Robichaud v. Didiodato, (2015) 431 N.B.R.(2d) 6 (TD)

• Judge: Morrison, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 06, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 431 N.B.R.(2d) 6 (TD);2015 NBQB 65

Robichaud v. Didiodato (2015), 431 N.B.R.(2d) 6 (TD);

    431 R.N.-B.(2e) 6; 1124 A.P.R. 6

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Temp. Cite: [2015] N.B.R.(2d) TBEd. MR.013

Renvoi temp.: [2015] N.B.R.(2d) TBEd. MR.013

Yolande Robichaud and Lucille Robichaud (plaintiffs) v. Robert Didiodato and Nancy Didiodato (defendants)

(F/C/245/2010; 2015 NBQB 65; 2015 NBBR 65)

Indexed As: Robichaud v. Didiodato

Répertorié: Robichaud v. Didiodato

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Morrison, J.

March 6, 2015.

Summary:

Résumé:

After a lengthy dispute concerning replacement of a retaining wall on the boundary line of the properties owned by the parties, the parties entered into a settlement agreement (incorporated into a consent order), which provided that the defendants would remove the existing wall and construct a new wall in accordance with an agreed upon design plan. The new wall was constructed. The plaintiffs sued, alleging a number of breaches of the agreement's terms and seeking damages for "anxiety, stress, worry, intimidation and frustration".

The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiffs had proven one breach, which was not compensable. The parties were to bear their own costs.

Editor's Note: For a related decision, see [2011] N.B.R.(2d) Uned. 90.

Building Contracts - Topic 3422

Liability of builder - Defective workmanship or design - Defective construction - After a lengthy dispute concerning replacement of a retaining wall on the boundary line of the properties owned by the parties, the parties entered into a settlement agreement (incorporated into a consent order), which provided that the defendants would remove the existing wall and construct a new wall in accordance with an agreed upon design plan - The new wall was constructed - The plaintiffs sued, alleging a number of breaches of the agreement's terms and seeking damages for "anxiety, stress, worry, intimidation and frustration" - The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiffs had proven one breach, which was a failure to place a layer of compacted granular material beneath the wall footing - The purpose of the granular material was to provide an added level of frost protection - The defendants were responsible for the failure of their contractor to fulfill its contract - However, the absence of the granular material had not resulted in a faulty or defective wall - The defect was "of trivial or inappreciable importance" and was not compensable - See paragraphs 15 to 49.

Contracts - Topic 3730

Performance or breach - Fundamental breach - What constitutes a fundamental breach - [See Building Contracts - Topic 3422 ].

Damage Awards - Topic 498

Injury and death - General damage awards - Pain and suffering, loss of amenities and other nonpecuniary damages - After a lengthy dispute concerning replacement of a retaining wall on the boundary line of the properties owned by the parties, the parties entered into a settlement agreement (incorporated into a consent order), which provided that the defendants would remove the existing wall and construct a new wall in accordance with an agreed upon design plan - The new wall was constructed - The plaintiffs sued, alleging a number of breaches of the agreement's terms and seeking damages for "anxiety, stress, worry, intimidation and frustration" - The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiffs had proven one breach, which was not compensable - Even if the plaintiffs had proven a material breach, they could not recover - They had sought only non-pecuniary damages, but had not offered any medical or psychological evidence of a disorder or psychological injury - Their complaints did not rise to the level of a compensable personal injury - Further, if there had been such an injury, it would not have been reasonably foreseeable - See paragraphs 50 to 64.

Damages - Topic 528

Limits of compensatory damages - Remoteness - Torts - Foreseeability - [See Damage Awards - Topic 498 ].

Damages - Topic 1543

General damages - General damages for personal injury - Pain and suffering, loss of amenities and other non-pecuniary damages - [See Damage Awards - Topic 498 ].

Practice - Topic 7021

Costs - Party and party costs - Successful party - Exceptions - Conduct (incl. counsel) - After a lengthy dispute concerning replacement of a retaining wall on the boundary line of the properties owned by the parties, the parties entered into a settlement agreement (incorporated into a consent order), which provided that the defendants would remove the existing wall and construct a new wall in accordance with an agreed upon design plan - The new wall was constructed - The plaintiffs sued, alleging a number of breaches of the agreement's terms and seeking damages for "anxiety, stress, worry, intimidation and frustration" - The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiffs had proven one breach, which was not compensable - Regarding costs, the court noted, "The root of this litigation is the plaintiffs' unrealistic and unreasonable expectation that the removal of the rock wall and construction of the new wall could be accomplished with no disruption whatsoever to their property" - If there had not been a technical breach, the court would have ordered that the plaintiffs pay substantial costs - However, it was not appropriate to award costs to the defendants in these circumstances - The parties were to bear their own costs - See paragraphs 65 and 66.

Practice - Topic 9869

Settlements - Breach - What constitutes - [See Building Contracts - Topic 3422 ].

Construction - Cote 3422

Responsabilité du constructeur - Malfaçons - Construction défectueuse - [Voir Building Contracts - Topic 3422 ].

Contrats - Cote 3730

Exécution ou rupture - Rupture fondamentale - En quoi consiste - [Voir Contracts - Topic 3730 ].

Dommages-intérêts - Cote 528

Limites aux dommages-intérêts compensatoires - Éloignement - Délits civils - Prévisibilité - [Voir Damages - Topic 528 ].

Dommages-intérêts - Cote 1543

Dommages-intérêts généraux - Dommages-intérêts généraux pour préjudice corporel - Douleur et souffrance, perte d'agrément et autres dommages-intérêts extra-pécuniaires - [Voir Damages - Topic 1543 ].

Évaluation des dommages-intérêts - Cote 498

Blessures et décès - Dommages-intérêts généraux - Douleur et souffrance, perte d'agrément et autres dommages-intérêts généraux extra-pécuniaires - [Voir Damage Awards - Topic 498 ].

Procédure - Cote 7021

Dépens - Dépens entre parties - Droit aux dépens entre parties - Partie gagnante - Exceptions - Conduite - Avocats - [Voir Practice - Topic 7021 ].

Procédure - Cote 9869

Règlements amiables - Rupture - Éléments constitutifs - [Voir Practice - Topic 9869 ].

Cases Noticed:

Diotte v. Consolidated Development Co. (2014), 425 N.B.R.(2d) 271; 1107 A.P.R. 271; 2014 NBCA 55, refd to. [para. 55].

Blanchard v. Acadie-Presse ltée (2013), 409 N.B.R.(2d) 152; 1062 A.P.R. 152; 2013 NBCA 58, refd to. [para. 57].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 76].

Counsel:

Avocats:

Allen I. Murray, for the plaintiffs;

L. Paul Elliott, for the defendants.

This action was heard on February 9-12, 2015, by Morrison, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following judgment on March 6, 2015.