Hans P. Engell

The appellants, land developers, retained the respondent engineering firm to prepare a geotechnical report on soil conditions for a townhouse development.

The report estimated pile foundations would need to be driven to an average depth of 20 feet, but ultimately they had to be driven to 60 feet, resulting in additional construction costs.

The appellants sued for breach of contract and negligent misrepresentation.

The trial judge dismissed the action.

On appeal, the Court of Appeal upheld the trial judge's findings that the failure to drill a sixth borehole was due to inaccessibility and that there was no evidence the respondent inaccurately interpreted the borehole data.

The appeal was dismissed.

The appellants, directors and officers of a bankrupt general contractor, appealed the dismissal of their motion to amend their statement of defence and compel further document production in a subrogated breach of trust action brought by the respondent sureties.

The Court of Appeal held that improvident underwriting was not a tenable defence to a subrogated action for breach of trust under the Construction Lien Act.

The Court also held that the limitation period in s. 45(1)(h) of the Limitations Act applies only to penal actions, whereas s. 13 of the Construction Lien Act is remedial, making the limitation defence untenable.

However, the Court allowed the appeal in part, granting leave to amend the statement of defence to plead the doctrine of laches.

The individual appellant appealed an order striking her claim and denying her leave to represent the corporate appellant under Rule 15.01.

The Court of Appeal dismissed the appeal, finding that the motions judge correctly concluded the individual appellant lacked legal capacity to sue, as the cause of action belonged to the corporation.

The Court further held it lacked jurisdiction to hear the appeal regarding the Rule 15.01 order, as it was interlocutory and appealable only to the Divisional Court with leave.

The appellant purchaser appealed a Small Claims Court judgment awarding the respondent vendor $6,000 in damages for an aborted real estate transaction and dismissing the appellant's third-party claim against her real estate agents.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's credibility findings or assessment of damages.

The court also held that the appellant could not rely on her own failure to pay the deposit to argue the agreement was null and void.

The Applicant was injured in a motor vehicle accident and sought payment for four medical assessments and reports under section 24 of the Statutory Accident Benefits Schedule.

The Insurer refused payment, arguing the reports were duplicative, deficient, or medical-legal in nature.

The Arbitrator found that the Insurer was not limited to its initial reasons for denial, but ultimately concluded that all four assessments were reasonable at the time they were requested and were obtained for the purpose of the Regulation.

The Arbitrator ordered the Insurer to pay for the assessments with interest, awarded the Applicant her arbitration expenses, and ordered a special award of 25 percent regarding two specific unpaid assessments for which the Insurer provided no reason for non-payment.

The applicant was involved in a motor vehicle accident and applied for education disability benefits.

The insurer denied the claim, and the applicant applied for mediation more than two years after the refusal.

The insurer raised a preliminary issue that the arbitration application was time-barred under s. 281(5) of the Insurance Act and s. 72(1) of the Statutory Accident Benefits Schedule.

The arbitrator found that the insurer provided a clear and unequivocal refusal of benefits and that the applicant understood the refusal.

The arbitrator held that the applicant was precluded from proceeding to arbitration because the limitation period had expired.