Warner Construction Co. v. Wood River (Municipality) and Keith Consulting Engineers Ltd., (1979) 1 Sask.R. 118 (CA)

JudgeCulliton, C.J.S., Woods and Hall, JJ.A.
CourtCourt of Appeal for Saskatchewan
Case DateOctober 04, 1979
JurisdictionSaskatchewan
Citations(1979), 1 Sask.R. 118 (CA)

Warner Constr. Co. v. Wood River (1979), 1 Sask.R. 118 (CA)

MLB headnote and full text

Warner Construction Co. Ltd. v. Wood River, Municipality of (defendant) and Keith Consulting Engineers Ltd. (third party)

(No. 7172)

Indexed As: Warner Construction Co. v. Wood River (Municipality) and Keith Consulting Engineers Ltd.

Saskatchewan Court of Appeal

Culliton, C.J.S., Woods and Hall, JJ.A.

October 4, 1979.

Summary:

This case arose out of an action by a builder against a municipality for damages for misrepresentation. The municipality served a third party notice on a firm of engineers. The engineers did not appear and defend. After a trial the municipality was held liable but the court allowed the municipality's claim for indemnity against the engineers. The engineers then applied to set aside the judgment against it. The Saskatchewan Court of Queen's Bench set aside the judgment against the firm of engineers. The municipality appealed to the Saskatchewan Court of Appeal.

The Saskatchewan Court of Appeal allowed the appeal, set aside the judgment of the Saskatchewan Court of Queen's Bench and held that the judgment against the engineers should not be set aside in the circumstances. The Court of Appeal stated that the municipality was prejudiced by the failure of the engineers to defend the third party claim. Also the Court of Appeal stated that the engineers did not offer a valid excuse for failing to defend the third party claim.

Practice - Topic 6200

Judgments - Setting aside default judgments - A builder sued a municipality for damages for misrepresentation - The municipality served a third party notice on a firm of engineers - The engineers did not appear and defend - After a trial the municipality was held liable but the court allowed the municipality's claim for indemnity against the engineers - The firm of engineers then applied to set aside the judgment against it - The Saskatchewan Court of Appeal held that the default judgment against the engineers should not be set aside because the municipality was prejudiced by the failure of the engineers to defend the third party claim and because the engineers did not offer a valid excuse for failing to defend the third party claim.

Practice - Topic 6196

Judgments - Setting aside default judgments - The Saskatchewan Court of Appeal referred to the general principles governing an application to set aside a default judgment - See paragraph 2.

Cases Noticed:

Klein v. Schile, [1921] 2 W.W.R. 78, refd to. [para. 2].

Hamel v. Chelle (1964), 48 W.W.R. 117, refd to. [para. 2].

Smigarowski v. Mugliston (1951), 2 W.W.R.(N.S.) 108, refd to. [para. 16].

Rabinovitch v. Feist, [1927] 2 W.W.R. 673, refd to. [para. 16].

Statutes Noticed:

Rules of Court (Sask.), rule 346 [para. 1].

Counsel:

G.J.K. Neill and W.D. Baldwin, for the appellant Wood River;

P.N. McDonald, for the respondent Keith Consulting Engineers Ltd.

This appeal was heard by CULLITON, C.J.S., WOODS and HALL, JJ.A., of the Saskatchewan Court of Appeal.

The judgment of the Saskatchewan Court of Appeal was delivered by CULLITON, C.J.S., at Regina, Saskatchewan, on October 4, 1979.

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15 practice notes
  • Ballentyne v. Benard, 2012 SKCA 23
    • Canada
    • Saskatchewan Court of Appeal for Saskatchewan
    • September 12, 2011
    ...115 (Sask. C.A.), refd to. [para. 12]. Warner Construction Co. v. Wood River (Municipality) and Keith Consulting Engineers Ltd. (1979), 1 Sask.R. 118; 105 D.L.R.(3d) 370 (C.A.), refd to. [para. Bank of Montreal v. Pauls et al. (1985), 35 Sask.R. 204 (C.A.), refd to. [para. 12]. Wicks v. Wic......
  • T.W.B. Construction Ltd. v. Jago Oilfield Services Ltd. et al., 2009 SKQB 281
    • Canada
    • Saskatchewan Court of Queen's Bench for Saskatchewan
    • July 6, 2009
    ...117 (Sask. C.A.), refd to. [para. 16]. Warner Construction Co. v. Wood River (Municipality) and Keith Consulting Engineers Ltd. (1979), 1 Sask.R. 118; 105 D.L.R.(3d) 370 (C.A.), refd to. [para. Kilbach v. McCredie Estate (1986), 49 Sask.R. 179 (C.A.), refd to. [para. 16]. First City Capital......
  • Milen v. Metis Nat. Council, (1985) 43 Sask.R. 308 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench for Saskatchewan
    • October 22, 1985
    ...2 W.W.R. 78, refd to. [para. 8]. Warner Construction Ltd. v. Rural Municipality of Wood River and Keith Consulting Engineers Ltd. (1979), 1 Sask.R. 118, refd to. [para. T.E. Dore, for the plaintiff; F.J. Kovach, for the defendants (the Manitoba Metis Federation Inc. and Yvon Dumont). This a......
  • Turner v. Court, [2003] Sask.R. Uned. 3 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench for Saskatchewan
    • January 9, 2003
    ...11 (1986), 41 Sask. R. 213 (Q.B.), Warner Construction Ltd. v. Rural Municipality of Wood River and Keith Consulting Engineers Ltd. (1980), 1 Sask. R. 118 (C.A.) and Mellstrom v. Rance Construction Co. Ltd., Ellefson and Philipzyk (1966), 55 W.W.R. (N.S.) 229 (Sask. Q.B.) in support of his ......
  • Request a trial to view additional results
6 cases
  • Ballentyne v. Benard, 2012 SKCA 23
    • Canada
    • Saskatchewan Court of Appeal for Saskatchewan
    • September 12, 2011
    ...115 (Sask. C.A.), refd to. [para. 12]. Warner Construction Co. v. Wood River (Municipality) and Keith Consulting Engineers Ltd. (1979), 1 Sask.R. 118; 105 D.L.R.(3d) 370 (C.A.), refd to. [para. Bank of Montreal v. Pauls et al. (1985), 35 Sask.R. 204 (C.A.), refd to. [para. 12]. Wicks v. Wic......
  • T.W.B. Construction Ltd. v. Jago Oilfield Services Ltd. et al., 2009 SKQB 281
    • Canada
    • Saskatchewan Court of Queen's Bench for Saskatchewan
    • July 6, 2009
    ...117 (Sask. C.A.), refd to. [para. 16]. Warner Construction Co. v. Wood River (Municipality) and Keith Consulting Engineers Ltd. (1979), 1 Sask.R. 118; 105 D.L.R.(3d) 370 (C.A.), refd to. [para. Kilbach v. McCredie Estate (1986), 49 Sask.R. 179 (C.A.), refd to. [para. 16]. First City Capital......
  • Milen v. Metis Nat. Council, (1985) 43 Sask.R. 308 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench for Saskatchewan
    • October 22, 1985
    ...2 W.W.R. 78, refd to. [para. 8]. Warner Construction Ltd. v. Rural Municipality of Wood River and Keith Consulting Engineers Ltd. (1979), 1 Sask.R. 118, refd to. [para. T.E. Dore, for the plaintiff; F.J. Kovach, for the defendants (the Manitoba Metis Federation Inc. and Yvon Dumont). This a......
  • Turner v. Court, [2003] Sask.R. Uned. 3 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench for Saskatchewan
    • January 9, 2003
    ...11 (1986), 41 Sask. R. 213 (Q.B.), Warner Construction Ltd. v. Rural Municipality of Wood River and Keith Consulting Engineers Ltd. (1980), 1 Sask. R. 118 (C.A.) and Mellstrom v. Rance Construction Co. Ltd., Ellefson and Philipzyk (1966), 55 W.W.R. (N.S.) 229 (Sask. Q.B.) in support of his ......
  • Request a trial to view additional results