DATE: 20061103

DOCKET: C43251

COURT OF APPEAL FOR ONTARIO

RE: B.G. SCHICKEDANZ (GEORGIAN BAY) INC. and KIRADAAR INVESTMENTS CORPORATION (Plaintiffs/Appellants) – and – V.A. WOOD ASSOCIATES LIMITED (Defendant/Respondent)

BEFORE: LASKIN, MACPHERSON and LANG JJ.A.

COUNSEL:

Conrad Schickedanz for the appellants

Hans P. Engell for the respondent

HEARD & RELEASED ORALLY: November 1, 2006

On appeal from the judgment of Justice Ernest Loukidelis of the Superior Court of Justice dated February 16, 2005.

E N D O R S E M E N T

[1] The appellants appeal the judgment of Loukidelis J. dismissing their action for breach of contract and negligent misrepresentation against the respondent.

[2] The appellants are land developers who were engaged in a waterfront townhouse development project in Penetanquishene called Bayside Estates. The respondent is an engineering firm specializing in geotechnical advice. The appellants retained the respondent to prepare a report about soil conditions on the development property, including advice about the foundation that would be required for the proposed buildings.

[3] The respondent’s report, at a contract price of $2700, discussed only pile‑type foundations. The report estimated average depth for the piles of approximately 20 feet but that “the final bearing capacity of each pile should be determined during driving”. The report also specifically stated that it was subject to a Statement of Limitations.

[4] The appellants did not retain the respondent at the construction stage of the project. The appellants proceeded and were required to drive the piles to an average depth of 60 feet. The pile foundations were installed properly and were suitable for the townhomes. However, the additional costs of construction were $129,406.

[5] The appellants brought an action against the respondent. The trial judge dismissed the action. He held that the respondent did not breach its contract with the appellant; nor did the respondent’s report amount to negligent performance of a professional service or negligent misrepresentation.

[6] The appellants contend that the respondent breached its contract by drilling only five holes rather than the six boreholes set out in its proposal. We disagree. The trial judge found that the location of the sixth hole was inaccessible. Moreover, the appellants did not request that the respondent do anything to circumvent this unforeseen problem.

[7] The appellants contend that the trial judge erred by not finding that the conclusions in the respondent’s report amounted to negligent misrepresentation. The appellants’ expert did testify that the respondent inaccurately interpreted the borehole data, but that opinion was based solely on the fact that the piles were driven significantly deeper than predicted by the respondent. There is no evidence, however, that the respondent inaccurately interpreted the data extracted from the boreholes.

[8] The appeal is dismissed with costs fixed at $10,000 inclusive of disbursements and GST.

“John Laskin J.A.”

“J. C. MacPherson J.A.”

“S. E. Lang J.A.”