Court of Appeal Upholds MNR\'s Covenant to Indemnity CN Rail

The Ontario Court of Appeal recently released its reasons in the case of Coulter et al. v. The Canadian National Railway et al.—a case that involved a serious collision between a single passenger vehicle and a freight train on the tracks of the defendant Canadian National Railway Co. (CN) at a crossing maintained by the defendant Ontario Ministry of Natural Resources (MNR).

The decision followed from an appeal of the decision of Justice Meehan on June 25, 1998, pursuant to which the negligence of the defendants was apportioned as follows: 35 per cent to CN, 55 per cent to MNR, and 10 per cent to Mr. Hart—the owner of a lodge where the plaintiff had been a guest for the night. Meehan, J. further ruled, however, that MNR was contractually bound to indemnify CN, based on a provision contained in an agreement entered into between the parties in 1980.

The Court of Appeal upheld the validity of the indemnity provision, finding that it extended to all loss, expense and liability, however incurred by CN. The Court overturned the appeal of Mr. Hart, however, finding that Mr. Hart had a duty to warn the plaintiff. In this case, Mr. Hart was not an occupier of the crossing, nor did he exercise any responsibility or control over it.

The appellant Crown was represented by Duncan Finlayson, Q.C. of Finlayson & Singlehurst in Ottawa. Kenneth R. Peel of Fraser Milner Casgrain was successful in representing the defendant/respondent CN at both trial and appeal levels. The defendant/respondent Hart was represented by Donald H. Rogers, Q.C. and Allyn P. Abbott of Rogers, Moore.