Brett-Young Seeds Ltd. et al. v. K.B.A. Consultants Inc. et al.,

• Jurisdiction: Manitoba
• Judge: Monnin, Hamilton and Freedman, JJ.A.
• Neutral Citation: 2008 MBCA 36
• Citation: 2008 MBCA 36,(2008), 225 Man.R.(2d) 291 (CA),291 DLR (4th) 688,[2008] 5 WWR 622,[2008] MJ No 107 (QL),225 Man R (2d) 291,68 CLR (3d) 170,(2008), 225 ManR(2d) 291 (CA),225 Man.R.(2d) 291,291 D.L.R. (4th) 688,[2008] M.J. No 107 (QL),225 ManR(2d) 291
• Date: 02 October 2007
• Court: Court of Appeal (Manitoba)

Brett-Young Seeds v. KBA Consultants (2008), 225 Man.R.(2d) 291 (CA);

      419 W.A.C. 291

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. AP.001

Brett-Young Seeds Limited and Brett-Young Seeds (Gilbert Plains) (plaintiffs/appellants) v. K.B.A. Consultants Inc. and David Wolfrom (defendants/respondents)

(AI 07-30-06671; 2008 MBCA 36)

Indexed As: Brett-Young Seeds Ltd. et al. v. K.B.A. Consultants Inc. et al.

Manitoba Court of Appeal

Monnin, Hamilton and Freedman, JJ.A.

March 31, 2008.

Summary:

The plaintiffs sued the defendant engineering firm and its president respecting the negligent design of hopper bottom cones. The defendants brought a motion for summary judgment.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at 202 Man.R.(2d) 252, dismissed the motion. The defendants appealed.

The Manitoba Court of Queen's Bench, in a decision reported at 216 Man.R.(2d) 59, allowed the appeal in part. The motions judge dismissed the defendants' motion for summary judgment to dismiss the plaintiffs' claim, except for their claim seeking general damages for loss of profits. The plaintiffs appealed. The defendants cross-appealed.

The Manitoba Court of Appeal allowed the appeal and dismiss the cross-appeal. The plaintiffs' claim, in its entirety, should go to trial.

Editor's Note: For related cases see 162 Man.R.(2d) 83, 166 Man.R.(2d) 33; 278 W.A.C. 33, 183 Man.R.(2d) 215 and 190 Man.R.(2d) 167; 335 W.A.C. 167.

Building Contracts - Topic 3724

Liability of builder - Duty to purchaser or subsequent purchasers - For negligence - The plaintiffs contracted with a company (Assié) to manufacture hopper bottom cones for use in silos - Assié retained the defendant engineering firm and its president to review Assié's design - The plaintiffs sued the defendants after experts advised the plaintiffs that there were substantial design and construction flaws with the cones - If silos were used as intended, it would put users at risk of serious bodily injury - Therefore, the plaintiffs were advised to only use the silos at one-third capacity until repairs could be completed - The defendants brought a motion for summary judgment - They argued that the plaintiffs had to show that the defendants' work caused actual damage to person or property or foreseeable and substantial danger to health and safety - As the silos were never used beyond one-third of their design capacity, there was no real or substantial danger - A motions judge agreed with a master that the plaintiffs had an arguable case for liability even though, no Canadian cases had held that a structure which can be partially utilized was found to constitute a "real and substantial danger" - The Manitoba Court of Appeal held that there was a genuine issue as to the defendants' liability - Further, the law respecting what constituted a real and substantial danger was developing - Such a question was not appropriate for summary judgment - It is for the trial judge, in the context of a full factual underpinning, to consider whether the "danger" met the threshold in the Winnipeg Condominium Corp. No. 36 case (S.C.C.) - See paragraphs 35 to 42.

Damages - Topic 531

Limits of compensatory damages - Remoteness - Torts - Recoverable damages - Purely economic loss - The plaintiffs contracted with a company (Assié) to manufacture hopper bottom cones - Assié retained the defendant engineering firm and its president to review Assié's design - The plaintiff sued the defendants for negligence - The defendants sought summary judgment - They argued that the plaintiffs did not have a cause of action in negligence for pure economic loss because they were unable to establish that the defendants' work caused actual damage or real and substantial danger to person and property (Winnipeg Condominium Corp. No. 36 case (S.C.C.)) - The cones were defective but could be used to partial capacity without endangering persons - Therefore, the plaintiffs were confined to their remedies in contract against Assié - A Master dismissed the motion - The motions judge allowed the defendant's appeal and granted summary judgment respecting the general damages claim - The Manitoba Court of Appeal allow the appeal - The law respecting the types of economic loss that were recoverable in negligence claims continued to develop - The motions judge erred in law in concluding that the claim for general damages for loss of profits did not raise a genuine issue for trial - It would be unjust to decide the claim without the full factual foundation of a trial - See paragraphs 35, 43 to 51 and 53.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Building Contracts - Topic 3724 and Damages - Topic 531 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Building Contracts - Topic 3724 and Damages - Topic 531 ].

Cases Noticed:

Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. et al., [1995] 1 S.C.R. 85; 176 N.R. 321; 100 Man.R.(2d) 241; 91 W.A.C. 241, refd to. [para. 2].

Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, refd to. [para. 16].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 20].

Blanco et al. v. Canada Trust Co. et al. (2003), 173 Man.R.(2d) 247; 293 W.A.C. 247; 2003 MBCA 64, refd to. [para. 23].

Somers Estate v. Maxwell (1995), 107 Man.R.(2d) 220; 109 W.A.C. 220 (C.A.), refd to. [para. 23].

Podkriznik v. Schwede (1990), 64 Man.R.(2d) 199 (C.A.), refd to. [para. 25].

Shell v. Barnsley et al. (2006), 208 Man.R.(2d) 264; 383 W.A.C. 264; 2006 MBCA 133, refd to. [para. 26].

Jane Doe et al. v. Manitoba (2005), 195 Man.R.(2d) 309; 351 W.A.C. 309; 2005 MBCA 109, refd to. [para. 26].

Valley Agricultural Society v. Behlen Industries Inc. et al. (2004), 184 Man.R.(2d) 263; 318 W.A.C. 263; 2004 MBCA 80, refd to. [para. 26].

Romano v. D'Onofrio et al., [2005] O.A.C. Uned. 526; 77 O.R.(3d) 583 (C.A.), refd to. [para. 26].

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. 27].

Telecommunication Employees Association of Manitoba Inc. et al. v. Manitoba Telecom Services Inc. et al. (2007), 214 Man.R.(2d) 284; 395 A.P.R. 284; 2007 MBCA 85, refd to. [para. 27].

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 27].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 33].

Roy v. Thiessen (2005), 257 Sask.R. 239; 342 W.A.C. 239; 2005 SKCA 45, refd to. [para. 40].

Mariani v. Lemstra (2004), 246 D.L.R.(4th) 489 (Ont. C.A.), refd to. [para. 40].

Blacklaws et al. v. 470433 Alberta Ltd. (2000), 261 A.R. 28; 225 W.A.C. 28; 187 D.L.R.(4th) 614; 2000 ABCA 175, refd to. [para. 40].

Sentinel Self-Storage Corp. v. Dyregrov et al. (2003), 180 Man.R.(2d) 85; 310 W.A.C. 85; 2003 MBCA 136, refd to. [para. 40].

Sable Offshore Energy Inc. et al. v. Ameron International Corp. et al. (2006), 249 N.S.R.(2d) 122; 792 A.P.R. 122; 57 C.L.R.(3d) 163; 2006 NSSC 332, refd to. [para. 41].

Zidaric v. Toshiba of Canada Ltd., [2000] O.T.C. Uned. E51; 5 C.C.L.T.(3d) 61 (Sup. Ct.), refd to. [para. 46].

Hughes v. Sunbeam Corp. (Canada) Ltd. et al. (2002), 165 O.A.C. 68; 61 O.R.(3d) 433 (C.A.), refd to. [para. 49].

Plas-Tex Canada Ltd. et al. v. Dow Chemical of Canada Ltd. et al. (2004), 357 A.R. 139; 334 W.A.C. 139; 245 D.L.R.(4th) 650; 2004 ABCA 309, refd to. [para. 50].

Authors and Works Noticed:

Feldthusen, Bruce, Winnipeg Condominium Corporation No. 36 v. Bird Construction Co.: Who Needs Contract Anymore? (1995), 25 Can. Bus. L.J. 143, pp. 145 [para. 48]; 149 [para. 47].

Counsel:

D.W. Leslie, for the appellants;

D.I. Marr and J.G.E. Young, for the respondents.

This appeal and cross-appeal were heard on October 2, 2007, by Monnin, Hamilton and Freedman, JJ.A., of the Manitoba Court of Appeal. The following decision of the court was delivered on March 31, 2008, by Hamilton, J.A.