ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-12855A2
DATE: 2014/02/26
B E T W E E N:
MCNALLY CONSTRUCTION INC.
Kenneth W. Movat.,
for the Plaintiff
Plaintiff
- and -
THE HAMILTON PORT AUTHORITY
Mark Abradjian,
for the Defendant
Defendant
- and –
GOLDER ASSOCIATES LTD.
Third Party
- and –
MAR-LAND ENGINEERING LIMITED
Fourth Party
P.John Brunner,
for the Third Party
No one appeared
for the Fourth Party
HEARD: December 30, 2013
PARAYESKI J.
[1] On December 30th 2013, I granted the third party’s a summary judgment motion for written reasons to follow. These are those reasons.
Basic Background Facts
[2] On January 18th 2007, the third party entered into a contract with the defendant to conduct bore hole testing at or near the defendant’s piers 21 and 22 on Hamilton Harbour. The request for quotation issued by the defendant, and upon which the third party bid and contracted, included a site plan showing the location of bore holes. All were on shore.
[3] On June 11 2007, the third party issued a “preliminary geotechnical evaluation” based upon its bore hole testing and analysis. That evaluation contained an expressed statement that conditions will vary between and beyond the bore hole locations. By definition, bore hole testing can only provide information on the subsurface soil and groundwater conditions present at the bore hole itself. Educated predictions of the conditions between the bore holes are made.
[4] In August and September of 2007, the plaintiff and defendant entered into a contract whereby the plaintiff agreed to complete a project for the defendant consisting mostly of a wharf at pier 22 and a pile “dolphin” structure at pier 21, all for a fixed price of $6,485,950.00, exclusive of GST.
[5] The plaintiff encountered difficulty when it commenced work at the shoreline and off shore as part of its project. The materials it encountered were significantly different from the conditions described in the third party’s geotechnical evaluation. Extra costs were allegedly incurred, and the plaintiff has sued the defendant only for recovery of the same. The statement of claim was issued on July 6th 2009.
[6] On October 21st 2009, the defendant issued its third party claim. It is solely for contribution and indemnity as against the third party.
[7] It is important to note that the plaintiff takes no issue with the third party’s interpretation of the data revealed by the bore holes it bored. In addition, at the motion before me, counsel for the plaintiff confirmed on the record that the plaintiff takes no issue with the location of the bore holes dug by the third party.
[8] When the plaintiff’s representative Jeff Starchuk was examined for discovery, he acknowledged that the plaintiff had no information on the subsurface conditions off-shore where it was intending to work, and that it simply assumed that the on-shore testing by the third party showed conditions “throughout the entire work area.”
Issue – Is the third party entitled to summary judgment in the circumstances described?
Analysis
[9] I am of the view that the issue here is a very narrow one. It is established law that a third party is only liable for contribution and indemnity, whether under section 1 of the Negligence Act, at common law, or in equity, if the third party is also directly liable to the plaintiff. In the Supreme Court of Canada decision in Giffels Associates Ltd v. Eastern Construction Co. 1978 39 (SCC), [1978] 2 S.C.R. 1346, Chief Justice Laskin stated, “Similarly, I am of the view that it is a precondition to the right to resort to contribution that there be liability to the plaintiff (emphasis added). I am unable to appreciate how a claim for contribution can be made [under the Negligence Act] by one person against another in respect of loss resulting to a third person unless each of the former two came under liability to the third person to answer for his loss.”
[10] In the Divisional Court decision of Canada Colors & Chemicals Ltd. v. Tenneco Canada Inc. 1995 10679 (ON SC), [1995] O.J. 25, Justice Moldaver stated “In my view, when considering s.1 of the Act [the section of the Negligence Act which specifically addresses contribution and indemnity claims], the following critical question must be asked: Does the Plaintiff have or did it ever have a cause of action against the third party arising out of the fault or neglect of such party? If the answer to that question is “No”, then irrespective of the reasons for this, s. 1 of the Act can have no application.”
[11] It appears to me that based upon the plaintiff’s admissions at the examination for discovery of his representative and at the return of this motion by its counsel, the plaintiff has no claim as against the third party on any basis. Without this, the defendant’s claim for contribution in indemnity cannot stand.
[12] Summary judgment is appropriate. The issue is narrow, and in my opinion at least, clear. No trial is required to determine it. I believe that I have a full appreciation of the relevant facts, and the result, i.e. dismissal of the third party claim (and of the fourth party claim), achieves fairness as between the parties.
[13] If the parties are unable to agree with respect to costs of the action or costs relative to the fourth party claim, they may make brief written submissions to me in that regard. Each set of submissions, if any, shall be no more than three type written pages in length, not including a costs outline. The submissions, again if any, are to be forwarded to me at the John Sopinka courthouse at Hamilton in accordance with the following schedule:
- The third party’s submissions shall be forwarded on or before March 31st 2014. Any other submissions are to be forwarded on or before April 30th 2014.
Parayeski J.
Released: February 26, 2014
COURT FILE NO.: 09-12855A2
DATE: 2014/02/26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MCNALLY CONSTRUCTION INC.
Plaintiff
- and -
THE HAMILTON PORT AUTHORITY
Defendant
- and –
GOLDER ASSOCIATES LTD.
Third Party
- and –
MAR-LAND ENGINEERING LIMITED?
Fourth Party?
RULING
Parayeski J.
Released: February 26, 2014