Court File and Parties
COURT FILE NO.: 62693A2 DATE: 2016/10/11 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Middlesex Condominium Corporation No. 229 (Plaintiff) AND: 1510231 Ontario Inc. (Defendant) AND: Development Engineering (London) Limited and Aviva Insurance Company of Canada (Third Parties) AND: Atkinson, Davies Inc. (Fourth Party)
COUNSEL: P. Morrissey, for the plaintiff L. Thacker and S. Johansen, for the defendant, 1510231 Ontario Inc. I. Peck, for the third party, Development Engineering (London) Limited L. Young, for the fourth party, Atkinson, Davies Inc. D. Eichler for the third party, Aviva Insurance Company of Canada
BEFORE: Justice A. K. Mitchell HEARD: September 12, 2016
Endorsement
Overview
[1] Four motions for summary judgment were before me as follows:
(a) The fourth party, Atkinson, Davies Inc. (“ADI”), seeks to dismiss the action against it on the basis that: (i) a claim does not exist between the plaintiff, Middlesex Condominium Corporation No. 229 (the “plaintiff”) and the neighbouring property owner, 1510231 Ontario Inc. (“151” or the “defendant”); (ii) if a claim does exist it is statute-barred; and (iii) if a claim does exist and is not statute-barred, there is no viable claim in tort for which contribution or indemnity can be claimed from ADI or the third party, Development Engineering (London) Limited (“DELL”) because ADI, DELL and 151 are not concurrent tortfeasors;
(b) DELL and Aviva both seek to dismiss the third party claims against them on the identical grounds advanced by ADI; and
(c) 151 seeks to dismiss the action against it on the basis that: (i) the plaintiff has no viable claim against it in tort or based on substantial interference/nuisance; and (ii) if it has such a claim it is statute barred. 151 opposes ADI’s and the third parties’ motions on the basis that ADI and DELL are both liable for contribution and indemnity as concurrent tortfeasors and Aviva is contractually liable.
[2] As a preliminary issue, counsel for the defendant objected to the late service of the affidavit of Jeannine Benincasa served September 9, 2016 filed in support of the plaintiff’s position on the motions. My endorsement of May 9, 2016 required all moving parties’ materials to be served 21 days prior to the return date and all responding parties’ materials to be served 14 days prior to the return date. The return date for the defendant’s motion was September 12, 2016 which date had been arranged by all counsel in consultation with the trial coordinator. Despite the timetable imposed by my endorsement, the defendant served its motion materials on August 31, 2016 – 12 days prior to the return of the motion. The defendant cannot now object to the late filing of responding materials by the plaintiff. If the issues on the defendant’s motion had not been identical to the issues raised on the fourth party’s motion, I would have adjourned the defendant’s motion to allow the plaintiff an opportunity to respond. However, I am satisfied that the plaintiff was given proper notice of all issues argued on these motions in light of the thorough and comprehensive factum delivered by ADI on August 30, 2016.
[3] Mr. Thacker also objects to the admission of Ms. Benincasa’s evidence on the basis it contains hearsay and includes documents not produced in this action rather produced in the first action (more particularly described below) and in breach the deemed undertaking rule (Rule 30.1 of the Rules of Civil Procedure). These actions will be tried together or one right after the other given the commonality of facts and issues. The deemed undertaking has no application in the circumstances. Although portions of the evidence are hearsay, I permitted the evidence to be admitted subject to the appropriate weight being ascribed to address any deficiencies.
Historical Context
[4] The plaintiff is a condominium corporation who owns the common elements of a townhouse-style condominium complex located in London, Ontario. The defendant owns lands located adjacent to the plaintiff’s property.
[5] The plaintiff and the defendant share ownership of a retaining wall consisting of gabion baskets situated along the banks of a creek bordering both properties. The gabion wall provides support to their respective properties. The wall also provides support to easements the plaintiff has over 151’s property. These easements relate to a road which provides access to the plaintiff’s property and a sanitary sewage pipe which carries sewage from the plaintiff’s property to the municipal sewer system.
[6] Pursuant to a Development Agreement between the City of London and Trenlon Developments Corporation entered into in 1989, the gabion wall was constructed later that same year. At the time of the wall’s construction, neither the plaintiff nor 151 owned their respective properties.
[7] In June 1991, the plaintiff acquired its property.
[8] Deterioration of the gabion wall was first noticed in 1998. In 2003, there was a catastrophic failure of the gabion wall on the properties of both the plaintiff and the defendant.
[9] In October 2003, following the major collapse of the gabion wall, the defendant acquired its property.
[10] Since then, the gabion wall has continued to deteriorate. The gabion wall has not been repaired or remediated by either the plaintiff or the defendant.
[11] Two actions relating to the failure of the gabion wall were commenced by the plaintiff. The first action was commenced on April 19, 2004. The defendants in the first action are those persons involved in designing, approving, building and supervising the construction of the wall and third and fourth parties who are alleged to have caused or contributed to the failure of the gabion wall.
[12] 151 is not a party to the first action. ADI is not a party to the first action. DELL is a party to the first action. Curiously, DELL did not claim against ADI in the first action despite its alleged involvement in the design and construction of the wall.
[13] This action (the second action) was commenced on June 18, 2009 – more than five years after commencement of the first action. The plaintiff alleges 151 was negligent in failing to maintain and repair that portion of the gabion wall located on its property thereby causing and continuing to cause damage to the plaintiff by interfering with its easement rights.
[14] ADI is a geotechnical engineering firm. It was consulted by DELL in 1989 about geotechnical issues relating to DELL’s proposed 4-tier gabion wall design. When DELL was sued by 151, it claimed over against ADI for contribution and indemnity, arguing that if DELL was liable to 151 for damages claimed by the plaintiff, then ADI was liable to provide contribution to DELL based upon ADI’s role in the initial construction.
[15] The defendant’s insurer, Aviva, was named as a third party because it denied insurance coverage to the defendant.
The Plaintiff’s Claims
[16] This action is about what 151 did not do rather than what 151 did do. In this action the plaintiff claims against the defendant for damages to its easement rights arising solely from the defendant’s failure to maintain and repair the wall since its acquisition of the property in 2003. The plaintiff pleads negligence and a substantial interference with its easement rights constituting a private nuisance.
[17] It is important to identify what this claim is not about. Aside from its easement rights on 151’s property, other property interests of the plaintiff including its property are not affected. Damage to the plaintiff’s own property is the subject matter of the first action. Those damages are not the subject matter of this action despite the quantum of the claim in each action being an identical amount.
[18] This claim does not involve the conduct of the defendant relating to the collapse of the wall. The defendant, as subsequent owner of its property, is not responsible for the wall’s collapse. This was clearly reflected in the plaintiff’s decision not to name 151 as a defendant in the first action.
[19] The plaintiff alleges that pursuant to the Development Agreement between the City of London and 151’s predecessor on title, Trenlon, and various building permits issued by the City of London to 151, the defendant had a contractual obligation to repair and maintain the wall so as to avoid erosion of the riverbank as a condition of development. The Development Agreement was registered on title to 151’s property in 1989 and is, pursuant to its terms, binding on all successors in title to the property which includes 151.
[20] To summarize, the plaintiff claims that 151 owed the plaintiff a duty to repair its portion of the wall so that the plaintiff may continue to enjoy its rights of easement over 151’s property. The plaintiff alleges that the defendant’s failure to repair and maintain the wall was negligent and substantially interfered with its easement rights thereby causing damage to the plaintiff.
Analysis
Test for Summary Judgment
[21] Pursuant to rule 20.01(3) of the Rules of Civil Procedure, a defendant to an action may move for summary judgment dismissing all or part of the claim against it. If the court is satisfied there is no genuine issue requiring a trial, the court must grant summary judgment.
[22] Hryniak v. Mauldin, 2014 SCC 7 is the leading case. Recognizing that affordable and timely access to the civil justice system is paramount, the Supreme Court of Canada has interpreted rule 20.03 to require motions judges to utilize their enhanced powers under rule 20 to weigh evidence, evaluate credibility and draw reasonable inferences where appropriate in order to expand the cases capable of being disposed of summarily without the need for costly and protracted litigation.
[23] This is one of those cases. The facts are not contentious. Credibility is not an issue. It is presumed that the parties have placed before me all relevant and necessary evidence. That is, the plaintiff has put its best foot forward. It is assumed for purposes of this motion that no better evidence exists upon which to decide the issues.
[24] The main issue for determination is whether 151 owes the plaintiff a duty to repair its portion of the wall. If no duty to repair exists pursuant to statute, contractually or in equity, the plaintiff has no claim against the defendant whether based in negligence, nuisance or substantial interference. If no duty to repair exists, the plaintiff`s claim must be dismissed.
Does 151 owe a duty to repair to the plaintiff?
A. Does 151 as servient tenement have a duty to repair with respect to easement rights of the dominant tenement?
[25] It is trite law that interference by the owner of the servient tenement with the enjoyment of the owner of the dominant tenement of the right-of-way must be substantial to be actionable. (Voye v. Hartley, 2002 NBCA 14 at para. 25).
[26] The question then becomes whether substantial interference with a dominant tenement’s easement rights may arise from passive conduct of the servient tenement by failing to do something. Viewed from another perspective, does a servient tenement have an obligation to be proactive to prevent damage to the dominant tenement easement rights?
[27] Parkinson v. Reid, [1966] S.C.R. 348 is the well-established authority on the issue. In that case, adjoining property owners shared a staircase. The building owned by the servient tenement was damaged by fire and the staircase was no longer available for use by the dominant tenement. The dominant tenement sought to impose a repair or replacement obligation on the servient tenement with respect to the staircase so that it could continue to access the second floor via the shared staircase. The court refused to impose such a positive obligation stating:
An obligation on the owner of the servient tenement to perform work on it would be inconsistent with the nature of an easement which as regards the servient owner is always negative, the obligation on him being either to suffer or not to do something.
[5] Ibid., at para. 13.
[28] Anything requiring the expenditure of money is considered a positive obligation. As the court in Amberwood Investments Ltd. v. Durham Condominium Corp. No. 123 noted, positive obligations do not bind subsequent property owners:
Positive covenants have been defined to include obligations requiring the expenditure of money or the doing of some act, such as repairing or reconstructing property. They do not run with the land either at law or in equity…
[29] In Norden v. Faridi, the British Columbia Court of Appeal applied the Parkinson principle, and allowed an appeal by a servient tenement owner because the court of first instance had imposed an obligation to share the cost of a well system on the servient tenement. The court stated:
It is an essential characteristic of an easement that it does not place on the owner of the servient tenement any obligation to act. Such an obligation can only be imposed by a positive covenant, the burden of which will not pass with the land. As a result the owner of the servient tenement has no obligation to maintain a right-of-way or, as the law is generally understood, to keep in repair a building in respect of which there is an easement of support.
[30] Plaintiff’s counsel referred me to the decision of the British Columbia Supreme Court in Mynott v. British Columbia (Ministry of Transportation), 2011 BCSC 209 as an example of the imposition of a positive obligation on a servient tenement with regards to the dominant tenement’s easement rights. In that case, the plaintiffs owned a home that was accessible by a right-of-way owned by the Province. Users of the property were students hired to pick the cherry crop in the area. These students congregated in the area of the right-of-way when they finished work for the day. The plaintiffs complained to the Ministry about the students’ obnoxious conduct which included noise and indecent activities and trespassing on the plaintiffs’ property. The court held that the Ministry permitted a nuisance to emanate from premises that it controlled and therefore had a duty to effectively abate the nuisance and failed to do so.
[31] The defendant Ministry was found to be responsible for the conduct of third parties using its land. These users were engaged in conduct that substantially interfered with the right of access of the dominant tenement. Liability for their conduct rested with the owner of the property being the Ministry.
[32] Mynott is not a case where a positive obligation was imposed on a servient tenement to do something to stop a nuisance from continuing where the cause of that nuisance or substantial interference was something for which the servient tenement was not responsible in law. It is conceded that the defendant, as subsequent owner of the property, is not liable for the conduct of the previous owner.
[33] The plaintiff also relies on the decision of the British Columbia Supreme Court in Turner v. Delta Shelf Co. Ltd.. In Turner the servient tenement had torn down a building on its property leaving debris and other material strewn about which interfered with the dominant tenement’s easement rights. The court ordered the servient tenement to remove the debris to facilitate access by the dominant tenement. This case is similarly distinguishable. In Turner the condition and state of the property was altered and the easement rights of the dominant tenement negatively affected as a direct result of the conduct of the property owner. But for the property owner tearing down the building, debris would not have been left. In the case before me, 151 is not responsible for the original collapse of the wall and therefore it follows that 151 cannot be liable to the plaintiff for any interference with its road access caused by the collapse of wall.
[34] In both Mynott and Turner, the property owner, or those in law for whom the property owner was responsible, was found responsible for the conduct creating the nuisance. Here, the defendant is not responsible for the collapse of the gabion wall.
[35] I am not persuaded by the case law provided by the plaintiff. I have not been directed to any authority whereby a positive obligation has been imposed on a servient tenement in circumstances where the servient tenement was not responsible for the cause of the damage to or interference with easement rights of the dominant tenement. A review of the substantial interference/nuisance cases reveals a common thread - the aggrieved conduct must be something done and not merely a failure to do something.
[36] Substantial interference with an easement requires active not passive wrongful conduct before a duty will be imposed. Accordingly, there is no common law obligation on 151 to repair the wall to facilitate the plaintiff’s road access or to eliminate any risk to the sewer line.
B. Do the obligations of 151 pursuant to the Development Agreement and the various building permits create a duty to repair the wall in favour of the plaintiff?
[37] The Development Agreement creates contractual duties between Trenlon (and its successors in title) and the City of London. The plaintiff and its predecessors in title are not parties to the Development Agreement.
[38] Pursuant to the Development Agreement, the following provisions are relevant:
- Special Provisions: (c) prior to issuance of a building permit the developer shall obtain written approval by the city engineer and the U.T.R.C.A for any works to be done adjacent to the Pottersburg Creek with respect to river stabilization and storm sewer outlets. In addition the developer shall provide to the City of London and the U.T.R.C.A. the following: (i) a one year maintenance guarantee on bank stabilization works upon final inspection approval. (ii) “as constructed” drawings of works along the riverbank. (d) The developer shall implement requirements of the City of London and the U.T.R.C.A. concerning sediment and erosion control measures during all phases of construction. The developer’s consulting engineer shall have these requirements established and reviewed by the U.T.R.C.A. and the City Engineer, prior to any work on the site.
[39] In addition to the Development Agreement, the plaintiff relies on the provisions of five building permits (See Exhibits “B” through “G” to the Affidavit of J. Benincasa sworn September 9, 2016) issued by the City of London to NRG Corp. (Although a corporate profile report for NRG Corp was not contained in the evidence, I have assumed for purposes of these motions that NRG Corp is one and the same as 1510231 Ontario Inc. based on the factual findings contained in the decision of the Divisional Court in Ayerswood Development Corp. v. London (City) Chief Building Official), and the defendant’s contractor, Ayerswood Developments Corp. over the period September 2003 through April 2004. These building permits require as a precondition to development of the second phase of townhomes that the defendant repair the collapsed wall. The permits indicate that a failure to comply with the precondition, allows the City to refuse issuance of a “connect permit.”
[40] As an aside, the defendant denies that it is in breach of any positive duty or obligation owed to the City as a precondition to development pursuant to the Development Agreement and/or the building permits.
[41] The defendant submits that no evidence is before the court to support a finding 151, as successor in title to Trenlon, failed to comply with its obligations under the Development Agreement. In particular, the defendant notes that any obligation to maintain the wall following its construction expired one year following final inspection approval. However, this submission ignores the finding of the Divisional Court in Ayerswood at para. 62 wherein it is stated:
We do not agree with [the applications judge’s] holding at para. 25 that the provision for a one year maintenance guarantee on bank stabilization works in para. 13(c)(i) was “the legal limit of the owner’s obligation to the city for the wall, nothing more and nothing less”. On the contrary, a reading of the agreement as a whole demonstrates that there were ongoing maintenance obligations placed upon the owner.
[42] The plaintiff submits that although not a party to the Development Agreement and the various building permits (Plaintiff confirmed on its motion to amend its statement of claim that it was not pursuing a claim for breach of contract), the defendant has a statutory duty to repair the wall and relies on section 41(10) of the Planning Act, R.S.O. 1990, c. P.13. Section 41(10) provides as follows:
Any agreement entered into under clause 7 (c) or (c.1) or under clause 8 (b) may be registered against the land to which it applies and the municipality is entitled to enforce the provisions thereof against the owner and, subject to the provisions of the Registry Act, R.S.O. 1990, c. R.20 and the Land Titles Act, R.S.O. 1990, c. L.5, any and all subsequent owners of the land.
[43] The Building Code Act, 1992, S.O. 1992, c. 23 contains a similar provision.
[44] The plaintiff relies on the decision of the Supreme Court of Canada in The Queen (Can.) v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. In Saskatchewan Wheat Pool the court found that a statutory breach did not give right to an independent cause of action rather at best provided evidence of negligence and established the standard of reasonable conduct. In that case, the court was dealing with a grain dealer’s breach of s. 86 (c) of the Canadian Grain Act, R.S.C. 1985, c. G-10.
[45] In the case at hand, there has been no breach of the Planning Act. Section 41(10) simply provides a method by which to enforce the provisions of the Development Agreement assuming there has been a breach. In addition to registering the Development Agreement against title to the land, the City was entitled to refuse to issue a connect permit to the defendant for failing to comply with the precondition to development. Accordingly, if any obligation exists which the plaintiff may rely on, it is the City’s obligation to ensure compliance with the Development Agreement and compliance with all preconditions to development. Unlike the grain dealer in Saskatchewan Wheat Pool who had a statutory duty to ensure the delivery of uninfested grain, s. 41(10) does not create a stand-alone duty on the defendant to maintain and repair the wall.
[46] ADI referred me to the decision in Brandon v. Brandon dealing with an analogous fact situation. In Brandon, the respondent Township entered into a site plan agreement with the respondent individuals setting out certain requirements relating to the construction of a new dwelling. The agreement specifically provided that a mobile home on the property was to be removed by the individual respondents. The applicant sought to enforce the mobile home removal clause, and applied for, among other relief, a mandatory injunction compelling the Township to enforce the clause. That application was dismissed. By supplementary application, the applicant then sought declaratory relief against the individual respondents. That application was also dismissed. The court held that the applicant could not enforce the provisions of the site plan agreement against any of the individual respondents because there was no privity of contract between the applicant and the individual respondents. Moreover, the applicant was not a third party for whom the benefits of extensions to the law relating to privity of contract should be extended. (Fraser-Bruce Maritimes Ltd. v. Central Mortgage & Housing Corp.).
[47] The requirement that a mobile home be removed as a precondition to construction in Brandon is akin to the requirement contained in the Development Agreement that Trenlon and the defendant, as its successor, maintain the gabion wall and analogous to the precondition to development contained in the building permits requiring the defendant to repair the wall. The plaintiff is neither a party to the Development Agreement nor the building permits. The obligations are owed exclusively to the City. The plaintiff is a stranger to the contract. For reasons unknown, the City has chosen not to enforce the defendant’s contractual obligations. However, as was noted in Brandon, the planning purpose does not fail by failing to extend enforceability to a third party beneficiary. The court concluded that the Township retained its power to enforce and will do so when it suits its purpose. That a side benefit may have arisen in favour of a third party was serendipitous as that third party did not contract for it. (Ibid., at para. 28).
[48] The situation before the court in Brandon, is the situation before this court. Should the City choose to enforce the provisions of the Development Agreement and the building permits against the defendant, the plaintiff will receive a benefit. However, that is a benefit serendipitously obtained and not one that was bargained for.
[49] I find that a statutory duty to repair does not exist. Based on principles of privity of contract, a contractual duty to repair similarly does not exist. Last, the case law is clear that no obligation to repair is owed by a servient tenement to a dominant tenement where the servient tenement did not cause or create the interference with the dominant tenement’s easement rights.
[50] I was referred to no authority to suggest a duty to repair arises in equity.
[51] Accordingly, the plaintiff’s claims in negligence and nuisance/substantial interference cannot succeed.
Are the plaintiff’s claims statute-barred?
[52] In light of my finding that a duty to repair does not exist, there is no need to address whether the plaintiff’s claims, if they had merit, are statute-barred.
Are the third and fourth parties liable for contribution and indemnity as concurrent tortfeasors?
[53] Despite my finding that the evidence cannot sustain any of the causes of action as pleaded, this issue must be determined as it will be relevant in assessing the reasonableness of naming DELL and ADI as third and fourth parties, respectively.
[54] The claim of 151 against DELL is for contribution and indemnity. Likewise, the claim of DELL against ADI is for contribution and indemnity.
[55] The defendant argues that DELL is liable for indemnity under the common law on the basis that a relationship exists between the parties imposing an obligation, in law or in equity, on DELL to indemnify 151. (McFee v. Joss at para.24). A common law obligation to indemnify typically arises from a contract express or implied; however, the obligation of indemnification has been extended to situations involving equitable considerations such as where the parties have a relationship and the party seeking indemnification from the other is not at fault. (Neely v. MacDonald, 2014 ONCA 874. See also Fenn v. Peterborough (City), [1981] 2 S.C.R. 613).
[56] Equitable indemnity is confined to situations of an express or implied understanding that a principal will indemnify its agent for acting on the directions given. (Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para.147).
[57] In this action, ADI and DELL, as persons involved in the construction of the wall, and the defendant, as a person not involved in the construction of the wall, are strangers. They share no relationship and thus share no express or implied understanding. Moreover, a lack of fault is the cornerstone of indemnification and therefore cannot apply to situations involving multiple tortfeasors unknown to one another. An action based on contribution is appropriate in those circumstances.
[58] There is no common law entitlement to contribution in tort. Therefore, any claim for contribution must be founded on the statutory provisions allowing for contribution and indemnity under the Negligence Act, R.S.O. 1990, c. N-1.
[59] Section 1 of the Negligence Act provides:
Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other and the degree in which they are respectively found to be at fault or negligent.
[60] In order for contribution to be available, the third party (or the fourth party) and the defendant (or the third party) must be concurrent tortfeasors, meaning they both caused the same damage or loss to the plaintiff. (Sale v. Gradys Restaurant, 2011 ONSC 2590 at para. 30).
[61] Stated in the reverse, there is no claim for contribution unless the damage caused is a single loss - that is, the loss is indivisible. If the injuries from the parties’ separate conduct can be separately assessed, then the damages are divisible and neither party is liable in contribution to the other. (Lawson v. Viersen, 2012 ONCA 56 at paras. 32 and 35).
[62] The distinction between several tortfeasors who are concurrent tortfeasors whose acts combined to produce the same damage and several tortfeasors whose acts combined to cause different damage, depends on whether the court is able to separate the different elements of damage. However, it is a rare case that two separate events give rise to a single, indivisible injury that would make it impossible to separate damages. If the damages overlap but flow from separate streams, the court is capable of identifying the separate damages and contribution will not be necessary. (O’Neill v. VanHorn at paras. 10 and 11).
[63] 151 argues that “but for” the negligence of DELL in constructing the wall, the damages allegedly suffered by the plaintiff would not have occurred. That is, without the collapse of the gabion wall the failure to repair the wall would not exist and therefore it is the same loss.
[64] I am not persuaded that we are dealing with the same loss. The plaintiff claims against the defendant for damage suffered as a result of interference with the plaintiff’s easement rights over the defendant’s property. Those damages relate to a lack of access to and use of the roadway and risk to the sewer system. The loss relating to the conduct of DELL and ADI relates to the initial collapse of the gabion wall and the cost to repair that portion of the wall located on the plaintiff’s property.
[65] Another way of looking at the issue is to identify the parties potentially responsible for the loss in both actions. Had we been dealing with conduct relating to the same loss, the defendant would have been a proper party in the first action. Clearly, the defendant is not a proper party and was not named as a party in the first action to reflect this reality. Conversely, DELL is quite rightly named as a party in the first action. Although not named in the first action, ADI would likewise properly fit within the defendant group in the first action. However, neither ADI nor DELL is a proper party in this action. They are strangers to 151 and their conduct and the conduct of 151 as the subsequent land owner did not result in the same damage or loss.
[66] ADI and DELL are no more responsible for the defendant’s failure to take steps to repair the wall than the defendant is responsible for the initial collapse of the wall. Therefore, 151, on the one hand, and ADI and DELL, on the other, are not concurrent tortfeasors and have no obligation of contribution or indemnity pursuant to s. 1 of the Negligence Act.
[67] The claim against Aviva for contribution and indemnity is based in contract. The defendant does not allege Aviva is a tortfeasor. The act of denying coverage made Aviva a proper third party in this action.
Disposition
[68] The plaintiff’s claim against the defendant is hereby dismissed. Incident to a dismissal of the plaintiff’s claim, the defendant’s third party claims against DELL and Aviva are hereby dismissed and DELL’s fourth party claim against ADI is also dismissed.
[69] Independent of the dismissal of the plaintiff’s claim, the defendant’s third party claim against DELL is hereby dismissed and DELL’s fourth party claim against ADI is hereby dismissed on the basis 151, DELL and ADI are not concurrent tortfeasors.
Costs
[70] Because my decision was reserved, the parties were unable to make any submissions regarding costs of these motions. If the parties are unable to reach an agreement on costs:
(a) ADI, DELL, 151 and Aviva may each serve and file written cost submissions, not to exceed four pages in length (exclusive of any bill of costs, case law, time dockets or costs outline), within two weeks of the release of this decision;
(b) The plaintiff, and any other party from whom costs is sought, may each serve and file responding written cost submissions also not to exceed four pages in length within two weeks of service of the last of the cost submissions of ADI, DELL, 151 and Aviva; and
(c) ADI, DELL, 151 and Aviva may serve and file, within one week of service of the last of the responding cost submissions, reply cost submissions not exceeding two pages in length.
[71] If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs of the motions.
[72] Costs of the actions dismissed shall be agreed or assessed.