Boehner (Doug) Trucking & Excavating Ltd. v. United Gulf Developments Ltd. et al., (2007) 258 N.S.R.(2d) 41 (CA)

• Judge: McDonald, C.J.N.S., Cromwell and Saunders, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 06, 2007
• Jurisdiction: Nova Scotia
• Citations: (2007), 258 N.S.R.(2d) 41 (CA);2007 NSCA 92

Boehner Trucking v. United Gulf Dev. (2007), 258 N.S.R.(2d) 41 (CA);

    824 A.P.R. 41

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. SE.016

W. Eric Whebby Limited, a body corporate (appellant) v. Doug Boehner Trucking & Excavating Limited, a body corporate, United Gulf Developments Limited, a body corporate, Greater Homes Inc., a body corporate, and Garden Crest Developments Limited, a body corporate (respondents) and United Gulf Developments Limited, a body corporate, Greater Homes Inc., a body corporate, and Garden Crest Developments Limited, a body corporate (respondents/appellants by cross- appeal)

(CA 274238; 2007 NSCA 92)

Indexed As: Boehner (Doug) Trucking & Excavating Ltd. v. United Gulf Developments Ltd. et al.

Nova Scotia Court of Appeal

McDonald, C.J.N.S., Cromwell and Saunders, JJ.A.

September 6, 2007.

Summary:

Contaminated soil was used in a residential subdivision developed by United Gulf and constructed by Greater Homes. The soil was excavated from Garden Crest's property, a downtown Halifax site that was being redeveloped, by Whebby and delivered for use by the landscape contractor (Boehner). The soil was not tested by anyone until it had been partly used and neighbours complained. The soil was removed at a significant remediation cost to United Gulf, whose only contract was with Boehner. At issue was the liability of the various parties involved in the remediation of the contaminated soil.

The Nova Scotia Supreme Court, in a judgment reported (2006), 243 N.S.R.(2d) 265; 772 A.P.R. 265, held that all of the parties contributed to the loss. The court held that liability was determinable under the law of negligence, although an argument could be made in nuisance and under the Sale of Goods Act. The court determined the liability of the respective parties and apportioned liability between Boehner, Whebby and Garden Crest. Whebby's liability was $221,510, which it was ordered to pay into court. Whebby appealed and applied for a stay of the judgment pending appeal, submitting that the failure of the recording system at trial (no trial transcript) was an exceptional circumstance warranting a stay because of the likelihood of a new trial. United Gulf, Greater Homes and Garden Crest cross-appealed.

The Nova Scotia Court of Appeal, per Cromwell, J.A., in a judgment reported (2006), 249 N.S.R.(2d) 326; 792 A.P.R. 326, dismissed the application. Boehner, the only respondent not to file a cross-appeal, applied under rule 62.31(7)(e) for an order extending the time to file and serve a notice of cross-appeal.

The Nova Scotia Court of Appeal, per Saunders, J.A., in a judgment reported (2007), 251 N.S.R.(2d) 138; 802 A.P.R. 138, allowed the application and granted an extension. The appeal and cross-appeals were subsequently heard on its merits.

The Nova Scotia Court of Appeal allowed the appeal and cross-appeals in part and remitted the matter for a new trial on certain issues. Particularly, there was to be a new trial on Whebby's negligence, Boehner's contributory negligence and Garden Crest's negligence. Also to be retried was United Gulf's negligence claim against Whebby, but not its nuisance claim. A new trial was required on Boehner's s. 17(b) Sale of Goods Act mechantable quality. United Gulf's negligence was not to be retried, but whether it mitigated its loss was.

Practice - Topic 9224

Appeals - New trials - Grounds - General - [See Torts - Topic 795 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - Contaminated soil was used in a residential subdivision developed by United Gulf and constructed by Greater Homes - The soil was excavated from Garden Crest's property, a downtown Halifax site that was being redeveloped - Whebby excavated the fill and delivered it for use by the landscape contractor (Boehner) - As was the customary trade practice, the soil was not tested by anyone until it had been partly used and neighbours complained - The soil was removed at a significant remediation cost to United Gulf, whose only contract was with Boehner - At issue was the liability of the various parties involved in the removal of the contaminated soil - The Nova Scotia Court of Appeal held that the trial judge did not err in finding sufficient proximity to ground a duty of care by Whebby to both Boehner and United Gulf - See paragraphs 38 to 49.

Torts - Topic 795

Negligence - Construction operations - Contaminated soil or fill - Contaminated soil was used in a residential subdivision developed by United Gulf and constructed by Greater Homes - The soil was excavated from Garden Crest's property, a downtown Halifax site that was being redeveloped - Whebby excavated the fill and delivered it for use by the landscape contractor (Boehner) - As was the customary trade practice, the soil was not tested by anyone until it had been partly used and neighbours complained - The soil was removed at a significant remediation cost to United Gulf, whose only contract was with Boehner - At issue was the liability of the various parties involved in the removal of the contaminated soil - The trial judge held that all of the parties contributed to the loss through negligence, contributory negligence or a failure to mitigate the loss - Garden Crest negligently failed to inform Whebby of known contamination - Whebby negligently failed to monitor the quality of the fill it was excavating, knowing that Boehner required clean fill - Boehner negligently failed to monitor the fill arriving and used the contaminated fill - United Gulf failed to mitigate its loss by delaying the halting of the delivery and use of the contaminated fill once it had knowledge - The court apportioned the liability between Boehner, Whebby and Garden Crest - Although an argument could be made in nuisance and the Sale of Goods Act, liability was more appropriately determined under the law of negligence - The Nova Scotia Court of Appeal ordered a new trial on certain issues because of the trial judge's critical errors - Whebby and Boehner were found negligent on the basis of inadmissible hearsay evidence - Boehner's claim against Whebby for breach of the implied condition of merchantable quality (Sale of Goods Act) was dismissed without clear reasons - United Gulf was found negligent even though no negligence claim was made against it - The finding that Garden Crest was negligent was contrary to the trial judge's own fact findings on Garden Crest's knowledge.

Torts - Topic 1005

Nuisance - General principles and definitions - Nuisance defined - Whebby dumped contaminated soil (fill) on United's property - United submitted that the trial judge erred in rejecting its nuisance claim - The Nova Scotia Court of Appeal held that "nuisance is concerned with unreasonable interference with the enjoyment of land resulting from another's conduct elsewhere. The interference with the plaintiff's enjoyment of land must be indirect rather than direct" - The court held that where Whebby directly interfered with United's land by dumping contaminated fill on that land, the trial judge was correct to find that there could be no liability in nuisance - See paragraphs 124 to 133.

Torts - Topic 1270

Nuisance - Particular nuisances - General - Soil contamination - [See Torts - Topic 795 ].

Cases Noticed:

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [para. 40].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 41].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 41].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 59].

Murphy (Ken) Enterprises Ltd. v. Commercial Union Assurance Co. of Canada et al. (2005), 231 N.S.R.(2d) 327; 733 A.P.R. 327; 2005 NSCA 53, refd to. [para. 75].

Borgo Upholstery Ltd. et al. v. Canada (Attorney General) (2004), 220 N.S.R.(2d) 302; 694 A.P.R. 302; 2004 NSCA 5, refd to. [para. 109].

Baron v. Caragata (2004), 245 Sask.R. 208 (Q.B.), refd to. [para. 109].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 110].

Royal Anne Hotel Co. v. Ashcroft, [1979] 2 W.W.R. 462 (B.C.C.A.), refd to. [para. 127].

Hunter et al. v. Canary Wharf Ltd.; Hunter et al. v. London Docklands Development Corp., [1997] A.C. 655; 215 N.R. 1 (H.L.), refd to. [para. 127].

Southport Corp. v. Esso Petroleum Co., [1954] 2 All E.R. 561 (C.A.), revd. [1956] A.C. 218 (H.L.), refd to. [para. 128].

Porter (J.P.) Co. v. Bell et al., [1955] 1 D.L.R. 62 (N.S.S.C.), refd to. [para. 128].

Jackson v. Drury Construction Co. (1974), 4 O.R.(2d) 735 (C.A.), refd to. [para. 128].

Corkum v. Lohnes (1981), 43 N.S.R.(2d) 477; 81 A.P.R. 477 (C.A.), refd to. [para. 128].

Phase Three Properties Ltd. v. 529952 Ontario Ltd. et al. (1996), 1 O.T.C. 48; 28 C.L.R.(2d) 53 (Gen. Div.), refd to. [para. 129].

R. & G. Realty Management Inc. v. Toronto (City) (2005), 19 M.P.L.R.(4th) 250 (Ont. Sup. Ct.), refd to. [para. 129].

Tock v. St. John's Metropolitan Area Board, [1989] 2 S.C.R. 1181; 104 N.R. 241; 82 Nfld. & P.E.I.R. 181; 257 A.P.R. 181, refd to. [para. 131].

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1, refd to. [para. 144].

Authors and Works Noticed:

Bilson, Beth, The Canadian Law of Nuisance (1991), pp. 10 to 14 [para. 128]; 14 [para. 127].

Bridge, Michael G., Sale of Goods (1988), p. 511 [para. 119].

Buckley, R.A., The Law of Nuisance (2nd Ed. 1996), pp. 5, 6 [para. 128].

Clerk, John F., and Lindsell, The Law of Torts (19th Ed. 2006), ss. 20-02 [paras. 130, 132]; 20-51 [para. 128].

Fleming, John G., The Law of Torts (9th Ed. 1998), pp. 115 [para. 44]; 464, 465 [para. 130].

Fridman, Gerald Henry Louis, The Sale of Goods in Canada (5th Ed. 2004), pp. 177 to 180 [para. 109].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), pp. 559, 560 [para. 127]; 569, 572, 573 [para. 125].

Linden, Allen M., Studies in Canadian Tort Law (1968), p. 338 [para. 130].

McGregor, Harvey, Damages (17th Ed. 2003), para. 7-017 [para. 140].

McLaren, John P.S., Nuisance in Canada, in Linden, Allen M., Studies in Canadian Tort Law (1968), p. 338 [para. 130].

Ogus, A.I., The Law of Damages (1973), p. 85 [para. 140].

Street, Harry, The Law of Torts (8th Ed. 1988), pp. 314, 315 [para. 127].

Waddams, Stephen M., The Law of Damages (Rev. 2nd Ed. 1991) (2006 Looseleaf Update), paras. 15.10 to 15.130 [para. 140].

Counsel:

George W. MacDonald, Q.C., Christopher Wilson and Kenneth Jennings (student), for the appellant;

Michael Wood, Q.C., Cory Withrow and R. Paul Thorne (student), for the respondent/appellant by cross-appeal, Doug Boehner Trucking & Excavating Ltd.;

David Farrar, Q.C., and Sara Scott, for the respondents/appellants by cross-appeal, United Gulf Developments Ltd. and Greater Homes Inc.;

David Coles, Q.C., and Cheryl Clark, for the respondent/appellant by cross-appeal, Garden Crest Developments Ltd.

This appeal and cross-appeals were heard on June 14, 2007, before MacDonald, C.J.N.S., Cromwell and Saunders, JJ.A., of the Nova Scotia Court of Appeal.

On September 6, 2007, Cromwell, J.A., delivered the following judgment for the Court of Appeal.