Stephen N. Libin

Following settlement of a negligence action concerning damage at a nuclear generating station, the defendant brought a third party claim against its lawyers alleging professional negligence in drafting and advising on contractual arrangements and settlement strategy.

The lawyers in turn issued a fourth party claim against the original defendants and the plaintiff seeking contribution and indemnity under the Negligence Act.

The court held that the third party claim limited recovery to the lawyers’ proportionate degree of fault, meaning they could never be liable for damages attributable to others.

Because contribution rights arise only where a party may be required to pay more than its proportionate share of the plaintiff’s damages, the fourth party claim disclosed no reasonable cause of action.

The claim was struck under rule 21.01(1)(b) of the Rules of Civil Procedure.

The appellant appealed the dismissal of its counterclaim, arguing the motion judge failed to address the 'finished products discount'.

The Court of Appeal dismissed the appeal because the discount issue was not pleaded in the counterclaim, and the appellant neither brought a refusal motion nor sought to amend its pleadings.

The motion judge did not err in not addressing the issue or in failing to raise the question of an amendment on his own initiative.

The appellant appealed a decision of the Health Services Appeal and Review Board under the Independent Health Facilities Act.

The Divisional Court found that the Board erred in law by asking itself the wrong question, limiting its consideration to whether the Director had the authority to revoke the appellant's licence rather than whether the revocation was a reasonable exercise of discretion.

The court rescinded the Board's decision and remitted the matter back for a re-hearing, noting that the Board's process is a hearing where it may substitute its own opinion for that of the Director.