Mahoney v. Flynn, (2015) 374 Nfld. & P.E.I.R. 344 (NLTD(G))

• Judge: Adams, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 30, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 374 Nfld. & P.E.I.R. 344 (NLTD(G))

Mahoney v. Flynn (2015), 374 Nfld. & P.E.I.R. 344 (NLTD(G));

    1164 A.P.R. 344

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. DE.055

Thomas Mahoney (plaintiff) v. Wayne Flynn (first defendant) and Doreen Flynn (second defendant)

(201501G3600; 2015 NLTD(G) 189)

Indexed As: Mahoney v. Flynn

Newfoundland and Labrador Supreme Court

Trial Division (General)

Adams, J.

November 30, 2015.

Summary:

The plaintiff purchased a home from the defendants in August 2014. The heating system failed in January 2015. The plaintiff commenced an action for damages based on claims of negligence, negligent misrepresentation and breach of implied warranty. The defendants applied for an order requiring the plaintiff to provide answers to their Demand for Particulars.

The Newfoundland and Labrador Supreme Court, Trial Division (General), ordered the plaintiff to reply to two of the defendants' eight demands.

Practice - Topic 1907

Pleadings - Particulars - General - Nature of particulars which must be supplied - Mahoney purchased a home from the Flynns - The heating system failed - Mahoney commenced an action for damages based on claims of negligence, negligent misrepresentation and breach of implied warranty - The Statement of Claim stated that he incurred considerable repair costs because he had to bring the electrical system up to code in order to restore heat to the house - The Flynns issued a Demand for Particulars which asked "What exactly was the cost to the Plaintiff to repair and upgrade the electrical system?" - The Newfoundland and Labrador Supreme Court, Trial Division (General), found that the costs incurred were a head of special damage which ought to have been stated in the Statement of Claim so that the Flynns would know the value of the claim they had to meet so far as it could be ascertained - Contrary to Mahoney's assertion, it was not a matter of evidence that would be made up through invoices, contracts and viva voce evidence at trial - Mahoney was ordered to reply to the demand by stating the cost incurred at least to the date of the claim - See paragraphs 29 to 33.

Practice - Topic 1907

Pleadings - Particulars - General - Nature of particulars which must be supplied - Mahoney purchased a home from the Flynns - The heating system failed - Mahoney commenced an action for damages based on claims of negligence, negligent misrepresentation and breach of implied warranty - The Flynns issued a Demand for Particulars which asked "What is the basis in law for the claim for general damages?" and "What specifically are the special damages claimed by the Plaintiff?" - The Newfoundland and Labrador Supreme Court, Trial Division (General), ordered Mahoney to reply to these demands - The Flynns were entitled to know the case they had to meet - They needed to know whether Mahoney was claiming general damages in contract, tort, negligence or some other cause of action - They should not have to guess the legal underpinnings of Mahoney's claim - It should be clearly stated in the pleadings - See paragraphs 42 to 47.

Practice - Topic 1910

Pleadings - Particulars - General - Particulars which will not be ordered - Mahoney resided primarily in Alberta - He purchased a home from the Flynns in Newfoundland to use as a vacation home - The heating system failed - Mahoney commenced an action for damages based on claims of negligence, negligent misrepresentation and breach of implied warranty - The Flynns issued a Demand for Particulars which asked "Where precisely is the Plaintiff's primary residence in Alberta; what is the Plaintiff's occupation; and does the Plaintiff's work involve 'turn-arounds' whereby the Plaintiff works for a period of time in Alberta after which he returns to Newfoundland and Labrador?" - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that Mahoney was not required to answer this demand as it was in the nature of evidence which was not necessary for the Flynns to mount a defence - The information sought did not help to define the issues - The Statement of Claim already clearly stated the use to which Mahoney intended to put the property - In response to the Flynn's argument that they required the information for their claim that there was no recognized cause of action for breach of implied warranty in the sale of real property, the court held that the Flynns would have to apply to strike the cause of action under rule 14.24 - See paragraphs 9 to 13.

Practice - Topic 1910

Pleadings - Particulars - General - Particulars which will not be ordered - Mahoney purchased a home from the Flynns - The heating system failed - Mahoney commenced an action for damages based on claims of negligence, negligent misrepresentation and breach of implied warranty - The Flynns issued a Demand for Particulars which asked what actions Mahoney personally took to attempt to repair or restart the heating system before he contacted the repair company - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that Mahoney was not required to answer this demand - The information sought was in the nature of evidence more properly framed as questions in discovery or through interrogatories following the close of pleadings - See paragraphs 14 to 18.

Practice - Topic 1910

Pleadings - Particulars - General - Particulars which will not be ordered - Mahoney purchased a home from the Flynns - The heating system failed - Mahoney commenced an action for damages based on claims of negligence, negligent misrepresentation and breach of implied warranty - The Flynns issued a Demand for Particulars which asked "Did the Plaintiff engage a qualified heating professional to inspect the heat pump system as recommended by the home inspector? Did the home inspector test the heat pump system in preparation for the home inspection report? What if any issues did the home inspection report identify regarding the heat pump system and associated electrical system?" - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that Mahoney was not required to answer this demand - The entire request was evidentiary in nature - If a report was written, it would be provided by way of document disclosure - Even if there wasn't a written report, the Flynns would have the right to question any such inspector on discovery following the close of pleadings - See paragraphs 19 to 22.

Practice - Topic 1910

Pleadings - Particulars - General - Particulars which will not be ordered - Mahoney purchased a home from the Flynns - The heating system failed - Mahoney commenced an action for damages based on claims of negligence, negligent misrepresentation and breach of implied warranty - The Flynns issued a Demand for Particulars which asked (a) whether Mahoney engaged a qualified electrician to inspect the electrical system as recommended by the home inspector, and (b) what issues the home inspection report identified regarding the electrical system - The Flynns submitted that the categorization of any of the defects as latent or patent was important in order for them to properly draft their defence - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that Mahoney was not required to answer this demand as the information requested was in the nature of evidence - Mahoney did not have to provide information in particulars which might help the Flynns frame their defence - He had alleged latent defects - It would be up to the Flynns to claim that any defects were patent and therefore did not give rise to a cause of action - See paragraphs 23 to 28.

Practice - Topic 1910

Pleadings - Particulars - General - Particulars which will not be ordered - Mahoney purchased a home from the Flynns - The heating system failed - Mahoney commenced an action for damages based on claims of negligence, negligent misrepresentation and breach of implied warranty - The Statement of Claim stated that the Flynns concealed the true nature of the heat pump and electrical system from him - The Flynns issued a Demand for Particulars which asked "What positive steps does the Plaintiff allege the Defendants took to conceal the true nature of the heat pump and electrical systems?" - Mahoney replied by stating that the Flynns consistently ran the heat pump system with the emergency back-up system manually disconnected from the main electrical panel so that the heat pump would not overload the inadequate electrical system of the property - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that Mahoney's reply set out the factual basis of the case the Flynns had to meet - No further particulars were required - See paragraphs 34 to 37.

Practice - Topic 1910

Pleadings - Particulars - General - Particulars which will not be ordered - Mahoney purchased a home from the Flynns - The heating system failed - Mahoney commenced an action for damages based on claims of negligence, negligent misrepresentation and breach of implied warranty - The Statement of Claim stated that "the loss and damage experienced as a result of the latent defects was serious and rendered the Property unfit for its intended use and that the latent defects rendered the House itself dangerous." - The Flynns issued a Demand for Particulars which asked "What intended use of the property did the Plaintiff communicate to the Defendants? Who determined the house itself was dangerous and on what basis?" - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that Mahoney was not required to provide any further particulars - Regarding the first question, Mahoney's Statement of Claim and Reply stated that he used the home as a "vacation home" and "a part-time residence throughout the year" - The second question was in the nature of evidence to be elicited through discovery procedures - See paragraphs 38 to 41.

Practice - Topic 1935

Pleadings - Particulars - Bars to granting of order - Where particulars provided are adequate - [See first, fifth and sixth Practice - Topic 1910 ].

Practice - Topic 1990

Pleadings - Particulars - Particulars of particular matters - Damages - [See both Practice - Topic 1907 ].

Cases Noticed:

Duffett v. Canada (Attorney General) (2004), 235 Nfld. & P.E.I.R. 321; 699 A.P.R. 321; 2004 NLSCTD 58, refd to. [para. 5].

Seascape 2000 Inc. v. Canada (Attorney General) (2009), 292 Nfld. & P.E.I.R. 85; 902 A.P.R. 85; 2009 NLTD 195, refd to. [para. 5].

Counsel:

Sarah G. Fitzgerald, for the plaintiff;

John F.E. Drover, for the defendants.

This application was heard at St. John's, N.L., on November 30, 2015, before Adams, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following oral reasons for judgment on the same date.