Rothfield v. Manolakos, [1989] 2 S.C.R. 1259 (1989)

Extract

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Rothfield v. Manolakos, [1989] 2 S.C.R. 1259 (1989)

Rothfield v. Manolakos, [1989] 2 S.C.R. 1259

The Corporation of The City of Vernon and William Phillips Appellants v.

Peter Manolakos and Voula Manolakos Respondents and

Ralph Gohmann and Barry Barber Respondents and

B & L Landscaping & Maintenance Ltd.

and Morris Reade, a.k.a. William Morris Defendants and

Woodcraft Ventures Ltd. Third Party and between

The Corporation of The City of Vernon and William Phillips Appellants v.

Peter Manolakos and Voula Manolakos Respondents and

Ralph Gohmann and Barry Barber Respondents and

William Rothfield and Charles Burtch Plaintiffs and

B & L Landscaping & Maintenance Ltd.

and Morris Reade, a.k.a. William Morris Third Parties indexed as: rothfield v. manolakos

File No.: 20740.

1989: March 21; 1989: December 7.

Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux-Dubé, Gonthier and Cory JJ.

on appeal from the court of appeal for british columbia

Torts -- Negligence -- Municipality -- Duty of care -- Building permit issued notwithstanding flawed design -- Owners and contractors failing to inform municipality that project at point where inspection required -- Whether or not duty of care on part of municipality to owners -- Whether or not municipality absolved of responsibility because of owners' failure to inform.

Respondent owners contracted with Gohmann, who in turn subcontracted with Barber, for the construction of a backyard retaining wall. Neither were engineers but both professed to have considerable experience in this type of construction work. The contractors, after the owners on their own initiative learned that a building permit was necessary, applied for a permit and presented the City's Chief Building Inspector (Phillips) with a rough sketch of the project. Phillips exercised his discretion, based on their experience and the relatively low cost of the wall, and granted a permit. Neither the owners nor the contractors advised the City as required by the by-law that the project had come to a stage where an inspection was required. The footings had been put in place, the concrete had been poured and the backfilling had been partially completed. The city inspector was not able to carry out the standard inspection which, if reasonably performed, would have revealed the flaws in design and construction.

The owners contacted the City when a large crack appeared in the wall. The city building inspectors attended and advised that further backfilling be delayed until the wall could be monitored in order to determine if there was any movement. The contractor finished the backfilling when he found that the wall had not moved in a twenty-day period. Some months later the wall collapsed.

In a first action, respondents brought suit against the contractor, the subcontractor, the city inspectors and the City. The neighbouring owners, Rothfield and Burtch, brought a second action against the respondent owners who in turn took third party proceedings against the parties they had sued. The trial judge found that the rudimentary sketch was an inadequate basis for issuing a building permit and that the City, through its building inspectors, was negligent in issuing one. In the first action, the trial judge found the defendants jointly and severally liable to the respondents for all of the damages, but as between them he attributed 60% of the responsibility to the contractor and subcontractor, and 40% to the City and its inspector. In the second action, the trial judge found the respondent owners liable for the damages suffered by the neighbours, but held the third parties jointly and severally liable to indemnify them, but as between themselves liability ...

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