Wood Waste Solutions Canada Inc. v. Associated Paving Company Ltd.

Wood Waste Solutions Canada Inc. v. Associated Paving Company Ltd. [Indexed as: Wood Waste Solutions Canada Inc. v. Associated Paving Co. Ltd.]

104 O.R. (3d) 230

2010 ONSC 6280

Ontario Superior Court of Justice,

Divisional Court,

Ferrier J.

November 30, 2010

Civil procedure -- Parties -- Adding parties -- Expiry of limitation period -- Plaintiff seeking to add engineering firm as defendant after expiry of 12-month limitation period in Professional Engineers Act -- Action commenced after expiry of that limitation period -- Doctrine of special circumstances not available to plaintiff. [page231]

Limitations -- Discoverability -- Discoverability principle applying to limitation period under s. 46(1) of Professional Engineers Act -- Professional Engineers Act, R.S.O. 1990, c. P.28, s. 46(1).

The plaintiff commenced an action against the defendant in November 2004 for, among other things, breach of contract arising out of the defendant's installation of pavement. In September 2009, the plaintiff discovered for the first time that it might have a cause of action against an engineering firm, L Ltd., arising out of L Ltd.'s provision of services to the plaintiff in October 2002. It brought a motion to add L Ltd. as a defendant. The motion was granted. L Ltd. appealed.

Held, the appeal should be dismissed.

Under the transition provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, the 12-month limitation period under s. 46(1) of the Professional Engineers Act applied to the claim against L Ltd. The discoverability rule applies to s. 46(1) of the Act. The master correctly granted the motion on that basis. However, she erred in finding that, if the discoverability rule did not apply, the special circumstances doctrine was available to assist the plaintiff. When an amendment is permitted under the special circumstances doctrine, the newly added claim is deemed to be made on the date of the statement of claim. If the statement of claim was issued after the expiry of the limitation period, as in this case, the remedy of special circumstances is ineffectual.

APPEAL from an order adding a party as a defendant.

Cases referred toBasarsky v. Quinlan, 1971 5 (SCC), [1972] S.C.R. 380, [1971] S.C.J. No. 118, 24 D.L.R. (3d) 720, [1972] 1 W.W.R. 303; Charlebois v. Enterprises Normand Ravary Limitee (2006), 2006 8873 (ON CA), 79 O.R. (3d) 504, [2006] O.J. No. 1114, 266 D.L.R. (4th) 732, 208 O.A.C. 253, 50 C.L.R. (3d) 182, 146 A.C.W.S. (3d) 755 (C.A.), revg [2005] O.J. No. 4612, 47 C.L.R. (3d) 234, 143 A.C.W.S. (3d) 268 (S.C.J.); Fehr v. Jacob, 1993 4407 (MB CA), [1993] M.J. No. 135, [1993] 5 W.W.R. 1, 85 Man. R. (2d) 63, 14 C.C.L.T. (2d) 200, 14 C.P.C. (3d) 364, 39 A.C.W.S. (3d) 693 (C.A.); Grenier v. Canadian General Insurance Co. (1999), 1999 2156 (ON CA), 43 O.R. (3d) 715, [1999] O.J. No. 852, 118 O.A.C. 204, 9 C.C.L.I. (3d) 225, 32 C.P.C. (4th) 267, 87 A.C.W.S. (3d) 159 (C.A.); Guerin v. Canada, 1984 25 (SCC), [1984] 2 S.C.R. 335, [1984] S.C.J. No. 45, 13 D.L.R. (4th) 321, 55 N.R. 161, [1984] 6 W.W.R. 481, 59 B.C.L.R. 301, [1985] 1 C.N.L.R. 120, 20 E.T.R. 6, 36 R.P.R. 1; Joseph v. Paramount Canada's Wonderland (2008), 90 O.R. (3d) 401, [2008] O.J. No. 2339, 2008 ONCA 469, 294 D.L.R. (4th) 141, 56 C.P.C. (6th) 14, 166 A.C.W.S. (3d) 762, 241 O.A.C. 29; Meady v. Greyhound Canada Transportation Corp. (2008), 90 O.R. (3d) 774, [2008] O.J. No. 2338, 2008 ONCA 468, 53 C.P.C. (6th) 1, 61 M.V.R. (5th) 195, 294 D.L.R. (4th) 152, 166 A.C.W.S. (3d) 763, 240 O.A.C. 188; Middlesex Condominium Corp. No. 185 v. Caradon Developments Inc., [1995] O.J. No. 173, 19 C.L.R. (2d) 105, 53 A.C.W.S. (3d) 182 (Gen. Div.); Murphy v. Welsh; Stoddard v. Watson, 1993 59 (SCC), [1993] 2 S.C.R. 1069, [1993] S.C.J. No. 83, 106 D.L.R. (4th) 404, 156 N.R. 263, 65 O.A.C. 103, 18 C.C.L.T. (2d) 101, 18 C.P.C. (3d) 137, 47 M.V.R. (2d) 1, 42 A.C.W.S. (3d) 509; Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, 151 D.L.R. (4th) 429, 217 N.R. 371, J.E. 97-1825, 103 O.A.C. 161, 46 C.C.L.I. (2d) 147, 12 C.P.C. (4th) 255, 30 M.V.R. (3d) 41, 74 A.C.W.S. (3d) 117; Ryan v. Moore, [2005] 2 S.C.R. 53, [2005] S.C.J. No. 38, 2005 SCC 38, 254 D.L.R. (4th) 1, 334 N.R. 355, J.E. 2005-1188, 247 Nfld. & P.E.I.R. 286, [2005] R.R.A. 694, 25 C.C.L.I. (4th) 1, 32 C.C.L.T. (3d) 1, 18 E.T.R. (3d) 163, 139 A.C.W.S. (3d) 1089; Waschkowski v. Hopkinson Estate (2000), 2000 5646 (ON CA), 47 O.R. (3d) 370, [2000] O.J. No. 470, 184 D.L.R. (4th) 281, 129 O.A.C. 286, 44 C.P.C. (4th) 42, 32 E.T.R. (2d) 308, 95 A.C.W.S. (3d) 208 (C.A.); [page232] Waterloo Region District School Board v. CRD Construction Ltd. (2009), 2009 60412 (ON SC), 98 O.R. (3d) 534, [2009] O.J. No. 4631, 313 D.L.R. (4th) 82 (S.C.J.); Weldon v. Neal (1887), 56 L.J. Q.B. 621, 19 Q.B.D. 394 (C.A.); Wood Waste Solutions Canada Inc. v. Associated Paving Co., [2010] O.J. No. 1655, 2010 ONSC 2313 Statutes referred to Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 24 Professional Engineers Act, R.S.O. 1980, c. 394, s. 28(1) Professional Engineers Act, R.S.O. 1990, c. P.28, s. 46(1) [rep. S.O. 2002, c. 24, Sch. B, s. 25], (2)

Timothy M. Squire and Nadia Jandali Chao, for plaintiff (respondent). Stephen Chisholm, for defendant (respondent). Robert W. Kerkmann, for appellant, Landtek Limited.

[1] Endorsement of FERRIER J.: -- Landtek Limited ("Landtek") appeals from the order of Master Abrams dated April 18, 2010 [[2010] O.J. No. 1655, 2010 ONSC 2313], which added Landtek as a defendant.

[2] The main issue in this appeal is whether the discoverability rule applies to the former s. 46(1) of the Professional Engineers Act, R.S.O. 1990, c. P.28. The Proceedings to Date and the Alleged Facts

[3] In November 2002, Wood Waste Solutions Canada Inc. ("Wood Waste") entered into a paving contract with the defendant, Associated Paving Company Ltd. ("Associated Paving"), to pave approximately 11,000 square metres of yard and roadway at Wood Waste's premises in Bolton, Ontario. At the time that the contract was entered into, the site was mostly gravel.

[4] Prior to entering into the contract, Wood Waste, having no knowledge about how to effectively pave the site, retained the engineering company Landtek to investigate the conditions at the site and provide the design specifications for the paving job. The design specifications from Landtek were incorporated into, and formed the basis of, the contract.

[5] In November and December 2002, Associated Paving carried out the paving job. However, by March 2003, the asphalt had begun to disintegrate, and by May 2003, more than half of the asphalt was subject to serious defects, which included continued disintegration, compaction problems and drainage problems.

[6] On November 8, 2004, after discussions with Associated Paving about the problems at the site, Wood Waste commenced this action against Associated Paving for, among other things, [page233] breach of the contract. In the statement of claim, Wood Waste alleged that in late 2002, Associated Paving failed to install a pavement structure at the site in accordance with the design specifications set out in the contract; the failure to follow the design specifications caused the pavement at the site to disintegrate, and Associated Paving thereafter refused to honour its guarantee as to workmanship and materials. Wood Waste claimed damages in excess of $680,000.

[7] In its defence, Associated Paving took the position that the problems at the site were the result of the paving job being performed in freezing weather conditions. It alleged that it could not fulfill the design specifications set out in the contract because Wood Waste insisted that the job proceed during this inclement weather.

[8] On July 13, 2009, two months before the trial of this action was scheduled to proceed, Associated Paving served a notice of change of solicitors, whereby it retained Steven Chisholm as counsel of record. Shortly thereafter, Mr. Chisholm requested an adjournment of the trial. Wood Waste agreed to this adjournment and both counsel attended court on September 14, 2009 to seek the adjournment on consent. The adjournment was granted.

[9] While at court on September 14, 2009, Mr. Chisholm advised counsel for Wood Waste that he had found a document in Associated Paving's file, prepared by Landtek, which had not previously been produced. Mr. Chisholm told counsel for Wood Waste that he believed this document should be produced and indicated his intention to do so.

[10] This document was ultimately produced to counsel for Wood Waste on September 22, 2009. It was a "private and confidential" letter report prepared by Landtek at the request of Associated Paving dated November 12, 2004 (the "2004 Landtek Letter"). Landtek was aware of the dispute as between Associated Paving and Wood Waste at the time it drafted the 2004 Landtek Letter.

[11] The information in the 2004 Landtek Letter revealed, for the first time, that the original design specifications provided by Landtek were deficient and that Landtek had failed to disclose to Wood Waste certain conditions at the site that would affect the longevity of the pavement structure. The 2004 Landtek Letter appears to have been concealed by Associated Paving since 2004 and Wood Waste had no knowledge of its existence or its contents until it was produced on September 22, 2009.

[12] Based on this new information, Wood Waste asserts an additional claim against Landtek for breach of contract and [page234] negligence. The basis of the claim was only discovered on September 22, 2009, when the 2004 Landtek Letter was produced for the first time.

[13] Prior to the disclosure of the 2004 Landtek Letter on September 22, 2009, there was no reason to believe that the deterioration of the pavement at the site was a result of anything other than improper installation by Associated Paving. Up until that time, there had been no suggestion or reason to suspect that Landtek's original site inspection, recommendations and design specifications were deficient, as all of the evidence relating to the problems with the pavement pointed to the thickness of the asphalt, the installation of the base and the weather.

[14] Landtek refused to consent to be added as a defendant and Wood Waste moved before the master for relief. Associated Paving took no position on the motion and takes no position on this appeal. Master Abrams concluded that it was at least open to argument that the discoverability principle applies to s. 46(1). She further held that even if the discoverability principle did not apply, the existence of special circumstances militated against a dismissal of the motion. Issues

[15] The issues are as follows: Issue 1: What is the limitation period for the claim against Landtek? Issue 2: Does the discoverability rule apply? Issue 3: Is the "special circumstances" doctrine available to the plaintiff and does it apply in this case if the limitation period expired October 15, 2003? Issue 4: Is the master's order a final order, and is this appeal brought in the correct forum?

Issue 1: What is the limitation period for the claim against Landtek?

[16] Landtek's services were provided in October 2002. The Limitations Act, 2002, S.O. 2002, c. 24, Sch. B came into effect on January 1, 2004. Section 24 of the Act contains transition provisions. The relevant subsections of s. 24 are as follows:

24(2) This section applies to claims based on acts or omissions that took place before the effective date and in respect of which no proceeding has been commenced before the effective date. [page235]

(3) If the former limitation period expired before the effective date, no proceeding shall be commenced in respect of the claim.

[17] Since the alleged negligent acts or omissions of Landtek took place in 2002, which is prior to the effective date of January 1, 2004, the court must inquire as to whether the former limitation period expired prior to January 1, 2004, in which case the proceeding is barred.

[18] The former limitation period was found in s. 46(1) of the Professional Engineers Act, which, before it was repealed on January 1, 2004, stated as follows:

46(1) Proceedings shall not be commenced against a member of the Association or a holder of a certificate of authorization, a temporary licence, or a limited licence for damages arising from the provision of a service that is within the practice of professional engineering after twelve months after the date on which the service was, or ought to have been, performed.

[19] It is well beyond 12 months after services were last performed by Landtek, and therefore the plaintiff's claim is presumptively barred.

Issue 2: Does the discoverability rule apply?

[20] Landtek submits that the discoverability rule does not apply because s. 46(1) of the Professional Engineers Act provides that the limitation period starts to run upon the occurrence of a particular event, i.e., the performance of a service, that occurs without regard to the plaintiff's knowledge of injury or damage.

[21] Landtek relies on Fehr v. Jacob, 1993 4407 (MB CA), [1993] M.J. No. 135, [1993] 5 W.W.R. 1 (C.A.), where the Manitoba Court of Appeal had to decide whether a claim could proceed against a doctor. The applicable limitation period provided that an action was not allowed unless commenced "within two years from the date when, in the matter complained of, those professional services terminated". The plaintiff argued that the discoverability rule should apply. The court rejected the plaintiff's argument and stated as follows, at para. 22:

In my opinion, the judge-made discoverability rule is nothing more than a rule of construction. Whenever a statute requires an action to be commenced within a specified time from the happening of a specific event, the statutory language must be construed. When time runs from "the accrual of the cause of action" or from some other event which can be construed as occurring only when the injured party has knowledge of the injury sustained, the judge-made discoverability rule applies. But, when time runs from an event which clearly occurs without regard to the injured party's knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed. (Emphasis added) [page236]

[22] In Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53, [2005] S.C.J. No. 38, at para. 23, the Supreme Court of Canada quoted the above passage from Fehr v. Jacob with approval.

[23] The Ontario Court of Appeal has cited Fehr v. Jacob and recognized that the discoverability principle does not apply to all limitation periods. In Waschkowski v. Hopkinson Estate (2000), 2000 5646 (ON CA), 47 O.R. (3d) 370, [2000] O.J. No. 470 (C.A.), at para. 7, the court went on to observe:

The primary interpretative conclusion of Major J.'s analysis is that the application of the discoverability rule depends on the wording of the limitation provision. The ancillary conclusion is that the discoverability rule does not apply when, based on that wording, the limiting time runs from a fixed event unrelated to the injured party's knowledge or the basis of the cause of action: see Grenier v. Canadian General Insurance Co. (1999), 1999 2156 (ON CA), 43 O.R. (3d) 715 (Ont. C.A.), per Morden A.C.J.O.).

[24] Landtek argues that its position is reinforced by the fact that the enactment of s. 46(1) of the Professional Engineers Act in 1984 changed the previous wording which was found in s. 28(1) [of the Professional Engineers Act, R.S.O. 1980, c. 394]. Before 1984, the limitation period commenced to run from the time the cause of action arose:

28(1) Except as provided in subsection (2), an action against a member or a licensee for negligence or malpractice in connection with professional services requested of him or rendered by him or under his direction or control shall be commenced within and not later than twelve months after the cause of action arose.

[25] It is argued that the old wording attracted the discoverability rule since the limitation period commenced after the "cause of action" arose, which implies knowledge of injury or damage. Landtek submits that the discoverability rule was displaced by the enactment of the new wording in s. 46(1).

[26] Landtek refers in argument to Middlesex Condominium Corp. No. 185 v. Caradon Developments Inc., [1995] O.J. No. 173, 19 C.L.R. (2d) 105 (Gen. Div.), at para. 13, and to Waterloo Region District School Board v. CRD Construction Ltd. (2009), 2009 60412 (ON SC), 98 O.R. (3d) 534, [2009] O.J. No. 4631 (S.C.J.), at paras. 3, 6 and 7, as support for its position. However, neither case squarely addresses the issue.

[27] In Charlebois v. Enterprises Normand Ravary Limitee (2006), 2006 8873 (ON CA), 79 O.R. (3d) 504, [2006] O.J. No. 1114 (C.A.), revg [2005] O.J. No. 4612, 47 C.L.R. (3d) 234 (S.C.J.), the defendant engineers moved for summary judgment on the basis of the limitation period in s. 46(1). The motion was dismissed because there were factual issues covering the question of knowledge on the part of the plaintiffs. It appears that the defendant engineers [page237] did not take the position that the discoverability rule did not apply. The plaintiff had cross-moved for an order under s. 46(2) extending the period. The motion judge granted this relief.

[28] The defendant appealed the latter order, and that order was set aside on appeal because it would have precluded reliance by the defendants on "a limitation period defence" and because there were factual issues involved in the s. 46(2) considerations which should go to trial.

[29] The Court of Appeal held, at para. 19, that knowledge was relevant to both the summary judgment motion (s. 46(1)) and to the factors applicable on a s. 46(2) analysis regarding an extension of the limitation period:

The facts surrounding the respondents' knowledge of the cause of the defects in the foundation of their house were relevant both to the appellants' summary judgment motion and to the factors applicable on a s. 46(2) analysis regarding an extension of the limitation period. The motion judge's conclusion that there exists a genuine issue for trial as to the timing of the respondents' knowledge of those facts precluded any analysis of the evidence bearing on that issue.

[30] This marks the distinction between a determination of when the limitation period has begun to run (discoverability under s. 46(1)) and, once the period has expired, whether there are circumstances which permit it to be extended (discretionary extension of the limitation period under s. 46(2)).

[31] By granting the extension under s. 46(2), the motion judge effectively obliterated the defendant's limitation defence under s. 46(1) and the order under s. 46(2) was set aside so that the issue could go to trial.

[32] As is noted in the cases on the subject, the question is to be decided on the interpretation of s. 46(1).

[33] In my view, there is a significant difference between a date upon which services were terminated (as in Fehr) and a date upon which services were performed. The former does not invite a consideration of knowledge. But the latter, which involves when services were performed, the services being the very thing that the plaintiff complains of, does attract a consideration of knowledge.

[34] When the event triggering the commencement of the period is a basis for or a part of the cause of action, such as the performance of services, the discoverability rule applies: Grenier v. Canadian General Insurance Co. (1999), 1999 2156 (ON CA), 43 O.R. (3d) 715, [1999] O.J. No. 852 (C.A.), per Morden A.C.J.O.; Washkowski v. Hopkinson Estate, supra, per Abella J.A.

[35] Furthermore, clear language is required in order to displace the "strong" general rule of discoverability: [page238] Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, at para. 39; Grenier v. Canadian General Insurance Co., supra, at para. 21.

[36] Accordingly, the discoverability rule applies to s. 46(1).

Issue 3: Is the "special circumstances" doctrine available to the plaintiff and does it apply in this case if the limitation period expired in October 2003?

[37] A common law doctrine developed in Canada which permitted a defendant to be added to an existing claim by amendment after expiry of a limitation period if special circumstances existed. The discretion is no longer available under the new Limitations Act, 2002: Joseph v. Paramount Canada's Wonderland (2008), 2008 ONCA 469, 90 O.R. (3d) 401, [2008] O.J. No. 2339 (C.A.). However, it is potentially available in cases where the transition provisions of the Limitations Act, 2002 result in the application of an old limitation period: Meady v. Greyhound Canada Transportation Corp. (2008), 2008 ONCA 468, 90 O.R. (3d) 774, [2008] O.J. No. 2338 (C.A.). Landtek acknowledges that the old limitation period is being applied, and therefore the doctrine has the potential to apply.

[38] However, Landtek submits that it does not apply in the circumstances of this case because the claim against Landtek expired prior to November 2004, when the plaintiff's statement of claim was issued.

[39] The origin of the "special circumstances doctrine" in Canada appears to be the English decision in Weldon v. Neal (1887), 56 L.J. Q.B. 621, 19 Q.B.D. 394 (C.A.), which was adopted by the Supreme Court of Canada in the oft-cited decision of Basarsky v. Quinlan, 1971 5 (SCC), [1972] S.C.R. 380, [1971] S.C.J. No. 118. In Weldon, Lord Esher M.R. stated, at p. 621 L.J. Q.B.:

It has been decided in this Court that where an amendment is allowed, it is subject to this rule--that the existing rights of the parties at the time of the amendment must not be altered. It has been urged that if the Court were to allow an amendment by adding a cause of action which, if the writ were issued at the time when such amendment is allowed, would be barred, this would be giving the plaintiff an advantage and taking away from the defendant a right which he would have had--the effect of such an amendment being to allow the plaintiff to take advantage of the original writ of summons for the purpose of defeating the Statute of Limitations. The Court, in as much as they have power to allow amendment, would, under very peculiar circumstances, allow it to be made; but, as a general rule, such an amendment is not allowed. There are no peculiar circumstances here. The plaintiff originally brought an action for slander alone; and if the matters now sought to be put into the statement of claim had been included in the writ of summons, they would not have been barred; whereas if a new writ were to be issued in respect of these matters they would be barred. The effect of allowing these amendments would be to deprive the defendant of his right to [page239] plead the Statute of Limitations, because the causes of action would be referred back to the date of the original writ in the action of slander. (Emphasis added)

[40] When an amendment is permitted under the special circumstances doctrine, the newly added claim is deemed to be made on the date of the statement of claim. If the statement of claim was issued after expiry of the limitation period, the remedy of special circumstances is ineffectual: Murphy v. Welsh; Stoddard v. Watson, 1993 59 (SCC), [1993] 2 S.C.R. 1069, [1993] S.C.J. No. 83, at para. 14:

Even if there are special circumstances in the case at bar they do not assist Sharon Murphy's claim. As this court held in Basarsky v. Quinlan, 1971 5 (SCC), [1972] S.C.R. 380, in special circumstances the court will allow a statement of claim to be amended to add another party after a limitation period expires. However, the new party's claim will only go back to the date of the statement of claim. Here, even if Sharon Murphy is added to Jamie Murphy's action, her claim is out of time. While the statement of claim was filed in time for the infant, it was too late for the adult. The remedy granted by the Supreme Court of Ontario was ineffectual. (Emphasis added)

[41] This nature of the special circumstances doctrine is reflected in the fact that the discretion to permit a claim after expiry of a limitation period is only available where a plaintiff is seeking to amend an existing claim and it is not applicable to the issuance of a new claim: Paramount Canada's Wonderland, at para. 28.

[42] If Wood Waste's amendment is allowed, then its claim against Landtek is deemed to be commenced on the date the statement of claim was issued, which is November 8, 2004. If the limitation period expired on or about October 15, 2003, then the claim will still have been commenced more than a year after the limitation period expired, and hence it is still barred. Therefore the special circumstances doctrine is inapplicable.

[43] Accordingly, with respect, the learned master erred in holding that the special circumstances doctrine is available to assist the plaintiff in this case. Alternative Issue Raised by Wood Waste

[44] In the alternative, there is an issue raised as to whether the limitation period for the claim against Landtek was tolled on the basis that the 2004 Landtek Letter was concealed from Wood Waste until September 2009. As described by the Supreme Court of Canada in Guerin v. Canada, 1984 25 (SCC), [1984] 2 S.C.R. 335, [1984] S.C.J. No. 45, at para. 115:

It is well established that where there has been a fraudulent concealment of the existence of a cause of action, the limitation period will not start to run [page240] until the plaintiff discovers the fraud, or until the time when, with reasonable diligence, he ought to have discovered it. The fraudulent concealment necessary to toll or suspend the operation of the statute need not amount to deceit or common law fraud. Equitable fraud, defined in Kitchen v. Royal Air Force Association, [1958] 1 W.L.R. 563, as "conduct which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other", is sufficient.

[45] Wood Waste argues that the role Landtek played in the concealment of the 2004 Landtek Letter from Wood Waste needs to be further explored, as does the question of whether, having regard to the relationship between Landtek and Wood Waste, it was unconscionable for Landtek to not disclose the facts in the 2004 Landtek Letter to Wood Waste at an earlier time. This issue can only be properly addressed at trial on a full evidentiary record. Conclusion

[46] In the result, the appeal is dismissed. Costs

[47] The appellant was successful on the "special circumstances doctrine" issue, but the respondent prevailed on the central question of adding Landtek as a defendant.

[48] Costs to the respondent fixed at $5,000.

Appeal dismissed.