Dryburgh v. Oak Bay Marina (1992) Ltd., 2001 FCT 671

Date: 20010618

Docket: T-841-97

Neutral Citation: 2001 FCT 671

BETWEEN:

JIM DRYBURGH, PETE ENGSTAD, SIDNEY MALLON, ARTHUR MOUNTAIN, MORRIS HANKEY, PETER ADAMS, THE ESTATE OF BRUCE AIKMAN, WILLIAM CAIRNS, JIM HOPKINS, DAVID HOLMES, KEN JOYCE, JIM PROVAN, WILLIAM LENIHAN, WARREN HONG, J. BRIDLE, JOHN CELONA, M. COLDREN, BERNIE DAHL, MURRAY FALLEN, PAUL FLETCHER and RALPH JONES

                                                                                        PLAINTIFFS

AND:

OAK BAY MARINA (1992) LTD., OAK BAY MARINA LTD., ROBERT WRIGHT, THE CORPORATION OF THE DISTRICT OF OAK BAY, NEWPORT YACHT SALES (1996) LTD. and NEWPORT YACHT CHARTERS LTD.

                                                                                    DEFENDANTS

                                  REASONS FOR ORDER

NADON J.

[1]    This is an appeal from a decision^[1] of Prothonotary John Hargrave, dated August 17, 2000, pursuant to which he dismissed a motion for summary judgment brought by the plaintiff Jim Dryburgh.

[2]    The motion for summary judgment was brought on to serve as a test case on a question of law, namely, to determine whether an exculpatory clause in a mooring contract exempts the defendants Oak Bay Marina Ltd. ("Oak Bay") and Robert Wright from liability.

[3]    The facts giving rise to these proceedings are fairly simple and are as follows. The plaintiff is the owner of the yacht Three Martletts (the "yacht"). On October 17, 1996, while moored at a marina located at Oak Bay, near Victoria, British Columbia (the "marina"), the yacht and those of the other plaintiffs were damaged when the dock broke loose and drifted aground.

[4]    As a result, the plaintiff, as owner of the yacht, commenced proceedings in this Court, claiming damages against the defendants by reason of their negligence, breach of contract and breach of duty as bailees for reward. Specifically, the plaintiff alleges, inter alia, that the dock broke loose because of poor design, construction, maintenance and supervision.

[5]                The defendant Oak Bay is the operator of the marina, where the yacht was moored on October 17, 1996. The defendant Robert Wright is an employee of Oak Bay and its President. At the relevant time, there was in existence a moorage contract, dated March 31, 1996, between Oak Bay and the plaintiff, in respect of which the plaintiff admits, for the purpose of the motion for summary judgment, that he is bound by the terms thereof. The exculpatory clause at issue in these proceedings, found in the "Oak Bay Marine Group Annual Moorage License and Invoice", reads as follows:

EXCLUSIONS ON LIABILITY

All vessels, boathouse and ancillary equipment of the Owner stored or moored on the Company's premises shall be solely at the Owner's risk, and the Company shall not be responsible under any circumstances for any loss or damage caused thereto whether caused by the negligence of the Company, its servants or agents, or the acts of third parties, or otherwise. All vehicles parked on the Company's premises and the contents therein are left at the Owner's risk. All persons using the Company's facilities, floats and ramps do so at their own risk and the Company assumes no responsibility whatsoever for the personal injury in the Owner or his invitees occurring within the Company's premises for any cause whatsoever.

[6]                The face of the moorage contract refers to the Oak Bay Marine Group. Along the top of the document are the names of three entities, Oak Bay Marina Ltd., North Saanich Ltd. and Pedder Bay Marina. There is a typewritten "X" in the box in front of Oak Bay Marina Ltd. Mr. Dryburgh, the plaintiff, does not dispute that the moorage space provided to him was provided by the defendant Oak Bay.

[7]                Thus, the issue before Prothonotary Hargrave, and before me in this appeal, is whether the exclusion clause exempts the defendant Oak Bay from liability to the plaintiff and, if so, does the exemption extend to Mr. Wright. The Prothonotary answered both questions in the affirmative. At page 218 of his Reasons, the Prothonotary concluded as follows:

38.           In the present instance, the exculpatory clause in the mooring agreement covers Oak Bay Marina Ltd. It also covers Mr. Robert Wright, an officer and hands on owner of the company, who performed, in part, the work and services and designed and built the structures which the parties intended be provided under the moorage agreement. Thus, the motion for summary judgment is dismissed, with one set of costs in favour of Oak Bay Marina Ltd. and Robert Wright.

[8]                As Prothonotary Hargrave notes in his Reasons, the allegations of negligence in the Statement of Claim include: constructing the dock with inadequate pilings and anchors; failing to drive the pilings deeply enough; failing to correct weakened piling installations when it became apparent the pilings were moving during normal conditions; and designing and equipping the dock in such a manner that when the wind blew, the piling moved and deteriorated. I should also point out that Mr. Wright, in his Affidavit dated April 14, 1999, states that he had the full and final say in the redesign and reconstruction of the Oak Bay Marina in 1994 and 1995, and that none of his employees exercised any decision in that regard. Mr. Wright chose the size, number and location of the pilings, taking into account the depth of the overburden into which the piling might be driven.

[9]                In seeking an order that the prothonotary's decision be reversed and that a declaration be made that the defendants, Oak Bay and Robert Wright, are not entitled to rely on the defence that their liability is excluded by the terms of the moorage contract, the plaintiff puts forward the following grounds:

1.         The learned prothonotary erred in holding that the exculpatory clause in the form of moorage contract was valid and enforceable against the said plaintiff;

2.         the learned prothonotary erred in holding that the exculpatory clause in the form of moorage contract was not ambiguous;

3.         the learned prothonotary erred in holding that the exculpatory clause in the form of moorage contract extended to the defendant Robert Wright and exempted him from liability towards the plaintiff;

4.         The learned prothonotary erred in taking into account the subjective intent of the parties when deciding the effect of the exculpatory clause;

5.         The learned prothonotary erred in failing to construe the form of moorage contract as a whole, and the exculpatory clause in particular, in light of the doctrine of contra proferentem;

6.         The learned prothonotary erred in holding that the exculpatory clause in the form of moorage contract applied to the particular causes of action by the said plaintiff;

7.         The learned prothonotary erred, and breached the principle of audi alteram partem, in failing to give counsel for the plaintiff Dryburgh an opportunity to make submissions about the effects of the decision of the British Columbia Court of Appeal in Laing Property Corporation v. All Seasons Display Inc.^[2]

[10]            I begin my analysis with the plaintiff's submission that the prothonotary erred in concluding that the exculpatory clause was not ambiguous. Prothonotary Hargrave concluded, without any hesitation, that the moorage contract was one between Mr. Dryburgh and Oak Bay. I, like Prothonotary Hargrave, have also no hesitation in reaching that conclusion. Mr. Dryburgh testified that he was getting moorage space from Oak Bay, and not from North Saanich Ltd. or Pedder Bay Marina. Consequently, the term "Company" found in the exclusion clause can only mean the defendant Oak Bay.

[11]            The prothonotary also concluded that the exclusion clause was a clearly written and reasonably visible provision. He further held that the clause was not unconscionable and that it would not be unfair or unreasonable to enforce it. Again, I can only state my agreement with the learned prothonotary. A reading of the clause makes it clear that it purports to exclude Oak Bay's responsibility, under any circumstances, for any loss or damage caused to vessels moored at the marina, and this whether the loss or damage results from Oak Bay's negligence, its servants or agents, or the acts of third parties, or otherwise. In addition, the clause clearly provides that the vessels are moored at the marina solely at the owner's risk. That, in my view, does not leave room for uncertainty as to the meaning and significance of the clause. Anyone reading the clause would certainly, if acting reasonably, take out proper insurance to cover the losses which the clause purports to exclude. I do not think that it can seriously be argued that the clause at issue is ambiguous or uncertain as to its meaning. This does not dispose of the sixth ground put forward by the plaintiff, to the effect that the exculpatory clause does not apply to the particular causes of action alleged by the plaintiff. I now turn to that issue.

[12]            On this issue, the plaintiff submits that the acts of negligence alleged at paragraphs 16(a) through (e) of the Amended Statement of Claim, do not fall within the ambit of the exclusion clause. Paragraphs 16 (a) to (e) reads as follows:

16.           Particulars of the negligence of the Defendants now known to the Plaintiffs include the following:

(a)            constructing the dock with inadequate pilings and anchors, so it was unstable and of insufficient strength to prevent movement and failure during reasonably foreseeable conditions;

(b)           failing to drive the pilings into the ground deep enough, or into sufficiently strong surrounding material, to hold them firmly in place;

(c)            failing to correct weakened piling installations when it was apparent that the pilings were moving during normal conditions;

(d)           assigning mooring spaces to numerous large vessels on single docks, so that, under foreseeable wind conditions, excessive strain was put on the pilings and floats;

(e)            designing and equipping the docks in such a manner that when the wind blew they moved and deteriorated;

[13]            The plaintiff submits that the exclusion clause was only intended to apply to contractual services rendered from year to year in the operation and supervision of the marina, and that nothing in the exclusion clause addresses acts or omissions which occurred before the agreement was entered into. The plaintiff submits that negligence in the design of the marina, which took place in 1994 and 1995, is not covered by the exclusion clause. In my view, this argument must fail.

[14]            Prothonotary Hargrave found that the moorage contract was a contract for the provision of suitable moorage space for vessels. On the evidence before him, I cannot but agree with his finding. Consequently, the plaintiff's submission on this point must be examined in the light of that contract. Put into perspective, the plaintiff's submission is that the exclusion clause, on a true construction, only covers negligence arising with respect to the day-to-day provision of suitable premises. Thus, the plaintiff argues that if the negligence results from the particulars of negligence set forth in paragraphs 16 (a) to (e) of the Amended Statement of Claim, the exclusion clause does not apply because these acts or omissions occurred prior to March 31, 1996, when the agreement was entered into for the year commencing April 1, 1996. At paragraphs 37 through 40 of his Memorandum of Fact and Law, Mr. Schmitt, counsel for the plaintiff, puts his submission in the following terms:

37.           The purpose of the Marina renovations was to improve the Marina business. They were not done at the request of, or to provide a service to, the boatowners.

38.           The contract in question was in relation to moorage for a definite term, specifically, April 1, 1996 to March 31, 1997. It is submitted that the only reasonable interpretation of the Exclusion Clause in the Dryburgh contract (leaving aside for the moment the issue of uncertainty) is that it was intended to apply to the contractual services provided during that term, i.e. to the operation and supervision of the marina within that period of time. The reference in the last sentence of the Exclusion Clause to the "Company" assuming no responsibility "from any cause whatsoever" relates only to "personal injury to the Owner or his invitees" and does not relate to the losses with which this action is concerned. There is nothing in the language of the Clause, nor the rest of the agreement, that addresses acts or omissions by anyone in the past. In particular, there is nothing that addresses the tortious duty of care of those responsible for design and construction of structures towards future occupants and users, a duty that was recognized in the Winnipeg Condominium case, supra.

39.           The particular cause of action alleged by the Plaintiffs in paragraphs 12 and 16(a), (b), (c), and (e) of the Amended Statement of Claim, namely negligence in the design and installation of the marina expansion in 1994, is outside the scope of the contract and therefore not governed by the Exclusion Clause. The same cause of action would exist between the same parties apart from the contract even if Mr. Dryburgh's boat had not been moored at the marina, but had been in the vicinity and was struck by the defendants' disintegrating docks.

40.           The Court should therefore hold that the Exclusion Clause does not protect the Contract Defendants in the circumstances of this case.

Unfortunately for the plaintiff, I cannot subscribe to these arguments.

[15]            After considering the plaintiff's arguments and after a discussion of the Supreme Court of Canada's decision in Winnipeg Condominium Corporation v. Bird Construction Company, [1995] 1 S.C.R. 85, the prothonotary then turned to general principles of construction of exculpatory clauses and in particular, he referred to the decision of the House of Lords in Photo Production Ltd. v. Securicor Transport Ltd., [1980] A.C. 827, where the House of Lords held that a court, when faced with an exclusion clause expressed in clear and unambiguous terms, should not place upon the language of the clause a strained and artificial meaning so as to avoid the exclusion of liability contained in it. The prothonotary then stated, on the authority of the Supreme Court of Canada's decisions in Pense v. Northern Light Assurance Co., [1910] 42 S.C.R. 246, and Consolidated-Bathurst Export Ltd. v. Mutual Boiler & Machinery Insurance Co. (1981), 112 D.L.R. (3d) 49, that the doctrine of contra proferentem should not be resorted to unless there was an ambiguity in the language of the exclusion clause. He then concluded that part of his Reasons by stating the following, at page 209:

In effect, I should, looking at the whole of the moorage agreement, determine an interpretation consistent with the true intention of the parties, an interpretation which results in a sensible commercial result.

[16]            In the light of the authorities, it would be difficult, if not impossible, to disagree with the above remarks of the prothonotary. The prothonotary then went on to conclude that the exclusion clause afforded full protection from liability to the defendant Oak Bay for the negligence and breaches of duty and contract set out in the Statement of Claim. I agree entirely with his conclusion and, in agreeing with him, I can do no better than quote in full paragraph 23 of his Reasons:

23.           From the point of view of Oak Bay Marina Ltd. it is clear, looking at the per-foot per-month rate and the resulting yearly moorage figure set out on the face of the contract, that they did not, for that rate, consider themselves to be insurers. There is also the plain wording of the exculpatory clause. The word "any", modifying "loss or damage" in the exculpatory clause should be reasonably interpreted. To circumscribe the term, preventing its application to events falling out outside the moorage contract year, is an artificial constraint.    It would distort the agreement, producing an unrealistic result to interpret the exculpatory provision to cover only events during the day to day operation of the Marina during the contract year to exclude past negligence in the construction of the Marina, construction and moorage of the floats and berths, and placement and driving of piling. To hold that the exculpatory clause is bounded by some time constraint, to cut off past neglect in a duty owed to Mr. Dryburgh as a later occupier, would be to distort the four corners rule and bring about an unrealistic result, a result not contemplated in the commercial atmosphere between Oak Bay Marina Ltd. and Mr. Dryburgh. The exculpatory clause protects Oak Bay Marina Ltd. from liability for the negligence and breaches of duty and contract set out in the Statement of Claim. The more difficult issue is whether the exculpatory clause extends to protect Robert Wright, a point to which I now turn.

[17]            The above also disposes of the plaintiff's fifth ground, to the effect that the prothonotary erred in failing to construe the exculpatory clause in light of the doctrine of contra proferentem.

[18]            I now turn to the plaintiff's third ground, whereby he submits that the prothonotary erred in concluding that the exculpatory clause covered the defendant Robert Wright and exempted him from liability towards the plaintiff. As the learned prothonotary states in his Reasons, this is the more difficult issue.

[19]            Although he concluded that the exceptions to the doctrine of privity of contract, based on trust and agency, were not available to Mr. Wright in the circumstances of the case, the prothonotary concluded in his favour on the basis of the exception to the doctrine enunciated by the Supreme Court of Canada in London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299.

[20]            It is not disputed that Mr. Wright is not a party to the moorage contract and that unless he can invoke one of the exceptions to the doctrine, he cannot be exempted from liability by reason of the exclusion clause. The issue, therefore, is whether the learned prothonotary was correct in holding that the exception to the doctrine of privity of contract, as enunciated by the Supreme Court in London Drug, supra, was available to Mr. Wright.

[21]            I should point out that the defendants do not challenge the prothonotary's conclusion that the exceptions to the doctrine, based on trust and agency, are not available to Mr. Wright.

[22]            In London Drugs, supra, Iacobucci J., who wrote the Reasons for the majority of the Supreme Court, held that for employees to benefit from a limitation of liability clause found in a contract between their employer and a customer, two requirements had to be met, namely:

1.         the limitation of liability clause (or, in this case, the exclusion of liability clause) must, either expressly or impliedly, extend its benefits to the employees seeking to rely on it; and

2.         the employees seeking the benefit of the limitation of liability clause must have been acting in the course of their employment and must have been performing the very services provided for in the contract between their employer and the customer when the loss occurred.

[23]            At pages 448, 449 and 450, Iacobucci J. makes the following remarks:

Although these requirements, if satisfied, permit a departure from the strict application of the doctrine of privity of contract, they represent an incremental change to the common law. I say "incremental change" for a number of reasons.

First and foremost, this new exception to privity is dependent on the intention of the contracting parties. An employer and his or her customer may choose the appropriate language when drafting their contracts so as to extend, expressly or impliedly, the benefit of any limitation of liability to employees. It is their intention as stipulated in the contract which will determine whether the first requirement is met. In this connection, I agree with the view that the intention to extend the benefit of a limitation of liability clause to employees may be express or implied in all the circumstances.

                                                                     [...]

Third, it must be remembered that I am proposing a very specific and limited exception to privity in the case at bar; viz, permitting employees who qualify as third party beneficiaries to use their employer's limitation of liability clauses as "shields" in actions brought against them, when the damage they have caused was done in the course of their employment and while they were carrying out the very services for which the plaintiff (customer) had contracted with their employer. In sum, I am recognizing a limited just tertii.

[24]            With respect to the first requirement, as the exclusion clause does not expressly extend its benefits to the employees, the question for determination is whether the clause impliedly extends its benefits to Mr. Wright.

[25]            In London Drugs, supra, the limitation of liability clause read as follows:

Liability– Sec. 11(a) The responsibility of a warehouseman in the absence of written provisions is the reasonable care and diligence required by the law.

(b) The warehouseman's liability on any one package is limited to $40 unless the holder has declared in writing a valuation in excess of $40 and paid the additional charge specified to cover warehouse liability.

[26]            Iacobucci J. concluded that the clause impliedly extended the benefits of the clause to the employees of Kuehne & Nagel. At pages 451 and 452, Iacobucci J. stated that:

It is clear that the parties did not choose express language in order to extend the benefit of the clause to employees. For example, there is no mention of words such as "servants" or "employees" in s. 11(b) of the contract. As such, it cannot be said that the respondents are express third party beneficiaries with respect to the limitation of liability clause. However, this does not preclude a finding that they are implied third party beneficiaries. In view of the identity of interest between an employer and his or her employees with respect to the performance of the former's contractual obligations and the policy considerations discussed above, it is surely open to a court, in appropriate circumstances, to conclude that a limitation of liability clause in a commercial contract between an employer and his or her customer impliedly extends its benefit to employees.

In the case at bar, the parties have not chosen language which inevitably leads to the conclusion that the respondents were not to benefit from s. 11(b) of the contract of storage. The term "warehouseman" as used in s. 11(b) is not defined in the contract and the definition provided in the Warehouse Receipt Act, s. 1, is of no use in determining whether it includes employees for the purpose of the contractual limitation of liability. While it is true that s. 10(e) of the contract uses the term "warehouse employee," this by itself does not preclude an interpretation of "warehouseman in s. 11(b) of the same contract as implicitly including employees for the purposes of the limitation of liability clause. Such a conclusion does not offend the words chosen by the parties.

When all the circumstances of this case are taken into account, including the nature of the relationship between employees and their employer, the identity of interest with respect to contractual obligations, the fact that the appellant knew that employees would be involved in performing the contractual obligations, and the absence of a clear indication in the contract to the contrary, the term "warehouseman" in s. 11(b) of the contract must be interpreted as meaning "warehousemen". As such, the respondents are complete strangers to the limitation of liability clause. Rather, they are unexpressed or implicit third party beneficiaries with respect to this clause. Accordingly, the first requirement of this new exception to the doctrine of privity is also met. [Emphasis added]

[27]            Recently, in Fraser River Pile & Dredge ltd. v. Can-Dive Services Ltd., [1999] 2 S.C.R. 108, the Supreme Court had occasion to consider whether the exception enunciated in London Drugs, supra, was applicable. At pages 123, 124 and 125, Iacobucci J., writing for the Court, summarized as follows the principle set forth in London Drugs, supra:

25.           At issue was the status of a limitation of liability clause in the standard form contract between the appellant and the respondent for storage of the appellant's transformer. The clause limited a "warehouseman's" liability on any one package to $40. While in storage, a transformer was damaged owing to negligence on the part of the respondent's employees. The appellant sued both the warehouse company and its employees, and the trial judge found the employees personally liable for the full amount of the damages. On appeal, the majority allowed the employees to rely on the limitation of liability clause in the employer's contract with the appellant, notwithstanding that the employees were not parties to this contract. The majority of the Court upheld the result on appeal, concluding that in circumstances where the traditional exceptions to privity of contract such as agency or trust do not apply, courts may nonetheless undertake the appropriate analysis, bounded by both common sense and commercial reality, in order to determine whether the doctrine of privity with respect to third-party beneficiaries should be relaxed in the given circumstances. [Emphasis added]

[...]

27.           The respondent employees in London Drugs were unable to rely on existing principles of trust or agency. Rather than adapting these established principles to accommodate yet another ad hoc exception to the doctrine of privity, it was decided to adopt a more direct approach as a matter of principle. The Court held that, in circumstances where the traditional exceptions do not apply, the relevant function inquiry is whether the doctrine should be relaxed in the given circumstances.

28.           In order to distinguish mere strangers to a contract from those in the position of third party beneficiaries, the Court first established a threshold requirement whereby the parties to the contract must have intended the relevant provision to confer a benefit on the third party. In other words, an employer and its customer may agree to extend, either expressly or by implication, the benefit of any limitation of liability clause to the employees. In the circumstances of London Drugs, the customer had full knowledge that the storage services contemplated by the contract would be provided not only by the employer, but by the employees as well. In the absence of any clear indication to the contrary, the Court held that the necessary intention to include coverage for the employees was implied in the terms of the agreement. The employees, therefore, as third-party beneficiaries, could seek to rely on the limitation clause to avoid liability for the loss to the customer's property.

29.           The Court further held, however, that the intention to extend the benefit of a contractual provision to the action of a third-party beneficiary was irrelevant unless the actions in question came within the scope of agreement between the initial parties. Accordingly, the second aspect of the function inquiry was whether the employees were acting in the course of their employment when the loss occurred, and whether in so acting they were performing the very services specified in the contract between their employer and its customer. Based on uncontested findings of fact, it was clear that the damage to the customer's transformer occurred when the employees were acting in the course of their employment to provide the very storage services specified in the contract.

30.           Taking all of these circumstances into account, the Court interpreted the term "warehouseman" in the limitation of liability clause to include coverage for the employees, thereby absolving them of any liability in excess of $40 for the loss that occurred. The Court concluded that the departure from the traditional doctrine of privity was well within its jurisdiction representing, as it did, an incremental change to the common law rather than a wholesale abdication of existing principles. Given that the exception was dependent on the intention stipulated in the contract, relaxing the doctrine of privity in the given circumstances did not frustrate the expectations of the parties.

[28]            If I accept, as I must, the full implications of the principle set forth in London Drugs, supra, and reiterated in Fraser River Pile, supra, I cannot but conclude that the learned prothonotary reached the right conclusion in holding that the first requirement of London Drugs, supra, was met in the present case.

[29]            I must confess that I share the misgivings expressed by McLachlin J. (as she then was) in London Drugs, supra, with respect to Iacobucci J.'s Reasons. At page 456, McLachlin J. makes the following remarks:

The first problem in Iacobucci J.'s approach is whether the defendants, who were not parties to the contract, can rely on the contract at all. In the past, the doctrine of privity of contract has said no. Iacobucci J. says this should no longer be a bar; I agree.

But there is a second problem. This arises from the fact that the contract term, even if it can be raised as a defence by the employees, does not by its content provide the employees with a defence. The contract exempts only the "warehouseman." The term "warehouseman" is not defined in the contract. But in my respectful view, upon a reading of the contract as a whole, the only reasonable interpretation is that the term "warehouseman" refers to the employer and does not include the employees.

[30]            I agree with McLachlin J.'s view that the term "warehouseman" in London Drugs, supra, did not include the employees. Similarly, in the present matter, it is far from obvious to me that the term "Company" includes Oak Bay's employees. However, in view of the Reasons of the majority in London Drugs, supra, I do not believe that that view is open to me. Put another way, if the term "warehouseman" includes employees, I can only conclude herein that the term "Company" must include the employees. What Iacobucci J. stated in London Drugs, supra, and reiterated in Fraser River, supra, is that unless there is a clear intention not to cover the employees, the Court should imply that they are covered by the limitation or exclusion clause. Considering the evidence and the wording of the clause, I cannot conclude that there was any indication that the parties intended to exclude the employees from the benefits of the exclusion clause. Consequently, I must, with regret, conclude that the plaintiff fails with regard to the first requirement of London Drugs, supra.

[31]            I now turn to the second requirement. On this point, as I have already indicated, the prothonotary also concluded in favour of Mr. Wright. He stated that the contract between the parties was for the provision of moorage, pursuant to which Mr. Dryburgh could use a designated berth or boathouse. However, in the learned prothonotary's view, there was more than that to the contract. He found that the plaintiff expected berths that were properly and safely built and maintained, so as to enable them to withstand all reasonably foreseeable weather and sea conditions. It is in that light, according to the learned prothonotary, that Mr. Wright's work in redesigning and reconstructing the marina must be considered. At page 216 and 217 of his Reasons, the prothonotary explains his conclusion on that point in the following terms:

35.           Turning to the second requirement that an employee seeking the benefit of the contract must have acted in the course of his or her employment and must have performed the very services provided for in the contract, the facts here establish that to be the case in instance of Robert Wright. Mr. Dryburgh did not look to the employees to be responsible for the Three Martletts and indeed the moorage contract makes it clear that such is the duty of the vessel owner. The contract was for the provision of moorage, in effect a license to use a designated berth or boathouse. However, both parties were in agreement that there was more to what Mr. Dryburgh expected to receive and Oak Bay Marina Ltd. expected to provide. As I have pointed out, Mr. Dryburgh expected berths that were properly and safely built and maintained, to meet prevailing Canadian safety standards, such that they would withstand all reasonably foreseeable weather and sea conditions. Mr. Robert Wright had been directly involved in the building of the Marina as it presently stands. His evidence is that, on redesigning the Marina, he wanted to build a high-quality marina, a product which would be bought (discovery page 75) and that he had the full and final say in the reconstruction, including where are [sic] the pilings would go, with no other employees exercising any decision making in that regard (paragraph 8 of 14 April 1999 Affidavit). This work by Robert Wright, going toward the properly and safely built Marina is, as I say, part of what Mr. Dryburgh contracted for. As Mr. Justice of Appeal Finch pointed out in Laing Property the negligent conduct alleged need not comprise all of the services contracted for.

[32]            Notwithstanding Mr. Schmitt's forceful arguments, he has not persuaded me that I should take a position different than that taken by the prothonotary. In my view, the prothonotary came to the right conclusion with regard to the second requirement of London Drugs, supra.

[33]            The sixth ground raised by the plaintiff is that the prothonotary failed to give him an opportunity to make submissions concerning the effects of the British Columbia Court of Appeal's decision in Orange Julius, supra. Since the plaintiff was able to argue that point fully before me, I need not address this ground, based on the principle of audi alteram partem.

[34]            For these reasons, the plaintiff's appeal will be dismissed, with one set of costs in favour of Oak Bay and Robert Wright.

                                                                                        Marc Nadon

                                                                                                JUDGE

O T T A W A, Ontario

June 18, 2001