Laidar Holdings Ltd. v. Lindt & Sprungli (Canada) Inc. et al., (2012) 316 B.C.A.C. 42 (CA)

• Judge: Newbury, Frankel and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 16, 2011
• Jurisdiction: British Columbia
• Citations: (2012), 316 B.C.A.C. 42 (CA);2012 BCCA 22

Laidar Holdings v. Lindt & Sprungli (2012), 316 B.C.A.C. 42 (CA);

    537 W.A.C. 42

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. JA.037

Laidar Holdings Ltd. (respondent/plaintiff) v. Lindt & Sprungli (Canada) Ltd. (respondent/defendant) and DTZ Barnicke Limited (appellant/third party) and DTZ Barnicke Vancouver Ltd. and Colliers Macaulay Nickolls Inc. and Warrington PCI Management, a Partnership (respondents/third parties) and Blake, Cassels & Graydon LLP (respondent/respondent)

(CA038943; 2012 BCCA 22)

Indexed As: Laidar Holdings Ltd. v. Lindt & Sprungli (Canada) Inc. et al.

British Columbia Court of Appeal

Newbury, Frankel and Bennett, JJ.A.

January 17, 2012.

Summary:

The plaintiff (Laidar) leased property to the defendant (Lindt, a chocolatier). The lease provided that the defendant was permitted to use the leased premises for the sale and distribution of chocolate, a use that later became apparent was not permitted under the existing zoning of the property. Because of the zoning difficulties, Lindt never took possession or made payments under the lease. Laidar sued Lindt for arrears of rent. Lindt counterclaimed for breach of lease and tortious misrepresentation. Lindt also filed third party notices against its leasing agents (DTZ and DTZ Barnicke Vancouver Ltd). Laidar filed notices against its property management firm (Warrington) and its leasing agent (Colliers). DTZ sought leave to file a fourth party notice against Lindt's legal counsel (Blakes) et al.

The British Columbia Supreme Court, in a decision reported [2011] B.C.T.C. Uned. 325, dismissed DTZ's application to join Blakes as a fourth party. The judge held that no third party or fourth party claim would lie against another when the defence was one the defendant could raise directly against the plaintiff. Any duty owing in law by Blakes to Lindt was to Lindt alone. DTZ appealed.

The British Columbia Court of Appeal dismissed the appeal.

Practice - Topic 1120

Parties - Third party or subsequent party procedure - When available - General - The British Columbia Court of Appeal stated that the rule governing third party notices was well settled in British Columbia - The rule was described by McLachlin, J.A., (as she then was) in Adams v. Thompson, Berwick, Pratt & Partners (BCCA 1987): "It thus may be stated with confidence, in my view, that a third party claim will not lie against another person with respect to an obligation belonging to the plaintiff which the defendant can raise directly against the plaintiff by way of defence. Where the only negligence alleged against the third party is attributable to the plaintiff, there is no need for third party proceedings since the defendant has his full remedy against the plaintiff ... On the other hand, where the pleadings and the alleged facts raise the possibility of a claim against the third party for which the plaintiff may not be responsible, the third party claim should be allowed to stand" - See paragraph 1.

Practice - Topic 1120

Parties - Third party or subsequent party procedure - When available - General - The British Columbia Court of Appeal reviewed the historical evolution of third party claims and the rules governing them, noting that the law in British Columbia was well settled (e.g., Adams v. Thompson, Berwick, Pratt & Partners (BCCA 1987)) - See paragraphs 4 to 23 - The court also reviewed the Ontario case law on this issue, including 478649 Ontario Ltd. v. Corcoran (Ont. C.A. 1994) - See paragraphs 36 to 45.

Practice - Topic 1120

Parties - Third party or subsequent party procedure - When available - General - The plaintiff (Laidar) leased property to the defendant (Lindt), but it later became apparent that the zoning was an issue - Thus Lindt never took possession or made lease payments - Laidar sued Lindt for arrears of rent - Lindt counterclaimed for breach of lease and tortious misrepresentation - Lindt third partied its leasing agent (DTZ) - DTZ sought leave to file a fourth party notice against Lindt's legal counsel (Blakes), claiming that Blakes failed to confirm the zoning situation - The applications judge refused leave - Applying Adams v. Thompson et al. (BCCA 1987), the judge held that no subsequent claim would lie against another when the defence was one the defendant could raise directly against the plaintiff - DTZ appealed, arguing that s. 4 of the Negligence Act created an independent statutory right as between tortfeasors to claim contribution from any other person who might have been at fault - The British Columbia Court of Appeal dismissed the appeal - Here, the only cause of action alleged against Blakes was the breach of a duty owed only to Lindt - The lesson of Adams was that at least under the Negligence Act, the breach of such a duty did not give DTZ an "independent right of contribution" against Blakes - If the law firm was negligent in advising its client, DTZ would "have a complete remedy" by way of reduction of Lindt's damages for which DTZ could be liable - A third party claim was unnecessary - See paragraphs to 24 to 35.

Torts - Topic 7377

Joint and concurrent tortfeasors - Contribution between tortfeasors - Claim for - General - [See third Practice - Topic 1120 ].

Cases Noticed:

Adams v. Thompson, Berwick, Pratt & Partners (1987), 15 B.C.L.R.(2d) 51 (C.A.), appld. [para. 1].

478649 Ontario Ltd. v. Corcoran et al. (1994), 74 O.A.C. 152; 118 D.L.R.(4th) 682 (C.A.), refd to. [para. 2].

McNaughton v. Baker (1988), 25 B.C.L.R. 17 (C.A.), refd to. [para. 4].

Yemen Salt Mining Corp. v. Rhodes-Vaughan Steel Ltd. (1976), 2 C.P.C. 318 (B.C.S.C.), refd to. [para. 10].

Westcoast Transmission Co. v. Interprovincial Steel & Pipe Corp. (1985), 60 B.C.L.R. 368 (S.C.), refd to. [paras. 10, 18].

Sodican (B.C.) Inc. v. Bancorp Financial Ltd., [1987] B.C.J. No. 2909, refd to. [para. 12].

Doyle et al. v. Bell Pole Co. et al., [1993] B.C.T.C. Uned. B71; 86 B.C.L.R.(2d) 40 (S.C. Master), refd to. [para. 12].

TNR Gold Corp. et al. v. MIM Argentina Exploraciones S.A. et al., [2011] B.C.T.C. Uned. 243; 2011 BCSC 243, refd to. [para. 12].

Alkan Air Ltd. v. Johnson & Higgins, [1990] Y.J. No. 122 (S.C.), refd to. [para. 12].

Gelt Holdings Ltd. et al. v. Pannell et al., [1995] B.C.T.C. Uned. 875 (S.C.), refd to. [para. 12].

Quintette Coal Ltd. v. Bow Valley Resource Services Ltd. (1986), 19 C.L.R. 153 (B.C.S.C.), refd to. [para. 17].

Bergeron (A.) & Fils Ltée v. Dominion Ready Mix Inc. and Bilodeau, [1975] 2 S.C.R. 345; 8 N.R. 513, refd to. [para. 18].

Vermont Construction Inc. v. Beatson, [1977] 1 S.C.R. 768; 8 N.R. 271 (Eng.); 8 N.R. 519 (Fr.), refd to. [para. 18].

Candler v. Crane, Christmas & Co., [1951] 2 K.B. 164 (C.A.), refd to. [para. 18].

Hedley Byrne v. Heller, [1964] A.C. 465 (H.L.), refd to. [para. 18].

Junior Books Ltd. v. Veitchi Ltd., [1982] 3 All E.R. 201 (H.L.), refd to. [para. 18].

Donahue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 18].

North Fraser Harbour Commission v. Hardy BBT Ltd. et al., [1992] B.C.T.C. Uned. F06 (S.C.), refd to. [para. 19].

G.W.L. Properties Ltd. et al. v. W.R. Grace & Co. of Canada Ltd. et al., [1992] B.C.T.C. Uned. 46, refd to. [para. 19].

Cardar Investments Ltd. et al. v. Thorne Riddell (1989), 36 O.A.C. 280; 71 O.R.(2d) 29 (Div. Ct.), refd to. [para. 20].

New Caledonia (College) v. Kraft Construction Co. et al., [2007] B.C.T.C. Uned. F26; 2007 BCSC 1408, refd to. [para. 29].

Kamahap Enterprises Ltd. v. Chu's Central Market Ltd. (1989), 64 D.L.R.(4th) 167 (B.C.C.A.), refd to. [para. 31].

Strata Plan LMS 1751, Owners v. Scott Management Ltd. et al. (2010), 286 B.C.A.C. 123; 484 W.A.C. 123; 2010 BCCA 192, refd to. [para. 34].

Macchi S.p.A. v. New Solution Extrusion Inc. et al., [2007] O.T.C. Uned. J09, affd. [2008] O.A.C. Uned. 410; 2008 ONCA 586, refd to. [para. 38].

Davy Estate v. Egan et al. (2009), 255 O.A.C. 165; 2009 ONCA 763, refd to. [para. 38].

Statutes Noticed:

Negligence Act, R.S.B.C. 1996, c. 333, sect. 1(1), sect. 1(2), sect. 1(3), sect. 4(1), sect. 4(2) [para. 5].

Rules of Court (B.C.), Supreme Court Civil Rules, B.C. Reg. 168/2009, rule 3-5 [para. 7].

Rules of Court (B.C.), Supreme Court Rules, rule 22 [para. 6].

Supreme Court Civil Rules (B.C.) - see Rules of Court (B.C.), Supreme Court Civil Rules.

Supreme Court Rules (B.C.) - see Rules of Court (B.C.), Supreme Court Rules.

Authors and Works Noticed:

Jackson & Powell, Professional Negligence (3rd Ed. 1992), generally [para. 37].

Salmond and Heuston, The Law of Torts (20th Ed. 1992), generally [para. 37].

Counsel:

S.R. Andersen, for the appellant;

M.G. Armstrong, for the respondent, Blake, Cassels & Graydon LLP.

This appeal was heard on December 16, 2011, in Vancouver, British Columbia, before Newbury, Frankel and Bennett, JJ.A., of the British Columbia Court of Appeal. The following decision was delivered for the court by Newbury, J.A., on January 17, 2012.