John A. Little

Covertite Eastern Ltd., a third party, sought summary judgment to dismiss a third-party claim by GRC Architects Inc. in a construction dispute concerning persistent water infiltration in a building's roofing structure.

Covertite argued the issues were design-related, not workmanship, for which it had no responsibility.

GRC Architects Inc. contended there was evidence of Covertite's negligence and poor workmanship.

The court dismissed the motion, finding that the complex technical issues and overlapping factual disputes with the main action and another third-party claim created a significant risk of inconsistent findings, making summary judgment inappropriate and not conducive to judicial economy.

The plaintiffs sued the defendant construction manager for construction deficiencies.

The defendant brought a third party claim for contribution and indemnity against the architects.

The architects moved for summary judgment, arguing the claim was barred by a six-year contractual limitation period in their agreement with the plaintiffs.

The motion judge dismissed the motion, finding that s. 18 of the Limitations Act, 2002 superseded the common law principle that a contractual limitation can preclude a claim for contribution.

The Divisional Court allowed the appeal, holding that s. 18 does not override the established principle from Giffels that a party cannot claim contribution and indemnity where the plaintiff's rights against the third party have been extinguished by contract.

In a motor vehicle negligence appeal from a jury verdict, the appellants challenged the exclusion of an investigating police officer’s accident reconstruction opinion and the trial judge’s references to an inadmissible police report in the jury charge.

The court held that the trial judge erred in treating expert necessity as absent merely because other experts testified, and also erred by discussing the contents of the excluded report before the jury.

Nevertheless, applying s. 134(6) of the Courts of Justice Act, the court found no substantial wrong or miscarriage of justice because the officer’s observations and the defence expert’s evidence effectively conveyed the same theory, and the impugned charge did not materially affect the result.

The appeal was dismissed with costs.