Flynn v. Halifax (Regional Municipality) et al., (2003) 219 N.S.R.(2d) 345 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 30, 2003
• Jurisdiction: Nova Scotia
• Citations: (2003), 219 N.S.R.(2d) 345 (SC);2003 NSSC 253

Flynn v. Halifax (2003), 219 N.S.R.(2d) 345 (SC);

 692 A.P.R. 345

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. JA.002

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

(SH 154747; 2003 NSSC 253)

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

Nova Scotia Supreme Court

LeBlanc, J.

December 18, 2003.

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 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.

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 Nova Scotia Supreme Court 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.

Building Contracts - Topic 3428

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

Building Contracts - Topic 3543

Liability of builder - Duty to owner - Duty to owner respecting faulty design - The Nova Scotia Supreme Court stated that "a contractor may be liable where the architect's plans are so defective that an experienced contractor ought to have recognized obvious defects. In these circumstances the contractor's obligation to carry out the work which will perform the intended duty or function overrides the obligation to comply with the plans and specifications." - See paragraph 92.

Building Contracts - Topic 3548

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

Company Law - Topic 312

Nature of corporations - Lifting the corporate veil - Principals - "Directing mind and will" of company - The plaintiffs wanted Dunleavy to build their house - They contracted with Applewood Enterprises, Dunleavy's one-man company - When they sued Applewood and Dunleavy in contract and negligence for defective work, Dunleavy submitted that the contract was with his company and only the company could be liable - The Nova Scotia Supreme Court held that Dunleavy was subject to liability in negligence as the "directing mind" of Applewood - See paragraphs 94 to 97.

Land Regulation - Topic 3424

Land use control - Building inspectors - Negligence - A house constructed by the contractor (one man company) contained two structural defects that violated the National Building Code (slab floor and a 14 foot wall) - The slab was negligently constructed by subcontractors negligently supervised by the contractor - The 14 foot wall, as was apparent in the plans and on an on-site inspection, did not have sufficient bracing and support - The homeowners claimed in negligence against the municipality, alleging that the building inspector was negligent in failing to note the defects in the plans and when he inspected the house - The Nova Scotia Supreme Court held that a municipality was liable only where the defects were reasonably detectable by the exercise of reasonable care in the inspection process - Here, the defects in the wall should have been identified in the plans and/or during the inspection process - The failure to note the contravention of the National Building Code constituted negligence - The municipality was jointly and severally liable with the contractor for the repair cost of the wall - See paragraphs 105 to 144.

Municipal Law - Topic 1804.2

Liability of municipalities - Negligence - Standard of care - Building construction approval - [See Land Regulation - Topic 3424 ].

Cases Noticed:

Nowland v. Brunswick Construction Ltd., [1975] 2 S.C.R. 523; 2 N.R. 164; 8 N.B.R.(2d) 76, refd to. [para. 92].

ACA Cooperative Association Ltd. v. Associated Freezers of Canada Inc. et al. (No. 3) (1992), 113 N.S.R.(2d) 1; 309 A.P.R. 1 (C.A.), refd to. [para. 96].

Markland Associates Ltd. v. Lohnes (1973), 11 N.S.R.(2d) 181; 5 A.P.R. 181 (T.D.), refd to. [para. 102].

Girroir v. Cameron (1999), 176 N.S.R.(2d) 275; 538 A.P.R. 275 (S.C.), refd to. [para. 102].

Anns v. Merton London Borough Council, [1977] 2 All E.R. 492 (H.L.), refd to. [para. 107].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 107].

Manolakos v. Vernon (City), [1989] 2 S.C.R. 1259; 102 N.R. 249, refd to. [para. 108].

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. 112].

Beutel Goodman Real Estate Group Inc. v. Halifax (City) (1998), 169 N.S.R.(2d) 248; 508 A.P.R. 248 (S.C.), refd to. [para. 118].

Lyons v. Grainger (1994), 16 C.L.R.(2d) 279 (Ont. Gen. Div.), refd to. [para. 120].

Hilton Canada Inc. v. Magil Construction Ltd. et al. (1998), 71 O.T.C. 81; 47 M.P.L.R.(2d) 182 (Gen. Div.), refd to. [para. 122].

Cumiford v. Powell River (District), [2001] B.C.T.C. 960; 21 M.P.L.R.(3d) 45 (S.C.), refd to. [para. 127].

Kirby v. Coquitlam (City) (1996), 37 M.P.L.R.(3d) 113 (B.C.S.C.), refd to. [para. 131].

Nova Scotia (Minister of Housing) v. Langille and Roberts (1994), 133 N.S.R.(2d) 219; 380 A.P.R. 219 (C.A.), refd to. [para. 134].

Penvidic Contracting Co. v. International Nickel Co. of Canada Ltd., [1976] 1 S.C.R. 267; 4 N.R. 1, refd to. [para. 164].

White and White v. Pellerine (1988), 84 N.S.R.(2d) 341; 213 A.P.R. 341 (C.A.), refd to. [para. 168].

Statutes Noticed:

Halifax (Regional Municipality) Bylaws, Building Bylaw (Feb. 1993), s. 9.1(bb) [para. 87].

Authors and Works Noticed:

Canada Mortgage and Housing Corporation, Radon: A Guide for Canadian Homeowners (1997), p. 3 [para. 52].

Hudson, Building and Engineering Contracts (10th Ed. 1970), pp. 291 to 292 [para. 92].

Counsel:

Joseph M.J. Cooper, Q.C., Maureen Walden-Ryan and Melanie O'Rourke, for the plaintiffs;

Peter Darling and Matthew Williams, for the defendants;

Shawna Henderson, self-represented;

James Dunleavy, self-represented and on behalf of Applewood Enterprises.

This action was heard between March 4 and April 30, 2003, at Halifax, N.S., before LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following judgment on December 18, 2003.