel noted WCB Operational Policy Manual, Document # , provided in part: Without limitation to the following, the Board will consider entitlement in claims where a worker is injured when: going to or from work in transport under the control and supervision of, or chartered by, the employer,... travelling on company business, by the most direct and uninterrupted route, under the supervision and control of the employer. Counsel also referred to Operational Policy Manual, Document # , which provides in part: In the course of employment" also extends to the worker while going to and from work in a conveyance under the control and supervision of the employer. Counsel submitted that the location of the Nipigon project - i.e., 100 kms outside Thunder Bay - created a travel component in the worker's employment. He submitted that the worker's remuneration for the Nipigon project, according to Jose, was between $ and $ Counsel submitted that such a payment obviously had a travel component factored into the remuneration. Counsel also noted that Jose had testified that, had Carlos travelled on his own, Jose would have paid for his gas and expenses to work in Nipigon. Counsel submitted that the trip was made in the employer's van which carried the tools of the trade for the floor installation business. He noted that the tools and van were being used for the Nipigon project and that the employer would have paid for any overnight stay, including food, had it been necessary for the completion of the flooring project. He submitted that the trip to Nipigon was clearly an exception to the general rule on travelling to and from work since the entire trip was made in the employer's van and under the control and supervision of the employer. Counsel cited WCAT Decision No. 773/91 as an example of a situation where a truck used in a business became an integral part of that business. He submitted that, in the case before the Panel, because it was necessary to convey both equipment and employees to the project site in Nipigon, use of the van was consistent with the usual use of the truck in the flooring business and the trip was made for purposes of the employer's business. In counsel's submission, when the employment factors were weighed against the

9 6 non-employment factors, Carlos Felix was in the course of his employment at the time of the accident. (vi) Respondent's submissions Counsel for the Plaintiff/Respondent characterized the travel on the morning of the accident as merely travel to and from a place of employment. Ordinarily, a worker is not in the course of employment while travelling to and from work. This is an activity which usually does not involve a sufficient element of work-relatedness to attract coverage under the Act. It is more in the nature of a public activity. He noted that the employer was the Plaintiff's brother and, occasionally, the employer gave his brother a ride to or from work, whether it was within the limits of the city of Thunder Bay or outside those limits. Counsel referred to WCAT Decision No. 789/91 which quoted certain factors set out in WCAT Decision No. 217/88. At page 6 of Decision No. 789/91, the Panel quoted some of the criteria used in Decision No. 217/88 to reach a decision after considering employment and non-employment aspects of an activity. The criteria are described as follows: The following are some broad criteria which can be used in balancing the employment and the non-employment aspects of the activity: - whether the injury occurred on the premises of the employer; - whether it occurred in the process of doing something for the benefit of the employer; - whether it occurred in the course of action taken in response to instructions from the employer; - whether it occurred in the course of using equipment or materials supplied by the employer; - whether it occurred in the course of receiving payment or other consideration from the employer; - whether the risk to which the employee was exposed was the same as the risk to which he is exposed in the normal course of production; - whether the injury occurred during a time period for which the employee was being paid; - whether the injury was caused by some activity of the employer or of a fellow employer. Mr. Colborne submitted that the Plaintiff's situation did not fall within any of the criteria outlined. Obviously the accident did not occur on the premises of the employer because it occurred on the highway. In his submission, any benefit accrued to both the Plaintiff and his

10 7 employer/brother. By driving the plaintiff to the work project in Nipigon, the employer assured himself of a helper for a project which required two persons. The Plaintiff could enjoy his brother's company and also save the expense of getting to Nipigon by public transportation. Counsel submitted that the Plaintiff was not required to drive with his brother; he had the option of using some other mode of transport. Counsel also submitted that the equipment (i.e., the van) provided both a personal convenience and business function to the employer. Counsel conceded that the Plaintiff received more than his normal hourly rate for the weekend project; however, he submitted that the Panel should not consider that a travel expense allowance had been factored into the proposed payment. While, in some cases, it may be appropriate to factor in a travel allowance amount, in the case before the Panel, he submitted that the Plaintiff was not aware of the actual financial arrangement. He suggested that the arrangement was purely subjective and contemplated mainly from the employer's perspective. Where two individuals have not negotiated a firm agreement on payment and travel arrangements, that should not be considered an agreement for employment purposes. Counsel also noted that the risk involved in the activity was essentially that of the general driving public and was not a risk associated with carpet installers. He indicated that the accident occurred prior to 8:00 a.m. which was the normal starting time for the worker. Furthermore, the Plaintiff's injuries were not caused by his employer; he argued that the injuries were essentially caused by the negligence of a third party. Counsel submitted that this case was not equivalent to a situation where a worker was being transported to a remote campsite. In his submission, Nipigon was not remote and there were a number of modes of transport which could have enabled the worker to reach the work site on that weekend. Counsel also referred to WCAT Decision No. 908/89 as authority for the proposition that the Panel should consider the worker's opinion as to whether or not he was in the course of his employment. In his submission, the Plaintiff did not consider that he was in the course of his employment and this should be taken into account in the Panel's decision. (vii) Conclusions We agree with the submission of counsel for the Plaintiff that a worker is not normally in the course of employment when travelling to and from work. We also agree that travelling a longer distance than usual does not automatically bring a worker within the course of employment. The best a panel can do is weigh all of the employment factors and non-employment factors in attempting to reach a conclusion, on a balance of probabilities, as to whether the activity was primarily employment-related and thus establishes a sufficiently significant connection with work to bring a person within the scope of the Act. In attempting to reach a conclusion, panels may find the criteria enumerated by counsel for the Plaintiff to be a useful check list or guideline. No one factor by itself will be determinative of the issue; however, collectively they may help to paint a picture of an activity which is primarily work-related or non-work-related. In the case before this Panel, the family relationship should not be allowed to obscure the fact that Jose was the employer of Carlos Felix.

11 8 The trip to Nipigon was not a family outing; it was a trip to perform work associated with the business carried on by Jose. We agree with counsel for the Plaintiff that travel in the van was an activity which benefited both the employer and the worker. It ensured that Jose would have the two persons on site required to complete the flooring project in Nipigon. It also saved Carlos the cost of bus fare to Nipigon. Since he did not have a driver's licence at the time, that was the only other realistic method of travel. We also agree with counsel for the Plaintiff that the employer did not instruct the Plaintiff to travel in the van. Certainly, Carlos had the option of travelling to Nipigon by some other method. However, it is also obvious from the evidence that travelling in the van was the most practical way of reaching the work site and Carlos did not give any consideration to travelling by some other method. Travel to and from Nipigon in the van was simply a given. It was assumed by both Jose and Carlos. We find that, while in the van, the Plaintiff was under the control and supervision of Jose. The Plaintiff was picked up at his home, he went where his employer drove him; he stopped when his employer stopped for breakfast or coffee; and he would have stayed over in Nipigon had his employer so decided. It follows that there was an element of supervision or control during the entire trip to Nipigon. We also find that the van should be characterized as a company vehicle at the time of the accident. Jose testified that it was the only vehicle which he owned for use in his business. At the time of the accident, it was carrying equipment and materials intended for use in the floor covering business and, in particular, for use at the work site in Nipigon. While the vehicle undoubtedly was also used from time to time for the personal convenience of Jose, that was not the actual use at the time of the accident in question. As stated earlier, this was not a family outing for social purposes; it was a trip with a strong work purpose. The evidence establishes that the Plaintiff did not receive a specific travel allowance or payment for travel time per se. However, the evidence also establishes that the Nipigon project was a special weekend task which would attract special remuneration arrangements. The project involved a substantial premium over the Plaintiff's normal hourly rate. Evidence indicates that the Plaintiff was to be paid between $ and $ for assisting in the installation of floor covering at the home in Nipigon. His normal hourly rate was approximately $6.00 per hour. In our view, the extraordinary premium over the worker's normal hourly rate justifies a conclusion that some portion of the payment was intended as compensation for the unusually long trip to and from the work site. The employer testified that when any such special payments were made to the worker, Jose simply extrapolated from the lump sum and entered the appropriate number of hours on the time sheet reflecting the sum paid to the Plaintiff. For example, if the Plaintiff were paid $ for a special job (when his normal hourly rate was $6.00), this would be reflected in the employer's records as 50 hours of work by the Plaintiff. In our view, the risk to which the Plaintiff was exposed at the time of the accident was the normal risk of the driving public. It was not a risk

12 9 that one normally associates with the installation of floor covering. Counsel for the Plaintiff submitted that the Plaintiff's injury was not specifically "caused" by the activity of his employer because his employer had the van under control and was travelling in the proper lane when it was struck by another vehicle. We agree with that submission. However, in our view, the criterion described (i.e., "whether the injury was caused by some activity of the employer or of a fellow employer") is too narrow. In our opinion, it could be worded as follows: "whether the injury involved some activity by the employer or a fellow employer". It is the existence of the work-related activity which is important and not the degree of negligence or fault involved in the activity. The Panel's investigation should focus on the prevailing character of the activity and not tortious conduct. Each counsel emphasized different aspects of the activity. This is not surprising since most applications of this type usually involve both personal and work-related factors. In the case before us, we conclude that the prevailing character of the travel to Nipigon is work-related. The Plaintiff was travelling from Thunder Bay to a work site in Nipigon in his employer's van. At the time of the accident, the van was being used for business purposes and not for the personal convenience of the employer. While travelling in the van, the Plaintiff was under the supervision and control of his employer. The fact that the employer was the Plaintiff's brother should not diminish the significance of the employer/worker relationship which existed for purposes of the project in Nipigon. While the worker was not specifically paid for travel time or given a travel allowance, the significant premium reflected in the proposed lump sum payment for the project (i.e., a premium over his hourly rate) justifies a conclusion that some element of that premium was attributable to the time associated with travel to the distant work site. The van was being used to transport tools to be used at the work site. The accident occurred at a time when the driving activity of the employer was a factor. While the employer may not have been negligent and thus did not "cause" the accident or injury, the employer was involved in an activity associated with the accident and resulting injury. It is true that the risk to which the worker was exposed at the time of the accident was essentially the risk of the general driving public and the accident took place before the normal starting time of 8:00 a.m. It is also true that there is an element of social contact in the activity because the employer and worker were brothers. However, when we weigh the personal factors against the employment factors, we conclude that the worker's activity at the time of the accident was primarily work-related. It follows that we find the worker was in the course of his employment at the time of the accident. It also follows that section 16 of the Act takes away the Plaintiff's right to sue his employer/brother. Therefore, we find that the right of Carlos Felix to sue Jose Felix is taken away by the provisions of the Act. The evidence establishes that the Defendant, Earl Purdy, was in the course of his employment at the time of the accident. Earl Purdy was the worker of a Schedule 1 employer, Clint Brocklebank. Since both the Plaintiff, Carlos Felix, and the Defendant, Earl Purdy were in the course of employment at the time of the happening of the injury, the Plaintiff's right to sue Earl Purdy is taken away by subsection 10(9) of the Act.

13 10 (viii) Subsection 10(11) Subsection 10(11) of the Act provides: 10(11) In any action brought by a worker of an employer in Schedule 1 or dependant of such worker in any case within subsection (1) or maintained by the Board under subsection (4) and one or more of the persons found to be at fault or negligent is the employer of the worker in Schedule 1 or an executive officer or director thereof, or any other employer in Schedule 1, or an executive officer or director thereof, or any worker of any employer in Schedule 1, no damages, contribution or indemnity are recoverable for the portion of the loss or damage caused by the fault or negligence of such employer of the worker in Schedule 1 or an executive officer or director thereof, or of any other employer in Schedule 1 or executive officer or director thereof, or of any worker of any employer in Schedule 1, and the portion of the loss or damage so caused by the fault or negligence of such employer of the worker in Schedule 1 or an executive officer or director thereof, or of any other employer in Schedule 1 or an executive officer or director thereof, or of the worker of any employer in Schedule 1, shall be determined although such employer or executive officer or director or worker is not a party to the action. Subsection 10(11) is designed to protect defendants from liability for damages in a civil action where those defendants would not otherwise be held accountable for such damages. To the extent that co-defendants can avail themselves of the protection of the Workers' Compensation Act, the portion of damages which those co-defendants would normally bear responsibility for, should not be collected from the remaining defendants who cannot avail themselves of the protection of the Act. Those unprotected defendants are entitled to equitable treatment and subsection 10(11) is intended to provide such equitable treatment in the civil action. We find that the remaining defendants in this action are entitled to a declaration under subsection 10(11) of the Act that they will not be liable for any damages, contribution or indemnity which would otherwise be recoverable for the portion of the loss or damages caused by the fault or negligence of Earl Purdy or any defendant against whom the Plaintiff's claim may be barred. THE DECISION The application is allowed. The Plaintiff's right to sue Earl Purdy and Jose Felix is taken away by the provisions of the Act. The remaining Defendants are entitled to a declaration pursuant to subsection 10(11) of the Act that they will not be liable for any damages, contribution or indemnity which would otherwise be recoverable for the portion

14 11 of the loss or damages caused by the fault or negligence of Earl Purdy or Jose Felix. DATED at Toronto, this 8th day of December, SIGNED: I.J. Strachan, K.W. Preston, M. Robillard.