Ingles v. Tutkaluk Construction Ltd. et al., (2000) 251 N.R. 63 (SCC)

• Judge: L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 02, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 251 N.R. 63 (SCC);2000 SCC 12;183 DLR (4th) 193;130 OAC 201;[2000] SCJ No 13 (QL);AZ-50069850;1 CLR (3d) 1;[2000] 1 SCR 298;[2000] ACS no 13;JE 2000-523;46 OR (3d) 736;49 CCLT (2d) 1;95 ACWS (3d) 369;8 MPLR (3d) 1;251 NR 63

Ingles v. Tutkaluk Constr. Ltd. (2000), 251 N.R. 63 (SCC)

MLB Headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2000] N.R. TBEd. MR.002

James Ingles (appellant) v. The Corporation of the City of Toronto (respondent)

(26634; 2000 SCC 12)

Indexed As: Ingles v. Tutkaluk Construction Ltd. et al.

Supreme Court of Canada

L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.

March 2, 2000.

Summary:

The plaintiff hired a contractor for struc­tural renovations to his home (underpinning the foundation). The plaintiff permitted the contractor to complete the foundation work before obtaining a building permit. When the city building inspectors arrived, it was diffi­cult to determine whether the underpinning work was carried out in accordance with the building permit. No defects could be seen. The underpinning was defective and the basement subsequently leaked. The plaintiff sued the contractor in contract and the city in negligence for the repair costs.

The Ontario Court (General Division), in a judgment reported 18 C.L.R.(2d) 67, found the contractor liable in contract (80%) and the city liable in negligence (20%). The city's liability was reduced a further 30% for the plaintiff's contributory negligence. Total liability was accordingly apportioned 6% to the plaintiff, 14% to the city and 80% to the contractor. The city appealed.

The Ontario Court of Appeal, in a judg­ment reported 107 O.A.C. 310, allowed the appeal and dismissed the action as against the city. The plaintiff's conduct in permitting structural work before a permit was obtained (making it difficult, if not impossible, for inspectors to check the work) took the plain­tiff out of the class of persons to whom the city owed a duty of care. The plaintiff had no reasonable expectation that he could rely on the building inspectors to discover any defects by the contractor. The plaintiff knowingly flouted the building regulations by permitting the underpinning work without a permit. The plaintiff appealed.

The Supreme Court of Canada allowed the appeal and restored the trial judge's findings and apportionment of fault. The plaintiff's negligence did not absolve the city of its duty of care. The city, which had the au­thority and means to ensure the under­pinnings complied with building code re­quirements, was negligent in relying on the contractor's word that the work met the requirements. The plaintiff's negligence, although reducing the city's liability, was not of the required nature to totally absolve the city of liability.

Land Regulation - Topic 3424

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

Land Regulation - Topic 3425

Land use control - Building inspectors - Duties - Scope of - The Supreme Court of Canada stated that an owner's negligence in permitting a contractor to do foundation work without first obtaining a permit, making it more difficult for building in­spectors to determine if the work complied with the permit requirements, did not absolve the city of it's duty to take rea­sonable care in its inspection - The court stated that the owner's negligence "created a complete defence for municipalities that could be used to militate against a finding of negligence only in the rarest of circum­stances, namely, when the owner-builder's conduct was such that a court could only conclude that he or she was the sole source of his or her own loss. This complete defence may encompass those situations where an owner-builder never applied for a building permit, or never notifies the inspector of the need for an inspection, or those situations where the inspector receives notification so late that it would be impossible, upon full exercise of the powers granted under the governing legis­lation, to discover any hidden defects. In other cases ... it will still be open to mu­nicipalities to show that a plaintiff was contributorily negligent, and to seek an apportionment of the damages according­ly." - See paragraph 39.

Municipal Law - Topic 1804.2

Liability of municipalities - Negligence - Standard of care - Building construction approval - The plaintiff hired a contractor for structural renovations (underpinning the foundation) - The plaintiff permitted the contractor to complete the work before obtaining a building permit - When the city building inspectors arrived, it was difficult to determine whether the under­pinning work met the building permit re­quirements - No defects were seen and the inspector relied on the contractor's word that work was in compliance with the permit - The underpinning was defective and the basement leaked - The plaintiff sued the city in negligence for the repair costs - The trial judge found the city negli­gent and 20% at fault (reduced to 14% for the plaintiff's 30% contributory negli­gence) and the contractor 80% at fault - The Ontario Court of Appeal dismissed the action as against the city on the ground that the plaintiff's negligence in permitting work before a permit was obtained nega­tived the city's duty of care - The Supreme Court of Canada restored the trial judge's decision and apportionment of fault - The plaintiff's contributory negligence did not absolve the city of its duty to take rea­sonable care in its inspection - The trial judge did not err in finding negligence - The inspector should not have taken the word of a contractor (who he knew disre­garded permit requirement) and the nature of the work (potential for harm great) called for further inspection - The inspec­tor had authority to have an engineer deter­mine whether the underpinning met the permit requirements - See paragraphs 21 to 60.

Municipal Law - Topic 1804.2

Liability of municipalities - Negligence - Standard of care - Building construction approval - The Supreme Court of Canada stated that "while the municipal inspector will not be expected to discover every latent defect in a project, or every de­rogation from the building code standards, it will be liable for those defects that it could reasonably be expected to have detected and to have ordered remedied" - See paragraph 20.

Municipal Law - Topic 1819

Liability of municipalities - Negligence - Defences - Contributory negligence - [See first Municipal Law - Topic 1804.2 ].

Torts - Topic 6603

Defences - Contributory negligence - Ap­portionment of fault - General - The Supreme Court of Canada stated that "when there are two or more tortfeasors, and a plaintiff has also been found negli­gent, the proper approach to apportionment of fault is to first reduce the extent of the recoverable damages in proportion with the plaintiff's negligence, and then to appor­tion the remaining damages between the defendants, in accordance with their fault" - See paragraph 55.

Cases Noticed:

Manolakos v. Vernon (City) et al., [1989] 2 S.C.R. 1259; 102 N.R. 249, consd. [para. 9].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 14].

Hospitality Investments Ltd. v. Lord (Everett) Building Construction Ltd. et al. (1993), 143 N.B.R.(2d) 258; 366 A.P.R. 258 (Q.B.), refd to. [para. 15].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 16].

Anns v. Merton London Borough Council, [1977] 2 All E.R. 492 (H.L.), refd to. [para. 16].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 18].

Acrecrest Ltd. v. Hattrell & Partners, [1983] 1 All E.R. 17 (C.A.), refd to. [para. 34].

Hall v. Hebert, [1993] 2 S.C.R. 159; 152 N.R. 321; 26 B.C.A.C. 161; 44 W.A.C. 161, refd to. [para. 35].

Hospitality Investments Ltd. v. Lord (Everett) Building Construction Ltd., [1996] 3 S.C.R. 605; 203 N.R. 252; 182 N.B.R.(2d) 157; 463 A.P.R. 157, not folld. [para. 36].

McCrea v. White Rock, [1975] 2 W.W.R. 593 (B.C.C.A.), dist. [para. 37].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 42].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 51].

Fitzgerald v. Lane et al., [1988] 2 All E.R. 961; 89 N.R. 383 (H.L.), refd to. [para. 55].

Colonial Coach Lines Ltd. v. Bennet and Canadian Pacific Railway Co., [1968] 1 O.R. 333, refd to. [para. 55].

Leischner v. West Kootenay Power & Light Co. (1986), 24 D.L.R.(4th) 641 (B.C.C.A.), refd to. [para. 58].

Menow v. Honsberger Ltd., [1970] 1 O.R. 54 (H.C.), affd. [1971] 1 O.R. 129 (C.A.), affd. [1974] S.C.R. 239, refd to. [para. 59].

Statutes Noticed:

Building Code Act, R.S.O. 1990, c. B-13, sect. 3(1), sect. 3(2), sect. 5(1), sect. 6(1)(a), sect. 6(3), sect. 6(5), sect. 8(1), sect. 8(2), sect. 8(3), sect. 8(5), sect. 8(6), sect. 9(1), sect. 9(2), sect. 10, sect. 11(1) [para. 22].

Negligence Act, R.S.O. 1990, c. N-1, sect. 1, sect. 3 [para. 55].

Rules of the Supreme Court of Canada, SOR/83-74, sect. 29(1), sect. 29(3) [para. 53].

Counsel:

Philip Anisman and Barbara J. Murchie, for the appellant;

Diana W. Dimmer and Naomi Brown, for the respondent.

Solicitors of Record:

Philip Anisman, Toronto, Ontario, for the appellant;

City Solicitor, Toronto, Ontario, for the respondent.

This appeal was heard on October 8, 1999, before L'Heureux-Dubé, Gonthier, Mc­Lachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.

On March 2, 2000, Bastarache, J., delivered the following judgment in both official languages for the Supreme Court of Canada.