Flynn v. Halifax (Regional Municipality) et al., (2005) 232 N.S.R.(2d) 293 (CA)

• Judge: Bateman, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 10, 2005
• Jurisdiction: Nova Scotia
• Citations: (2005), 232 N.S.R.(2d) 293 (CA);2005 NSCA 81

Flynn v. Halifax (2005), 232 N.S.R.(2d) 293 (CA);

 737 A.P.R. 293

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. MY.011

Fabian Flynn and Trudy Flynn (appellants) v. The Halifax Regional Municipality, a municipal body corporate, Donald Williams, James Joseph Dunleavy and Applewood Enterprises Limited, a body corporate (respondents)

(CA 214036; 2005 NSCA 81)

Indexed As: Flynn v. Halifax (Regional Municipality) et al.

Nova Scotia Court of Appeal

Bateman, Hamilton and Fichaud, JJ.A.

May 10, 2005.

Summary:

The plaintiffs hired a house designer to design an environmentally friendly house with passive solar heating. The plaintiffs hired a contractor to construct the house. The plaintiffs sued the contractor and its sole owner in negligence and contract for damages for, inter alia, defective construction in breach of the contract and the National Building Code. The plaintiffs also claimed in negligence against the municipality, alleging that its employee (building inspector) negligently failed to detect the defects and failed to require them to be remedied.

The Nova Scotia Supreme Court, in a judgment reported (2003), 219 N.S.R.(2d) 345; 692 A.P.R. 345, allowed the action. The contractor, its owner, and the municipality were jointly and severally liable for the repair of the defective 14 foot south wall of the home ($22,280). The contractor and its owner were jointly and severally liable for the repair of the defective slab ($56,200). Deducted from the above amounts were a proportionate share of $30,000 already received by the plaintiffs from the Atlantic Home Warranty Program and $5,000 received in settlement from the home designer. The plaintiffs appealed, submitting that the scope of negligence by the contractor and municipality was broader than found by the trial judge and that the quantum of damages was inadequate. The contractor and its owner cross-appealed. The municipality filed a Notice of Contention challenging the trial judge's determination of the scope of the duty of care owed by it.

The Nova Scotia Court of Appeal allowed the appeal in part, minimally increasing damages. The cross-appeal was allowed to the extent of finding that the trial judge erred in finding the owner personally liable. It was unnecessary to determine the exact scope of the municipality's duty of care.

Building Contracts - Topic 3422

Liability of builder - Defective workmanship or design - Defective construction - A house constructed by the defendant contractor suffered from two major defects (cracked slab floor and a structurally deficient 14 foot wall) - The wall, as designed, was insufficiently braced and supported - The contractor failed to note the defective design - The subcontractor installing the slab floor failed to properly install a vapour barrier, failed to correctly raise the wire mesh while the concrete was being poured, removed the thermal break between the house and garage, and failed to thicken the slab under a supporting wall - The contractor, who was under a duty to supervise the subcontractor, was absent from the work site and did not ensure the work was done properly - The trial judge held that the corporate contractor was liable in contract for the defective construction, which did not comply with the National Building Code - The work was not done in a "good and workmanlike manner" - The contractor's sole owner (one man company) was liable in negligence for failing to properly supervise the installation of the slab floor by the subcontractor - The Nova Scotia Court of Appeal held that the trial judge did not err in finding the contractor negligent - However, the trial judge erred in finding the owner personally liable in negligence for failing to supervise the concrete subcontractor - See paragraphs 32 to 35, 38 to 45, 92 to 96.

Building Contracts - Topic 3428

Liability of builder - Defective workmanship or design - Design - General - [See Building Contracts - Topic 3422 ].

Building Contracts - Topic 3548

Liability of builder - Duty to owner - Duty to supervise performance by subcontractor - [See Building Contracts - Topic 3422 ].

Land Regulation - Topic 3424

Land use control - Building inspectors - Negligence - [See Municipal Law - Topic 1804.2 ].

Municipal Law - Topic 1804.2

Liability of municipalities - Negligence - Standard of care - Building construction approval - Homeowners submitted that a municipality had a duty to ensure that a builder complied completely with the applicable building code - The Nova Scotia Court of Appeal stated that "the law is clear, however, that a municipality is not an insurer of the owner as to the compliance with the by-laws nor an insurer of the proper design and workmanship of projects undertaken by an owner ... Provided a municipality adopts and administers an inspection policy reasonably and in good faith, it is not bound to develop a scheme which will detect every deviation from code ... 'a municipality ... will only incur liability for such defects as it could reasonably be expected to have detected and to have ordered remedied'. The question of what defects the inspector could reasonably have detected is one of fact and reviewed on the standard of palpable and overriding error." - See paragraph 31.

Practice - Topic 8802

Appeals - General principles - Duty of appellate court regarding damage awards by a trial judge - The Nova Scotia Court of Appeal stated that "an appellate court may not substitute a figure of its own for that awarded by the trial judge simply because it would have awarded a different amount of damages if it had tried the case. Before the court can intervene, it must be satisfied that the trial judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one) or that the amount awarded is either so inordinately low or high that it must be a wholly erroneous estimate of the damage." - See paragraph 107.

Torts - Topic 7165

Joint and concurrent tortfeasors - Joint tortfeasors - Release of one - Effect of - The Nova Scotia Court of Appeal stated that "at common law, a release or discharge of a 'joint tortfeasor' could, with certain exceptions, release or discharge the other joint tortfeasors. This principle did not apply to release 'several tortfeasors' ..." - See paragraph 102.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 14].

Waxman et al. v. Waxman et al. (2004), 186 O.A.C. 201 (C.A.), refd to. [para. 14].

Anns v. Merton London Borough Council, [1977] 2 All E.R. 492 (H.L.), refd to. [para. 23].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 23].

Manolakos v. Vernon (City) et al., [1989] 2 S.C.R. 1259; 102 N.R. 249, refd to. [para. 23].

Ingles v. Tutkaluk Construction Ltd. et al., [2000] 1 S.C.R. 298; 251 N.R. 63; 130 O.A.C. 201, refd to. [para. 23].

ACA Cooperative Association Ltd. v. Associated Freezers of Canada Inc. et al. (1992), 113 N.S.R.(2d) 1; 309 A.P.R. 1 (C.A.), refd to. [para. 94].

Bransfield (S.) Ltd. v. Fletcher et al. (2003), 264 N.B.R.(2d) 366; 691 A.P.R. 366 (C.A.), refd to. [para. 100].

Nance v. British Columbia Electric Railway Co., [1951] 3 D.L.R. 705 (P.C.), refd to. [para. 107].

Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 S.C.R. 943; 277 N.R. 1; 153 O.A.C. 341, refd to. [para. 107].

Penvidic Contracting Co. v. International Nickel Co. of Canada Ltd., [1976] 1 S.C.R. 267; 4 N.R. 1, refd to. [para. 114].

Telford v. Holt (1987), 78 N.R. 321; 81 A.R. 385 (S.C.C.), refd to. [para. 129].

Statutes Noticed:

Building Code Act, R.S.N.S. 1989, c. 46, sect. 27 [para. 21].

Authors and Works Noticed:

Klar, Lewis N., Tort Law (3rd Ed. 2003), pp. 487, 488, 489 [para. 100]; 490 [paras. 100, 102]; 491 [para. 102].

Nova Scotia, Law Reform Commission, Joint Tortfeasors and the Common Law "Release Bar Rule" (2002), generally [para. 102].

Williams, Glanville, Joint Torts and Contributory Negligence: A Study of Concurrent Fault in Great Britain, Ireland and the Commonlaw Dominions (1951), pp. 1 [para. 99]; 3, 4 [para. 103]; 5, 37 [para. 102].

Counsel:

Appellants, on their own behalf;

Peter D. Darling, for the respondents, Halifax Regional Municipality and Donald Williams;

David Grant, for James Dunleavy and Applewood Enterprises Ltd.

This appeal and cross-appeal were heard on February 15, 2005, at Halifax, N.S., before Bateman, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On May 10, 2005, Bateman, J.A., delivered the following judgment for the Court of Appeal.