IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131007

Docket: 10-3663

Registry:
Victoria

Between:

Roland Garcia
Galapia and Roland Garcia Galapia, as personal representative of the Estate of
Robella Galapia, and Roland Galapia Jr. by his litigation guardian, Roland
Garcia Galapia

Plaintiffs

And

Northern Healh
Authority doing business as Dawson Creek and District Hospital and Dr. Andre
Goetze and Dr. James Aubrey Hargreaves and Carrie Steinlechner and Shimmy
Matthew and Velvet Musfelt and Solutions Staffing Inc. and Nurses Doe #2 and #5

Defendants

And

Northern Healh
Authority doing business as Dawson Creek and District Hospital and Dr. Andre
Goetze and Dr. James Aubrey Hargreaves and Carrie Steinlechner and Shimmy
Matthew

Third
Parties

Before:
The Honourable Mr. Justice Crawford

Reasons for Judgment

[1]            
A catastrophic post-surgical accident occurred on January 20, 2009 and
resulted in a patient dying on January 29, 2009 at the Dawson Creek and
District Hospital. This unfortunate accident led to a Special Case regarding
vicarious liability and indemnity being put before me by two of the defendants,
Solutions Staffing Inc. and the Northern Health Authority doing business as
Dawson Creek and District Hospital. (I will call each of the parties
respectively Solutions Staffing and the NHA).

[2]            
One of the nurses, Velvet Musfelt, who was on duty January 20, 2009 was
provided to the hospital by Solutions Staffing, a company that provides medical
personnel, including nurses, to health authorities. The three issues between
the two defendants are:

1.     Is the NHA
vicariously liable for the acts and omissions of Nurse Musfelt while Nurse
Musfelt was on assignment to the hospital?

2.     Is
Solutions Staffing vicariously liable for the acts and omissions of Nurse
Musfelt while Nurse Musfelt was on assignment to the hospital?

3.     Is
Solutions Staffing required to indemnify the NHA for the acts and omissions of
Nurse Musfelt while Nurse Musfelt was on assignment to the hospital pursuant to
clause 10.5 of the staffing contract?

Background

[3]            
The staffing contract between the parties is dated September 1, 2008. It
provides that Solutions Staffing will use its best efforts to provide the NHA
qualified, experienced and competent health care professionals.

[4]            
NHA is to notify Solutions Staffing from time-to-time when a temporary
professional is provided for an assignment and to specify the experience and
qualifications they require of the professional. On each hiring, NHA is to
provide Solutions Staffing with an assignment approval form, and NHA may accept
or reject any professional without explanation.

[5]            
Solutions Staffing is obliged to obtain and maintain insurance in
accordance with Schedule B. Schedule B, in turn, includes a comprehensive
general liability policy for “personal injury and liability”.

[6]            
Paragraph 10.5  of the staffing contract states:

The Staffing Agency will indemnify and save harmless the Facility
from and against any and all losses, claims, damages, actions, causes of
action, costs and expenses, including legal costs on a solicitor own client
basis, that any of the Indemnitees may sustain, incur, suffer or be put to at
any time either before or after the termination of this Agreement, whether the
same or any of them are based upon, arise out of or occur, directly or
indirectly, by reason of:

a)     the
failure of any professional provided by the Staffing Agency to have the requisite
or qualification, competence and experience for an Assignment.

b)     any other breach
of this Agreement by the Staffing Agency

c)     any act or
omission of any of the Staffing Agency Group;

d)    
any representation or warranty of the Staffing Agency being untrue.

[7]            
 The employment agreement between Solutions Staffing and Nurse Musfelt
states her employment is at will, and the assignments the agency arranges are
temporary in nature and terminable at any time.

[8]            
Further, Solutions Staffing agreed to pay the nurses at specified hourly
and overtime rates. As well, they agreed to pay vacation pay and make
appropriate deductions to CPP, WCB, EI and federal and provincial taxes.

[9]            
Nurse Musfelt occasionally worked at the Dawson Creek Hospital in 2007
and 2008, some four to five months in total.

[10]        
On November 25, 2008, the Patient Care Clinical Resource Coordinator at
the hospital emailed Solutions Staffing stating “I am looking for an RN to fill
a full-time line beginning January for long-term. Do you have anyone
available?”

[11]        
On December 1, 2008, the Solutions Staffing accounts manager emailed the
Director of Patient Care and the Patient Care Clinical Resource Coordinator
advising that Nurse Musfelt would return to the hospital if needed. The same
day, the Patient Care Clinical Resource Coordinator emailed in response saying
they could use Nurse Musfelt starting on January 9, 2009.

[12]        
Solutions Staffing sent NHA an assignment proposal form regarding Nurse
Musfelt’s proposed assignment on “medical L8” commencing January 9, 2009, and NHA
signed the assignment on December 1, 2008.

Discussion

[13]        
Both counsel provided excellent arguments replete with authority. I
thank them for their excellent work. However, the trial is coming up very
quickly, and I am going to provide brief reasons.

[14]        
Both NHA and Solutions Staffing are enterprises that accept risk, but it
might be said NHA would not be considered a business for profit in the ordinary
sense whereas Solutions Staffing is.

[15]        
NHA effectively directs the nurse regarding the work she must perform. I
note NHA had employed Nurse Musfelt intermittently over the previous two years
to the incident, and it would have known Nurse Musfelt and her level and areas
of competence.

[16]        
I note also NHA has the choice to hire or not hire Nurse Musfelt. NHA
directs and controls the nurse on duty. NHA pays Solutions Staffing for Nurse
Musfelt’s services. In turn, Solutions Staffing take their portion of the
monies and pays Nurse Musfelt according to their contract and various
legislative requirements. NHA may discipline Nurse Musfelt, and NHA effectively
may “hire or fire”.

[17]        
NHA holds out that their staff, including Nurse Musfelt are competent to
deal with medical and surgical issues when a patient presents at the hospital. Ultimately,
one may say in contract, Nurse Musfelt’s employer is Solutions Staffing, but
here the claim is in tort, and I find NHA sufficiently connected to Nurse
Musfelt such that NHA may be vicariously liable.

[18]        
Macfarlane J. in McDonald v. Associated Fuels Ltd. [1954], 3
D.L.R. 775 quoted the words of Lord Blackburn in Dalton v. Angus & Co.
(1881), 6 App. Cas. 740 at p. 829:

On the other hand, a person
causing something to be done, the doing of which casts on him a duty, cannot
escape from the responsibility attaching on him of seeing that duty performed
by delegating it to a contractor. He may bargain with the contractor that he
shall perform the duty and stipulate for an indemnity from him if it is not
performed, but he cannot thereby relieve himself from liability to those
injured by the failure to perform it. (Italics removed.)

[19]        
In sum, NHA cannot contract out of its duty to its public patients.

[20]        
My answer to question one – “Is the NHA vicariously liable for the
acts and omissions of Nurse Musfelt while Nurse Musfelt was on assignment to the
hospital?” – is yes; the hospital can be vicariously liable for the alleged
acts and omissions of Nurse Musfelt.

[21]        
My answer to question two – “Is Solutions Staffing vicariously
liable for the acts and omissions of Nurse Musfelt while Nurse Musfelt was on
assignment at the hospital? – is also yes.

[22]        
The contracts between NHA, Solutions Staffing and Nurse Musfelt make it
plain that Solutions Staffing can be vicariously liable for the acts and
omissions of Nurse Musfelt while Nurse Musfelt was on assignment at the
hospital.

[23]        
Question two’s answer is driven by the contractual nexus. NHA paid
Solutions Staffing, and Solutions Staffing was obligated to select an
appropriate person and was responsible for paying Nurse Musfelt’s wages less
appropriate deductions.

[24]        
However, I point out my answer to question two is not a ruling in any
sense as to the liability of Solutions Staffing.

[25]        
Question three – “Is Solutions Staffing required to indemnify the
NHA for the acts and omissions of Nurse Museflt while Nurse Musfelt was on
assignment to the hospital pursuant to clause 10.5 of the staffing contract?” –
is a question I cannot answer at this point. A trial is needed to thoroughly analyze
this question.

[26]        
I do accept the argument that the indemnity clause was specifically what
was contracted for, i.e., to assign the risk of any negligence from NHA to
Solutions Staffing, and that Solutions Staffing ran its business at a profit
and one of its costs would be the obtaining of appropriate insurance, and
accordingly the plain wording “any act or omission of any of the staffing
agency group” could be sufficient to trigger the indemnity provision.

[27]        
However, I accept the submission that the nature and extent of the
contract between Solutions Staffing and NHA cannot be determined in this
context until a trial judge makes a finding of direct negligence on the part of
the NHA vis-à-vis the acts and omissions of Nurse Musfelt or indeed any
of the other staff. The case law cited to me makes it plain that the contract
clauses should not be determined until the factual matrix is proven. I note Solutions
Staffing argues case law provides a basis to fairly argue the indemnity clause
does not provide indemnity to NHA.

[28]        
Liability is yet to be established. Other nurses in the NHA’s employment
were named defendants, and issues may arise from the staff “mix”. Factual nuances
may well appear as the evidence is presented at trial that are not presently in
the contemplation of counsel or myself.

[29]        
In sum, my answers to this Special Case’s questions are:

1)    Question one:
yes;

2)    Question two:
yes; and

3)    Question three:
the answer must wait another day.

“The Honourable Mr. Justice Crawford”