Graham Construction & Engineering Ltd. v. Mont St. Joseph Home Inc. et al., 2004 SKQB 511

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 16, 2004
• Jurisdiction: Saskatchewan
• Citations: 2004 SKQB 511;(2004), 259 Sask.R. 202 (QB)

Graham Constr. v. Mont St. Joseph Home (2004), 259 Sask.R. 202 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. JA.064

Graham Construction & Engineering Ltd. (plaintiff/defendant by counterclaim/respondent) v. Mont St. Joseph Home Inc. (defendant/plaintiff by counterclaim) and AODBT Olfert Dressel Burnyeat Tracey Architects Ltd. (third party/applicant)

(2004 Q.B. No. 271; 2004 SKQB 511)

Indexed As: Graham Construction & Engineering Ltd. v. Mont St. Joseph Home Inc. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Baynton, J.

December 16, 2004.

Summary:

The plaintiff general contractor sued the defendant property owner for the balance owing on a construction contract. The defendant counterclaimed alleging breach of contract and negligence. The plaintiff (defendant by counterclaim) brought a third party claim for breach of contract and negligence against the defendant's architects/consultants (AODBT) without obtaining the leave of the court as required by s. 7 of the Contributory Negligence Act. AODBT sought to strike out the third party claim.

The Saskatchewan Court of Queen's Bench allowed the application without prejudice to the plaintiff to bring an application for leave respecting a fresh third party claim.

Practice - Topic 1132

Parties - Third party or subsequent party procedure - Third party notice - Requirement of right to contribution or indemnity - [See both Practice - Topic 1138 ].

Practice - Topic 1138

Parties - Third party or subsequent party procedure - Third party notice - Striking out of - The plaintiff general contractor sued the defendant property owner for the balance owing on a construction contract - The defendant counterclaimed alleging breach of contract and negligence - The plaintiff (defendant by counterclaim) brought a third party claim for breach of contract and negligence against the defendant's architects/consultants (AODBT) alleging faulty design plans and specification - AODBT sought to strike out the third party claim on the basis, inter alia, that there was no contractual relationship between AODBT and the plaintiff - The Saskatchewan Court of Queen's Bench held that there was no basis for the plaintiff's claim against AODBT for breach of contract - The portion of its third party claim brought in contract could not succeed - See paragraph 34.

Practice - Topic 1138

Parties - Third party or subsequent party procedure - Third party notice - Striking out of - The plaintiff general contractor sued the defendant property owner for the balance owing on a construction contract - The defendant counterclaimed alleging breach of contract and negligence - The plaintiff (defendant by counterclaim) brought a third party claim for, inter alia, negligence against the defendant's architects/consultants (AODBT) alleging faulty design plans and specification - The claim alleged an independent cause of action, but sought indemnification for any damages it was required to pay under the counterclaim - AODBT sought to strike the third party claim - It argued that it was the plaintiff's agent - It relied on a line of cases that held that there was no basis in law for a contributory negligence claim by a defendant against a plaintiff's agent (i.e., negligence of proposed third party imputed to plaintiff who was already a party) - The Saskatchewan Court of Queen's Bench held that it was not clear which line of cases applied - The court struck out the claim without prejudice to the plaintiff to bring an application for leave respecting a fresh third party claim.

Cases Noticed:

D.B. v. M.C. - see Bouchard v. Carruthers et al.

Bouchard v. Carruthers et al. (2001), 203 Sask.R. 308; 240 W.A.C. 308; 2001 SKCA 9, refd to. [para. 11].

A.C. v. H.I.S. (1994), 123 Sask.R. 241; 74 W.A.C. 241 (C.A.), refd to. [para. 11].

Marble v. Saskatchewan et al., [2004] 7 W.W.R. 580; 236 Sask.R. 14; 2003 SKQB 282, refd to. [para. 12].

Doepker Industries Ltd. v. K.B.A. Consultants Inc. et al. (2002), 226 Sask.R. 122; 2002 SKQB 480, refd to. [para. 12].

Cox et al. v. Board of Education of Battlefords School Division No. 118 (2002), 218 Sask.R. 64; 2002 SKQB 150, refd to. [para. 12].

Aquino et al. v. First Choice Capital Fund Ltd. et al. (1999), 179 Sask.R. 221 (Q.B.), refd to. [para. 12].

Saigon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 14].

Quintette Coal Ltd. v. Bow Valley Resource Services Ltd. (1986), 19 C.L.R. 153 (B.C.S.C.), refd to. [para. 14].

Bergeron (A.) & Fils Ltée v. Dominion Ready Mix Inc. and Bilodeau, [1975] 2 S.C.R. 345; 8 N.R. 513, refd to. [para. 15].

Yemen Salt Mining Corp. v. Rhodes-Vaughan Steel Ltd. (1976), 2 C.P.C. 318 (B.C.S.C.), refd to. [para. 15].

Westcoast Transmission Co. v. Interprovincial Steel and Pipe Corp. (1985), 60 B.C.L.R. 368 (S.C.), refd to. [para. 15].

Dufresne Engineering Co. and McNamara (Quebec) Ltd. v. Demers' Estate, [1979] 1 S.C.R. 146; 24 N.R. 91, refd to. [para. 16].

Edgeworth Construction Ltd. v. Lea (N.D.) & Associates Ltd. et al., [1993] 3 S.C.R. 206; 157 N.R. 241; 32 B.C.A.C. 221; 53 W.A.C. 221, refd to. [para. 21].

Skyseeds Ltd. v. McLean's Agra Centre Ltd. et al., [2000] Sask.R. Uned. 199; [2001] 2 W.W.R. 393; 2000 SKQB 384 (Q.B.), refd to. [para. 23].

British Columbia Ferry Corp. v. T&N plc, [1994] 3 W.W.R. 245 (B.C.S.C.), refd to. [para. 23].

Sorenson v. Abrametz and Wilkinson, [1988] 1 W.W.R. 609; 64 Sask.R. 224 (C.A.), refd to. [para. 24].

Board of Education for Saskatoon Catholic School St. Paul's Roman Catholic Separate School Division #20 v. Dunmac General Contractors Ltd. et al., [2002] Sask.R. Uned. 176; 2002 SKQB 404; 20 C.L.R.(3d) 295, refd to. [para. 25].

Morrow et al. v. Regina (City) et al. (1989), 79 Sask.R. 98 (Q.B.), refd to. [para. 28].

Remai Financial Corp. v. 568320 Saskatchewan Ltd. et al. (1996), 150 Sask.R. 292 (Q.B.), refd to. [para. 30].

Counsel:

R.C. Nicolay, for the applicant, AODBT Olfert Dressel Burnyeat Tracey Architects Ltd.;

J.D. Watson, for the respondent, Graham Construction & Engineering Ltd.;

M.J. Holash, for the plaintiff by counterclaim, Mont St. Joseph Home Inc.

This application was heard by Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following decision on December 16, 2004.