New Brunswick Telephone Co. v. John Maryon International Ltd. and John Maryon and Partners Ltd.; Maryon v. New Brunswick Telephone Co., (1982) 43 N.B.R.(2d) 469 (CA)

• Judge: Hughes, C.J.N.B., Richard, C.J.Q.B.D. and La Forest, J.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 10, 1982
• Jurisdiction: New Brunswick
• Citations: (1982), 43 N.B.R.(2d) 469 (CA);1982 CanLII 2906 (NB CA);43 NBR (2d) 469;141 DLR (3d) 193;24 CCLT 146;[1982] NBJ No 387 (QL);113 APR 469

NBTel v. Maryon Intl. Ltd. (1982), 43 N.B.R.(2d) 469 (CA);

    43 R.N.-B.(2e) 469; 113 A.P.R. 469

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

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

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New Brunswick Telephone Company Limited v. John Maryon International Limited and John Maryon and Partners Limited; Maryon v. New Brunswick Telephone Company Limited

(41/81/CA)

Indexed As: New Brunswick Telephone Co. v. John Maryon International Ltd. and John Maryon and Partners Ltd.; Maryon v. New Brunswick Telephone Co.

Répertorié: New Brunswick Telephone Co. v. John Maryon International Ltd. and John Maryon and Partners Ltd.; Maryon v. New Brunswick Telephone Co.

New Brunswick Court of Appeal

Hughes, C.J.N.B., Richard, C.J.Q.B.D. and La Forest, J.A.

September 10 and October 20, 1982.

Summary:

Résumé:

NBTel hired a designer to structurally design and a builder to construct a 350' concrete communications tower in Moncton. The tower developed severe cracking after construction. After concluding on the basis of independent appraisals that the tower was inadequately designed and constructed NBTel carried out remedial repairs, which it deemed necessary for the performance and safety of the tower. NBTel then brought an action for damages in contract and tort against the designer and builder. The builder added the concrete subcontractor as third party. The designer counterclaimed against NBTel for damages for infringement of his copyright in the design of the tower by the remedial repairs made.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported 33 N.B.R.(2d) 543; 80 A.P.R. 543, allowed the action in part against the designer on a finding that the defects in the tower resulted from various design deficiencies. The action was allowed only in contract and not tort. The action against the builder was dismissed, because the builder constructed the tower according to the design in a workmanlike manner using proper materials and NBTel did not rely on its skill and judgment respecting the design. The third party action against the concrete subcontractor was dismissed. The designer's counterclaim for breach of copyright was dismissed, because another architect was the author of the design.

The designer appealed on the issues of liability, the assessment of damages and the failure of the trial judge to award it costs on an issue on which it succeeded. NBTel cross-appealed on the issues of damages and interest.

The New Brunswick Court of Appeal dismissed the designer's appeal, except that it was awarded costs on the issue on which it was successful. The cross-appeal of NBTel was allowed only on interest and NBTel was awarded interest on the amount of damages from the date the action was commenced to the date of judgment on appeal.

The court held after exhaustively discussing the issue that the action lay in tort as well as contract. Because the cause of action in tort, unlike the action in contract, arose after the 1973 amendment to the Judicature Act respecting interest, interest could be awarded.

Actions - Topic 1502

Cause of action - When cause of action arises - Tort - The New Brunswick Court of Appeal held that a cause of action in tort arises when physical damage occurs, which in the case of a negligently constructed building is when the defective state of the structure becomes apparent - In the case of a cracked concrete tower the court held that a cause of action did not arise when the first small cracks appeared, but when large spalls and dangerously large cracks appeared and real concern began - See paragraphs 109 to 120.

Building Contracts - Topic 5502

Architects and engineers - Duties to owner - Respecting design - An architect designed a 350' concrete tower, which when constructed had various design defects, including inadequate steel reinforcement, failure to specify air-en-trained concrete, improper selection of shape factor in calculating wind loads, foundation under design, and failure to adequately provide for effect of temperature stresses in or waterproofing of platforms - The New Brunswick Court of Appeal affirmed the architect's liability and damages for breach of its duty to use the reasonable degree of care and skill, which would ordinarily be expected of professional engineers in the circumstances.

Contracts - Topic 4005

Remedies for breach - Negligent breach - Availability of tort action - The New Brunswick Court of Appeal thoroughly discussed the issue and held that, where a defendant is negligent in the performance of a contract, the plaintiff may bring an action for damages concurrently in tort and contract, unless the contract specifically precludes the remedy - See paragraphs 69 to 108.

Copyright - Topic 1944

Ownership of copyright by authorship - Author - What constitutes - The New Brunswick Court of Appeal held that the author of a work is the one who actually writes, draws or composes a work, and is not one who is a mere scribe or a person who merely gives ideas to another - The author is the person who expresses the ideas in an original or novel form - The court held that in the case of a physical structure the author is the person who devises the characteristics that make the structure artistically distinctive - See paragraphs 139 to 143.

Copyright - Topic 1944

Ownership of copyright by authorship - Author - What constitutes - The New Brunswick Court of Appeal held that the designer of a concrete tower was the author, not the architect who prepared detailed structural plans for the tower - See paragraphs 139 to 148.

Copyright - Topic 4550

Infringement of copyright - Acts not constituting an infringement - Repairs and necessary alterations to architectural works - A 350' concrete tower cracked and extensive remedial repairs were required to make it functional and safe - The New Brunswick Court of Appeal held that the remedial repairs did not constitute an infringement of copyright in the tower - The court held that there was an implied term in the design contract permitting repairs involving alteration of copyright materials to ensure the intended use and safety of the tower - See paragraphs 149 to 154.

Courts - Topic 558

Judges - Powers - Appointment of expert assistance - Rules of Court (N.B.), O. 35, r. 5 - In a complicated trial involving engineering problems a judge of the New Brunswick Court of Queen's Bench, Trial Division, appointed an expert in engineering to assist him in understanding the technical evidence - The New Brunswick Court of Appeal used the same expert to assist it on the appeal - See paragraph 155.

Damages - Topic 803

Assessment - Where amount of loss difficult to estimate or determine - The New Brunswick Court of Appeal in refusing to disturb a trial judge's assessment of damages stated that a party should not be deprived of damages on the ground that the exact quantum of the loss is difficult to ascertain - See paragraphs 43 to 46.

Damages - Topic 1042

Mitigation - In contract - Reasonable remedial measures - What constitutes - Severe cracking developed in a new 350' concrete tower - The owner formed the opinion that the cracking indicated dangerous design defects and repaired the tower to stiffen and strengthen it - The trial judge on the issue of reasonable remedial measures taken to mitigate the owner's damages found that the owner was entitled to recover for repair work to the cracks, but not for work to strengthen the tower for wind load, where it was adequately designed for wind load - The New Brunswick Court of Appeal affirmed the trial judge's judgment - See paragraphs 47 to 53.

Damages - Topic 1443

Special damages - Consultant's fees - The owner of a new concrete tower, which developed cracks, hired consultants to determine the extent of the damage and the remedial repairs necessary - The New Brunswick Court of Appeal affirmed the trial judge's treatment of the consultants' fees as special damages and not costs - See paragraph 138.

Interest - Topic 5001

Interest as damages - General principles - The New Brunswick Court of Appeal discussed the theory of awarding interest as damages - See paragraphs 123 to 127.

Interest - Topic 5004

Interest as damages - Discretion of judge - Judicature Act, R.S.N.B. 1973, c. J-2, s. 45(1) - NBtel brought an action against the designer of a tower for damages for design defects - The litigation was hard-fought and protracted, mostly because of the uncooperative conduct of NBTel - The action was allowed in part against the designer - The trial court refused to award NBTel interest on damages - The New Brunswick Court of Appeal awarded NBTel interest, applying the general rule after discussing the rationale for awarding interest as damages - See paragraphs 121 to 130.

Interest - Topic 5145

Interest as damages - Torts - Rate of interest applicable - The New Brunswick Court of Appeal awarded the owner of a defectively designed concrete tower interest on damages against the designer at the rate of 10.5% per annum from the date the action was brought (when the first demand for payment occurred) to the date of judgment on appeal - See paragraph 130.

Practice - Topic 7030

Costs - Party and party costs - Entitlement to - Where success or fault divided - The owner of a concrete tower, which developed cracks, brought an action against the designer for damages for the cracks and for inadequate design respecting wind load - The designer was found liable for damages for the cracks, but succeeded on the issue of wind load, which occupied a substantial part of the trial - The New Brunswick Court of Appeal held that the designer was entitled to costs on the issue of wind load - See paragraphs 131 to 137.

Practice - Topic 8800

Appeals - Duty of appeal court regarding fact findings by trial judge - The New Brunswick Court of Appeal in refusing to disturb a trial judge's judgment on liability for defective design of a tower held that a court of appeal should not disturb a trial judge's fact findings unless it is convinced that he was clearly wrong - See paragraphs 14 to 16.

Practice - Topic 8807

Appeals - Duty of appeal court regarding inferences from truthful evidence - The New Brunswick Court of Appeal held that, where a trial judge's inferences from primary facts are not dependent upon credibility or demeanor, a court of appeal is in as good a position as the trial judge to make the inferences - See paragraph 16.

Practice - Topic 8813

Appeals - Duty of appeal court regarding findings based on professional opinion - The New Brunswick Court of Appeal held that a trial judge's fact findings based in part on professional opinion should not be disturbed unless they are clearly wrong - See paragraphs 14 to 16.

Cases Noticed:

Kolesar Estate v. Joseph Brant Memorial Hospital (1977), 15 N.R. 302, appld. [para. 14].

Kenmore Fishing Club (1970) Ltd. v. Vaughan (1981), 34 N.B.R.(2d) 421; 85 A.P.R. 421, appld. [para. 14].

Whitehorse v. Jordan, [1981] 1 All E.R. 267, appld. [paras. 15, 16].

Bland v. Ross (1860), 14 Moo. P.C.C. 210, appld. [para. 15].

Workmen's Compensation Board v. Greer (1973), 42 D.L.R.(3d) 595, appld. [para. 16].

Wilson v. Swanson, [1956] S.C.R. 804, refd to. [para. 34].

McCain Produce Co. v. C.P. (1980), 30 N.B.R.(2d) 476; 70 A.P.R. 476, appld. [para. 45].

Banco de Portugal v. Waterlow, [1932] A.C. 452, appld. [para. 48].

Koufos v. Czarnikow Ltd., [1969] 1 A.C. 350, appld. [para. 51].

Acme Investments Ltd. v. York Structural Steel (1974), 9 N.B.R.(2d) 699; 1 A.P.R. 699, consd. [para. 60].

Bagot v. Stevens Scanlan & Co., [1964] 3 All E.R. 577, consd. [para. 67].

Letang v. Cooper, [1964] 2 All E.R. 929, consd. [para. 67].

Schwebel v. Telekes, [1967] 1 O.R. 541, consd. [paras. 67, 72].

Cartledge v. E. Jopling & Sons Ltd., [1963] 1 All E.R. 341, appld. [paras. 68, 110].

Royal Bank of Canada v. Clark and Watters (1977), 18 N.B.R.(2d) 643; 26 A.P.R. 643, affd. 22 N.B.R.(2d) 693; 39 A.P.R. 693 (N.B.C.A.), 30 N.R. 203; 27 N.B.R.(2d) 708; 60 A.P.R. 708 (S.C.C.), consd. [para. 71].

Roswell v. Pettit et al. (1968), 68 D.L.R.(2d) 202, consd. [para. 71].

Melanson and Melanson v. Leger, Creaghan and Savoie (1978), 24 N.B.R.(2d) 632; 48 A.P.R. 632, consd. [para. 71].

McCormack and Zatzman Limited v. McKelvey (1980), 33 N.B.R.(2d) 399; 80 A.P.R. 399, consd. [para. 71].

Viennault v. A Solicitor (1982), 36 N.B.R.(2d) 214; 94 A.P.R. 214, consd. [para. 71].

Groome v. Crocker, [1938] 2 All E.R. 394, consd. [para. 75].

Dominion Chain Co. v. Eastern Construction Co. (1976), 68 D.L.R.(3d) 385, affd. 19 N.R. 298; 84 D.L.R.(3d) 344 (S.C.C.), sub nom Giffels Associates Ltd. v. Eastern Construction Co., consd. [para. 76].

Dabous v. Zuliani (1976), 68 D.L.R.(3d) 414, consd. [para. 76].

Esso Petroleum Co. Ltd. v. Mardon, [1976] 2 All E.R. 5, consd. [paras. 77, 100].

M'Alister (or Donoghue) v. Stevenson, [1932] A.C. 562, consd. [para. 78].

J. Nunes Diamonds v. Dominion Electric Co., [1972] S.C.R. 769; 26 D.L.R.(3d) 699, consd. [para. 79].

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465, consd. [para. 79].

Elder, Dempster & Company, Limited et al. v. Paterson, Zochonis and Company, Limited, [1924] A.C. 522, consd. [para. 79].

Thomas Equipment Ltd. v. Sperry Rand Canada and Sperry Rand Corporation (1982), 40 N.B.R.(2d) 271; 105 A.P.R. 271, consd. [para. 79].

Hartman et al. v. The Queen (1973), 42 D.L.R.(3d) 488, consd. [para. 80].

Hall v. Brooklands Auto Racing Club, [1933] 1 K.B. 205, consd. [para. 80].

Giffels Associates Ltd. v. Eastern Construction Co. Ltd. et al. (1978), 84 D.L.R.(3d) 344; 19 N.R. 298, affing. 68 D.L.R.(3d) 385, sub nom Dominion Chain Co. v. Eastern Construction Co., consd. [para. 83].

Smith et al. v. McInnis et al. (1979), 91 D.L.R.(3d) 190; 25 N.S.R.(2d) 272; 36 A.P.R. 272; 19 N.R. 608, consd. [para. 84].

Webb Real Estate Ltd. v. McInnis (1979), 91 D.L.R.(3d) 190; 25 N.S.R.(2d) 272; 36 A.P.R. 272; 19 N.R. 608, consd. [para. 84].

Fraser-Reid et al. v. Droumtsekas et al. (1979), 29 N.R. 424, consd. [para. 86].

Messineo et al. v. Beale (1978), 86 D.L.R.(3d) 713, consd. [para. 87].

McGrath v. MacLean et al. (1979), 22 O.R.(2d) 784, consd. [para. 88].

Batty et al. v. Metropolitan Property Realization Ltd. et al., [1978] 2 All E.R. 445, consd. [paras. 88, 101].

Power v. Halley (1978), 88 D.L.R.(3d) 381; 18 Nfld. & P.E.I.R. 531; 47 A.P.R. 531, affd. (1981), 30 Nfld. & P.E.I.R. 476; 84 Nfld. & P.E.I.R. 476; 17 C.C.L.T. 182, consd. [para. 89].

Lockhart v. MacDonald (1980), 30 N.S.R.(2d) 671; 49 A.P.R. 671, revd. 42 N.S.R.(2d) 29; 77 A.P.R. 29, consd. [para. 89].

Surrey v. Carroll-Hatch & Associates (1979-80), 10 C.C. L.T. 226, consd. [para. 90].

Jacobson Ford-Mercury Sales Ltd. v. Sivertz (1979-80), 10 C.C.L.T. 274, consd. [para. 90].

Canadian Western Natural Gas Company Limited v. Pathfinder Surveys Ltd. (1980), 21 A.R. 459, folld. [para. 91].

Photo Production Ltd. v. Securicor Transport Ltd., [1980] 1 All E.R. 556, consd. [para. 92].

H. Parsons (Livestock) Ltd. v. Uttley Ingham & Co. Ltd., [1978] 1 All E.R. 525, consd. [para. 94].

Brown v. Boorman (1844), 11 Cl. & F. 1; 8 E.R. 1003, consd. [para. 97].

Courtenay v. Earle (1850), 10 C.B. 73; 138 E.R. 30, consd. [para. 97].

Midland Bank Trust Co. Ltd. et al. v. Hett, Stubbs & Kempt, [1978] 3 All E.R. 571, consd. [para. 101].

Dutton v. Bognor Regis United Building Co. Ltd., [1972] 1 All E.R. 462, consd. [para. 103].

Anns et al. v. London Borough of Merton, [1977] 2 All E.R. 492, consd. [para. 103].

Sparham-Souter and others v. Town and Country Developments (Essex) Ltd. and another, [1976] 2 All E.R. 65, consd. [para. 111].

Brook Enterprises Ltd. v. Wilding et al. (1974), 38 D.L.R.(3d) 472, consd. [para. 115].

Roncarelli v. Duplessis, [1959] S.C.R. 121, consd. [para. 123].

Riches v. Westminster Bank Limited, [1947] A.C. 390, consd. [para. 125].

Pickett v. British Rail Engineering Ltd., [1979] 1 All E.R. 774, consd. [para. 126].

Panchaud Frères v. Pagnon and Fratelli, [1974] 1 Lloyd's Rep. 394, consd. [para. 126].

Harbutt's "Plasticine" Ltd. v. Wayne Tank and Pump Co. Ltd., [1970] 1 Q.B. 447, consd. [para. 127].

General Tire & Rubber Co. v. Firestone Tyre & Rubber Co. Ltd., [1975] 1 W.L.R. 819, dist. [para. 128].

Reid, Hewitt and Company v. Joseph, [1918] A.C. 717, appld. [para. 134].

University of London Press, et al. v. University Tutorial Press Ltd., [1916] 2 Ch. 601, consd. [para. 143].

Commercial Signs v. General Motors Products of Canada Ltd. et al., [1937] 2 D.L.R. 310, consd. [para. 143].

Meikle et al. v. Maufe et al., [1941] 3 All E.R. 144, consd. [para. 144].

Netupsky v. Dominion Bridge, [1972] S.C.R. 368, consd. [para. 149].

Statutes Noticed:

Copyright Act, R.S.C. 1970, c. 30, sect. 2 [paras. 140, 148]; sect. 3(1), sect. 4, sect. 12(1) [para. 140]; sect. 12(7), sect. 20 [para. 152].

Judicature Act, R.S.N.B. 1973, c. J-2, sect. 45 [para. 63].

Judicature Act, R.S.N.B. 1952, c. 120, sect. 44 [para. 64].

Rules of Court (N.B.), O. 35, rule 5 [para. 155]; O. 58, rule 4 [para. 135]; O. 65, rule 1 [para. 133]; O. 65, rule 2 [paras. 133, 135].

Authors and Works Noticed:

Copinger and Skone James on Copyright (9th Ed.), p. 346 [para. 153].

Fitzherbert's Natura Brevium (circa 1555) [para. 77].

Fleming, The Law of Torts (5th Ed. 1977), pp. 176-177 [para. 107].

Fox, The Canadian Law of Copyright (2nd Ed.), p. 239 [para. 143].

Irvine, John, Contract and Tort: Troubles Along the Border (1979-80), 10 C.C.L.T. 281,299-300 [para. 94].

McGregor on Damages (14th Ed. 1980), c. 14 [para. 124].

Michaelides - Nouaros, George, Le Droit Moral de L'Auteur, (9th Ed.), p. 258 [para. 153].

Morgan, Brian, The Negligent Contract-Breaker (1980), 58 Can. Bar Rev. 299 [para. 107].

Orkin, The Law of Costs, p. 43 [para. 133].

Winfield on Tort (6th Ed.), pp. 803 et seq. [para. 97].

Winfield on Tort (7th Ed. 1963), p. 6 [para. 77].

Counsel:

Ian Outerbridge, Q.C., for John Maryon International Ltd. and John Maryon;

Donald Gillis, Q.C., and Thomas O'Neil, for the respondent.

This case was heard on December 1-4, 1981, at Fredericton, N.B., before HUGHES, C.J.N.B., RICHARD, C.J.Q.B.D. and La FOREST, J.A., of the New Brunswick Court of Appeal.

On September 10, 1982, La FOREST, J.A., delivered the judgment for the Court of Appeal with an Addendum delivered on October 21, 1982. A French language translation appears following the English judgment.