University of Regina v. Pettick et al., (1991) 90 Sask.R. 241 (CA)

• Court: Court of Appeal (Saskatchewan)
• Case Date: February 18, 1991
• Jurisdiction: Saskatchewan
• Citations: (1991), 90 Sask.R. 241 (CA)

Regina Univ. v. Pettick (1991), 90 Sask.R. 241 (CA)

MLB headnote and full text

F. Fentiman & Sons Ltd. (appellant) v. The University of Regina, Joseph Pettick, Haddin, Davis & Brown Co. Limited, Reid, Crowther & Partners Limited, David York (respondents)

(No. 9344)

Indexed As: University of Regina v. Pettick et al.

Saskatchewan Court of Appeal

Vancise and Sherstobitoff, JJ.A., and MacLeod, J.(ad hoc)

February 18, 1991.

Summary:

The University of Regina brought an action in negligence for damages respecting the design and construction of the gymnasia roofs in the physical education building on campus. The university sued the architect, the structural engineers, the contractors, the fabricator and certain named individuals.

The Saskatchewan Court of Queen's Bench, in a decision reported in 51 Sask.R. 270, allowed the university's action against the fabricator of the frame components of the roof and assessed damages accordingly. The fabricator appealed the finding of liability against it. The university appealed against the dismissal of its action against the architect and structural engineers.

The Saskatchewan Court of Appeal, MacLeod, J. (ad hoc), dissenting, dismissed the fabricator's appeal, but allowed the university's appeal in part, holding the structural engineers also liable for the university's loss. The Court of Appeal apportioned liability equally between the fabricator and the engineers.

Actions - Topic 1625

Cause of action - Torts - Tort v. contractual cause of action - The Saskatchewan Court of Appeal stated that formerly the existence of a contractual relationship supplanted any tort duty that might otherwise exist - The court recognized that since then a different view has been taken of the relationship between contract and tort - A contractual relationship may give rise to tort liability - However, the nature and scope of the tort duty cannot be defined by the specific contents of the contract, but must be defined according to tort principles - In this sense, the tort duty must be independent of the contract - Further, a tort claim cannot be used to circumvent exclusions or limitations of liability contained in a contract - See paragraphs 80 to 83.

Building Contracts - Topic 5495

Architects and engineers - Duties to owner - General - The Saskatchewan Court of Appeal held that based on the Hedley Byrne principle structural engineers may be liable for misrepresentations concerning (a) the suitability of testing procedures; (b) the need for testing at all and (c) the general adequacy of a design, amongst other matters - See paragraphs 72 to 79.

Building Contracts - Topic 5502

Architects and engineers - Duties to owner - Respecting design - A university sued in negligence for damages respecting the design and construction of the gymnasia roofs in the physical education building on campus - The Saskatchewan Court of Appeal affirmed that the architects discharged their duty of care to the university respecting the space frame component of the roofs by engaging competent experts, the structural engineers, and the fabricator with its consultant, an expert in space frames - See paragraph 115.

Building Contracts - Topic 5502

Architects and engineers - Duties to owner - Respecting design - A university sued in negligence for damages respecting the design and construction of the gymnasia roofs in the physical education building on campus - The Saskatchewan Court of Appeal affirmed that the structural engineers were entitled to rely on the fabricator and its expert consultant respecting the design of the space frame components of the roofs - The court, however, further held that the university having requested testing, the engineers (having undertaken to provide specifications) had a duty to ensure adequate testing or to warn the university if they could not do so - The court found the engineers in breach of their duty to supply these professional services - See paragraphs 116 to 124.

Damages - Topic 531

Limits of compensatory damages - Remoteness - Torts - Recoverable damages - Purely economic loss - The Saskatchewan Court of Appeal discussed whether purely economic loss was recoverable in tort actions - The court characterized three types of pure economic loss - The court concluded that economic loss was recoverable in tort when it flowed from a category of duty which properly encompassed economic loss, such as a duty to warn rather than a duty to manufacture without defects - See paragraphs 47 to 56 - The court further summarized the Canadian law respecting tort - See paragraphs 86 to 91.

Damages - Topic 1020

Mitigation - In tort - Damage to land and buildings - A university sued in negligence for damages respecting the design and construction of the gymnasia roofs in the physical education building on campus - Instead of using a less expensive external truss, which the university rejected for aesthetic reasons, the university completely replaced the roof - The Saskatchewan Court of Appeal refused to interfere with the trial judge's finding that the university did mitigate its damages - See paragraphs 132 to 134.

Damages - Topic 1022

Mitigation - In tort - Reasonable remedial measures - What constitute - [See Damages - Topic 1020].

Evidence - Topic 3689

Documentary evidence - Private documents - Photographs, movies, video tapes, etc. - Computer printout - MacLeod, J. (ad hoc), of the Saskatchewan Court of Appeal, in a dissenting judgment, discussed the admission of computer evidence - See paragraphs 270 to 281.

Evidence - Topic 7002

Opinion evidence - Expert opinion - Acceptance, rejection and weight to be given to expert opinion - An appellant challenged a trial judge's acceptance of an expert's opinion because although it was based on the expert's own report, the report contained computer calculations neither prepared by nor understood by the expert - The Saskatchewan Court of Appeal affirmed that the evidence was admissible - See paragraphs 23, 29 to 33.

Evidence - Topic 7010

Opinion evidence - Expert evidence - Admissibility of information used to support opinion - The Saskatchewan Court of Appeal stated that the facts upon which an expert bases his opinion must, subject to certain exceptions, be proved in evidence - See paragraph 30.

Evidence - Topic 7010

Opinion evidence - Expert evidence - Admissibility of information used to support opinion - The Saskatchewan Court of Appeal held that an expert's opinion was admissible although based on hearsay, because it had inherent in it a sufficient circumstantial guarantee of trustworthiness which justified the receipt of the expert opinion without independent proof of the underlying facts - See paragraph 31.

Evidence - Topic 7012

Opinion evidence - Expert evidence - Basis for opinion - The Saskatchewan Court of Appeal stated that the facts upon which an expert bases his opinion must, subject to certain exceptions, be proved in evidence - See paragraph 30.

Evidence - Topic 7012

Opinion evidence - Expert evidence - Basis for opinion - The Saskatchewan Court of Appeal held that an expert's opinion was admissible although based on hearsay, because it had inherent in it a sufficient circumstantial guarantee of trustworthiness which justified the receipt of the expert opinion without proof of the underlying facts - See paragraph 31.

Evidence - Topic 7012

Opinion evidence - Expert evidence - Basis for opinion - [See Evidence - Topic 7002].

Limitation of Actions - Topic 3103

Actions in tort - Negligence - When time begins to run - The physical education building was built on a university campus in 1966 - The university commenced a negligence action in 1980 for damages respecting the design and construction of the gymnasia roofs - The Limitation of Actions Act prescribed a six year limitation period for actions for damages arising from negligence - The Saskatchewan Court of Appeal affirmed that since the damage did not manifest itself and was not known to the university until 1979, the cause of action did not arise until then and the university's action was commenced in time - See paragraph 39.

Practice - Topic 8800

Appeals - Duty of appellate court respecting findings of fact by a trial judge - The Saskatchewan Court of Appeal held that a court of appeal must extend substantial deference to the findings of fact made by a trial judge based on the credibility of witnesses, and that it is entitled to interfere only where there is palpable and overriding error - See paragraph 21.

Practice - Topic 8813

Appeals - Duty of appellate court respecting findings based on professional opinion - A trial judge preferred the opinion of one expert over that of another, who had formidable and superior qualifications - The Saskatchewan Court of Appeal held that the judge's choice was a matter of fact which was not reviewable on appeal, there being no palpable or overriding error in the choice - See paragraph 36.

Torts - Topic 16

Negligence - Standard of care - Where special skill or competence required - The Saskatchewan Court of Appeal discussed the type of liability established by the Hedley Byrne case, which exists where one undertakes to exercise special skill on behalf of another in a situation in which that person may reasonably rely on the other to take care - In such a situation, a recovery may be had for loss, economic or otherwise - The court noted that this principle has now been extended to cover negligence in the provision of professional services (i.e. special skills) generally - See paragraphs 57 to 71.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See Torts - Topic 16].

Torts - Topic 4228

Suppliers of goods - Warranties - Scope of - A university sued in negligence for damages respecting the design and construction of the gymnasia roofs in the physical education building on campus - The fabricator of the space frame components was liable for breach of duty in supplying its professional services in designing its professional services in designing and manufacturing the components - The Saskatchewan Court of Appeal held that a one year warranty given to the university by the fabricator did not exclude further liability in negligence - See paragraphs 125 to 131.

Torts - Topic 4332

Suppliers of goods - Negligence - Manufacturers - Defective design or manufacture - A university sued in negligence for damages respecting the design and construction of the gymnasia roofs in the physical education building on campus - The fabricator of the space frame components of the roofs also undertook to provide expert and professional services respecting design of the space frame - The Saskatchewan Court of Appeal held that the fabricator breached its duty of care and was professionally negligent in supplying such services - The court also affirmed negligence in testing the joint assemblies - See paragraphs 98 to 114.

Cases Noticed:

Board of Education of Long Lake School Division No. 30 v. Schatz and Irwin and Saskatchewan Government Insurance, [1986] 5 W.W.R. 355; 49 Sask.R. 244, appld. [para. 21].

Lensen v. Lensen, [1987] 2 S.C.R. 672; [1988] 1 W.W.R. 190; 79 N.R. 334; 64 Sask.R. 6, appld. [para. 21].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 30].

Rieger v. Burgess, [1988] 4 W.W.R. 577; 66 Sask.R. 1 (C.A.), refd to. [para. 30].

R. v. Jordan (1984), 39 C.R.(3d) 50, refd to. [para. 31].

Neilsen v. Kamloops, City of, Hughes and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, consd. [para. 39].

Central Trust Company v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, consd. [para. 39].

Desormeau v. Holy Family Hospital, [1989] 5 W.W.R. 186; 76 Sask.R. 241, refd to. [para. 39].

Anns v. Merton London Borough Council, [1977] 2 All E.R. 492 (H.L.), consd. [para. 48].

Hofstrand Farms Ltd. v. B.D.C. Ltd., [1986] 1 S.C.R. 228; 65 N.R. 261, consd. [para. 48].

Haig v. Bamford et al., [1977] 1 S.C.R. 466; 9 N.R. 43, refd to. [para. 51].

Canadian National Railway Co. v. Norsk Pacific Steamship Co. Ltd. (1990), 104 N.R. 321 (C.A.), refd to. [para. 51].

Caltex Oil (Aust.) Pty. Ltd. v. The Dredge "Willemstad" (1976), 11 A.L.R. 227 (Aust. H.C.), refd to. [para. 51].

D. and F. Estates Ltd. v. Church Commissioners for England, [1988] 2 All E.R. 992 (H.L.), refd to. [para. 51].

Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, refd to. [para. 51].

Ultramares Corp. v. Touche, (1931), 174 N.E. 441 (N.Y.C.A.), refd to. [para. 52].

Junior Books v. Veitchi Co. Ltd., [1982] 3 All E.R. 201, refd to. [para. 52].

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), consd. [para. 55].

East River Steamship Corporation v. Trans America Delaval Inc. (1986), 106 S.Ct. 2295 (U.S.S.C.), refd to. [para. 57].

Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp, [1979] 1 Ch. 384, refd to. [para. 67].

Tracy v. Atkins (1979), 105 D.L.R.(3d) 632; 16 B.C.L.R. 223, refd to. [para. 68].

Murphy v. Brentwood District Council, [1990] 2 All E.R. 908; 113 N.R. 81, refd to. [para. 69].

District of Surrey v. Carroll-Hatch & Associates (1979), 101 D.L.R.(3d) 218 (B.C.C.A.), consd. [para. 73].

Independent Broadcasting Authority v. EMI Electronics Ltd. and BICC Construction Ltd. (198O), 14 B.L.R. 1 (H.L.), consd. [para. 75].

Unit Farm Concrete Products Ltd. v. Eckerlea Acres Ltd. (1983), 5 C.L.R. 149 (Ont. H.C.J.), consd. [para. 77].

Sedco et al. v. Kelly (William) Holdings Ltd. et al., [1990] 4 W.W.R. 134; 83 Sask.R. 33 (C.A.), refd to. [para. 78].

Logan Lake (Dist.) v. Rivtow Industries Ltd., [1990] 5 W.W.R. 526 (B.C.C.A.), refd to. [para. 78].

J. Nunes Diamonds Ltd. v. Dominion Electric Protection Company, [1972] S.C.R. 769, refd to. [para. 81].

Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1, refd to. [para. 89].

Giffels Associates Ltd. v. Eastern Construction Co., [1978] 2 S.C.R. 1346; 19 N.R. 298, refd to. [para. 126].

John Maryon International Ltd. et al. v. New Brunswick Telephone Co. Ltd. (1982), 43 N.B.R.(2d) 469; 113 A.P.R. 469; 141 D.L.R.(3d) 193, refd to. [para. 322].

Department of the Environment (U.K.) v. Bates (Thomas) & Sons Ltd., [1990] 2 All E.R. 943; 113 N.R. 119, refd to. [para. 363].

Statutes Noticed:

Limitation of Actions Act, R.S.S. 1978, c. L-15, sect. 3(1) [para. 4]; sect. 3(1)(e), sect. 3(1)(f) [para. 39].

Authors and Works Noticed:

Bender, David, Computer Law - Litigation, pp. 5-36 [para. 274]; 5-37 [para. 276].

Christie, Agatha, An Overdose of Death (New Dell Ed.), p. 139 [para. 182].

Mann, J. Fraser, Computer Technology and the Law in Canada, pp. 179-189 [para. 271]; 190 [para. 277].

Wilberforce, Lord, Transcripts of the 1984 International Building Officials World Conference, Saskatoon, Saskatchewan, June 3-8, 1984, p. 288 [para. 424].

Counsel:

R.H. McKercher, Q.C., and B.D. Hunter for the appellant;

G.J. Kuski, Q.C., and Pam Lothian, for the University of Regina;

M.O. Laprairie, for Joseph Pettick;

E.R. Gritzfeld, Q.C., and Carol Skotnitsky, for Haddin, Davis & Brown Co. Limited et al.

These appeals were heard before Vancise and Sherstobitoff, JJ.A., and MacLeod, J. (ad hoc), of the Saskatchewan Court of Appeal on January 23-25, 1990. The decision of the Court of Appeal was delivered on February 18, 1991, when the following opinions were filed.

Sherstobitoff, J.A. (Vancise, J.A., concurring) -- see paragraphs 1 to 140;

MacLeod, J. (ad hoc), dissenting -- see paragraphs 141 to 426.