File No. CI06-01-46930
COURT OF QUEEN'S BENCH
WINNIPEG CENTRE
BETWEEN: GERALD PHILIP BHEYET,PLAINTIFF
- and -
LlONEL CHARTRANDDEFENDANT
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STATEMENT OF CLAIM
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Mirwaldt & Gray
Barristers, Solicitors, Notaries
402-171 Donald Street
Winnipeg, Manitoba
R3C 1M4
Phone: 943-3040
Fax: 943-5135
(Scott P. Gray File No. 1411-20G)
STATEMENT OF CLAIM1. The Plaintiff claims:
a) General damages;
b) Special damages in teh amount of $11,533.18 plus chch further special damages to be ascertained at the trial of this action;
c) Post judgment interest calculated pursuant to s. 84(1) of The Court of Queen's Bench Act, C.C.S.M., c C280;
d) Interest on the damages at such rate as this Honourable Court may allow;
e) Such other and further relief as this Honourable Court may allow; and
f) Costs of this action.
2. The plaintiff is an employee of Hudson Bay Mining and Smeltig Co. Ltd. and resides in the City of Flin Flon in the province of Manitoba.
3. The defendant is a barrister and solicitor practicing law in the Province of Manitoba and is a resident in or about the City of Winnipeg, Province of Manitoba.
4. On or about February 3, 1993 the plaintiff went to 21 Scarth Street in the City of Flin Flon to visit his friend, Lee Jenks, and while on the premises there slipped and fell on the path from the public sidewalk to the door of the home located there. As a result of the slip and fall, the Plaintiff severely broke his left leg and thereby suffered loss and damage.
Particularsa) As a result of the slip and fall, the Plaintiff was hospitalized with his broken leg for several weeks and had to undergo several operations including the insertion of multiple screws to hold the bone back in place;
b) Further, the Plaintiff was off work for several months and when he returned to work, he was forced to do light duties for an extended period of time and thereby lost the opportunity to work at his original employment and earn the overtime that accompanied that work.
5. Pursuant to The Occupiers Liability Act, C.C.S.M., c. 0-8 and The Residential Tenancies Act, C.C.S.M., c. R-119, the occupiers of this property were Lee Jenks residing on the property and Beverly Wadham and/or Brian Wadham as the manager or managers of the property for the owners, Frank and Stella Chrupalo.
6. The damages suffered by the plaintiff were caused by the negligence of either or both of the occupiers.
Particularsa) Failing to maintain the path from the street to the home on the property in a clean and safe manner to ensure that persons using the path could do so in safety and without harm;
c) Failing to construct a boardwalk or other level suitable structure for the safe passage of persons from the public sidewalk to the residence and; and
d) Failing to erect signs or other warning devices alerting persons using the path of the slippery conditions.
7. Sometime in either 1993 or 1994, the Plaintiff instructed and retained the Defendant who agreed to act as solicitor for the Plaintiff in making a claim and taking proceedings against all the persons potentially liable for the damages in negligence in respect of the said slip and fall. It was an implied term of the said agreement between the parties and a duty of the Defendant that the Defendant would exercise all due care, skill and diligence in and about the prosecution of the said claim and proceedings.
8. On or about November 9, 1994, the Defendant issued a Statement of Claim on behalf of the Plaintiff against the owners of the premises, being frand and Stella Chrupalo
d) Failing to erect signs or other warning devices, alerting persons using the path of the slippery conditions.
7. Sometime in either 1993 or 1994, the Pplaintiff instructed and retained the Defendant who agreed to act as solicitor for the Plaintiff in making a claim and taking proceedings against all the persons potentially liable for the damages in negligence in respect of the said slip and fall. It was an implied term of the said agreement between the Parties and a duty of the Defendant that the Defendant would exercise all due care, skill and diligence in and about the prosecution of the said claim and proceedings.
8. On or about Nobember 9, 1994, the Defendant issued a Statement of Claim on behalf of the Plaintiff against the owners of the premises being frank and Stella Chrupalo in Suit No. 95-08-00009 issued out of the Flin Flon Centre of the Court of Queen's Bench. The plaintiff relied upon the professional advice that he received from the Defendant in issuing said Statement of Cclaim that said claim was issued against the appropriate Parties.
9. On or about March 20, 1994, Frank and Stella Chrupalo filed and served upon the Defendant a Statement of Defence to the Statement of Claim wherein they indicated that Brian and Beverly Wadham were the ones who had rented the premises to Lee Jenks.
10. In breach of the term of the agreement between the Plaintiff and the Defendant and in breach of the duty of care from the defendant to the Pplaintiff, the Defendant failed to exercise any due care, skill and diligence in or about the prosecution of the said claim or proceedings.
Particularsa) Failing to issue a Statement of Claim against Lee Jenks within two years from the date when the Plaintiff's cause of action arose against him;
b) Failing to pursue an application against Beverly Wadham and/or Brian Wadham to extend the time for filing a claim against either of them within one year of the discovery of their involvement, being March 20, 1994 or shortly thereafter when the Defendant received the Statement of Defence;
c) Causing or permitting the said claim of the Plaintiff against Lee Jenks to be or become status-barred;
d) Failing to investigate the facts of the case sufficiently prior to issuing the Statement of Claim to ascertain the actual managers of the premises;
e) Failing to insist upon a Statement of Defence being filed prior to the expiration of the limitations period so that the determination of the management, if otherwise not deberminable, could be so determined prior to its having an adverse impact upon the claim of the Plaintiff;
f) Failing to make due or proper application for an extension of time under The Limitations of Actions Act, C.C.S.M., c. L-150 upon the discovery of the management of the premises and occupancy of the premises.
11. The prosecution of the action against the Chrupalos after more than one year had transpired since the filing and serving of the Statement of Claim was transferred to Don Knight and then Wayne Onchulenko before being assumed by the Plaintiff's present solicitor. In the meantime, the defence of the matter was transferred to Charles Sherbo of Filmore Riley. Mr. Sherbo took a motion for Summary Jdgment alleging that the Chrupalos were not appropriate Parties to the action by reason of them not being occupiers of the premises. The Motion was initially successful before the master but was successfully appealed to Mr. Justice Schulman. The Defendants then appealed successfully to the Court of Appeal and the action was dismissed by reasons delivered on September 9, 2004: see
Beheyt v. Chrupalo (2004), 187 Man. R. (2d) 202.
12. By reason of the matters aforesaid, the Plainitff has lost all prospect of recovering damages from the said Lee Jenks and the said Beverly Wadham and the said Brian Wadham in respect of the said slip and fall and he has been deprived thereby of the said damages and he has suffered thereby loss and damage. In particular, the Plaintiff has been ordered to pay the sum of $6,133.65 plus interest to the Chrupalos in respect of the costs of the said issued Statement of Claim. In addition, he has incurred legal costs for the defence of the Motion for Summary Judgment and the two appeals thereof to the extent of $5,399.54 plus interest thereon as calculated pursuant to The Legal Profession Act, C.C.S.M., c.-L107.
13. The Plaintiff therefore claims:
a) General damages;
b) Special damages in the amount of $11,533.18 plus such further special damages to be ascertained at the trial of this action;
c) Post judgment interest calculated pursuant ot s. 84(1) of The Court of Queen's Bench Act, C.C.S.M., c, C280;
d) Interest on the damages at such rate as this Honourable Court may allow;
e) Such other and further relief as this Honourable Court may allow;
e) Such other and further relief as this Honourable Court may allow; and
f) Costs of this action.
May 1, 2006
Mirwaldt & Gray
Barristers and Solicitors
402-171 Donald Street
Winnipeg, Manitoba R3C 1M4
Scott P. Gray, Counsel for the Plaintiff
