Webb Real Estate Ltd. and Antigonish Home Furnishings Ltd. v. McInnis, Meehan and Tramble et al., (1977) 20 N.S.R.(2d) 6 (CA)

• Judge: MacKeigan, C.J.N.S., Coffin and Cooper, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 17, 1977
• Jurisdiction: Nova Scotia
• Citations: (1977), 20 N.S.R.(2d) 6 (CA)

Webb Real Est. v. McInnis, Meehan (1977), 20 N.S.R.(2d) 6 (CA);

    27 A.P.R. 6

MLB headnote and full text

Webb Real Estate Limited and Antigonish Home Furnishings Limited v. McInnis, Meehan and Tramble and Patterson, Smith, Matthews and Grant (Third Parties)

Indexed As: Webb Real Estate Ltd. and Antigonish Home Furnishings Ltd. v. McInnis, Meehan and Tramble et al.

Nova Scotia Supreme Court

Appeal Division

MacKeigan, C.J.N.S., Coffin and Cooper, JJ.A.

February 17, 1977.

Summary:

This case arose out of the plaintiffs' claim against the defendant solicitors in negligence. The plaintiffs retained the defendants to process the plaintiffs' claim under a fire insurance policy against the insurer. The first proof of loss filed by the defendants was rejected by the insurer and the defendants retained the third party as insurance counsel to assist in preparing the claim. The limitation period for an action against the insurer on the claim expired before the defendants commenced an action. The plaintiffs' action against the insurer was dismissed and the plaintiffs brought an action against the defendants in negligence for damages. The defendants added the third parties. The Nova Scotia Supreme Court, Trial Division, allowed the plaintiffs' action and held the defendant wholly at fault and liable for damages. The defendants appealed.

The Nova Scotia Court of Appeal allowed the appeal in part and held that liability for the negligent failure to commence an action within the limitation period should be divided 2/3 to the defendants and 1/3 to the third parties. The Court of Appeal held that counsel for the defendants, who was hired expressly because of his knowledge and experience in insurance matters, had an obligation to ensure that the action was commenced in time. See paragraphs 1 to 51.

The Court of Appeal assessed the plaintiffs' damages in the amount that could have been recovered from the insurer, which included the value of the property together with interest at 8% from the time when the action should have been brought for a period of 4 months, the time it would normally take to obtain judgment against the insurer - See paragraphs 63 to 76.

Barristers and Solicitors - Topic 2584

Negligence - Particular negligence acts - Commencement of action - The defendant solicitor was retained by the plaintiffs to process a claim under a fire insurance policy - The first proof of loss was rejected by the insurer and the defendant retained the third party as insurance counsel to assist in preparing the claim - The limitation period for an action against the insurer expired before the defendant commenced an action on the policy - The Nova Scotia Court of Appeal held that liability for the negligent failure to start the action should be divided 2/3 to the defendant solicitor and 1/3 to the third party counsel - See paragraphs 1 to 51.

Barristers and Solicitors - Topic 2666

Negligence - Damages - Failure to commence action on a contract within limitation period - The defendant solicitor failed to commence an action under a fire insurance policy against the insurer within the limitation period - The Nova Scotia Court of Appeal held the defendant liable in negligence - The Court of Appeal held that the measure of damages was the amount which could have been recovered from the insurer, which included the value of the property together with interest at 8% from the time when the action should have been brought for a period of 4 months, the time it would normally take to obtain judgment against the insurer - See paragraphs 63 to 76.

Interest - Topic 5136

Interest as damages - Torts - Negligence - The defendant solicitor was retained to process a claim for the plaintiff under a fire insurance policy - The defendant failed to commence an action on the claim within the time limited and were found liable in negligence by the Nova Scotia Court of Appeal - The defendant was found liable in damages in the amount which could have been recovered from the insurer, which included the value of the property plus interest at 8% from the time when the action should have been brought for a period of 4 months, the time it would normally take to obtain judgment against the insurer - The Court of Appeal refused to allow interest on the judgment amount itself - See paragraphs 63 to 76.

Interest - Topic 5301

Interest as damages - Interest on payment of money or debt withheld - Amount on which interest calculated - The defendant solicitor was retained to process a claim for the plaintiff under a fire insurance policy - The defendant failed to commence an action on the claim within the time limited and were found liable in negligence by the Nova Scotia Court of Appeal - The defendant was found liable in damages in the amount which could have been recovered from the insurer, which included the value of the property plus interest at 8% from the time when the action should have been brought for a period of 4 months, the time it would normally take to obtain judgment against the insurer - See paragraphs 77 to 78.

Interest - Topic 5304

Interest as damages - Payment of money or debt withheld - Amount due under an insurance contract - The Nova Scotia Court of Appeal stated that the Supreme Court has the power to award interest as damages on an amount payable under an insurance policy - See paragraphs 63 to 75.

Interest - Topic 5308

Interest as damages - Interest on payment of money or debt withheld - Rate of interest applicable - The defendant solicitor was retained to process a claim for the plaintiff under a fire insurance policy - The defendant failed to commence an action on the claim within the time limited and was found liable in negligence by the Nova Scotia Court of Appeal - The defendant was found liable in damages in the amount which could have been recovered from the insurer, which included the value of the property plus interest at 8% from the time when the action should have been brought for a period of 4 months, the time it would normally take to obtain judgment against the insurer - The Court of Appeal held that the interest rate should be one that is reasonable in the circumstances in setting the rate at 8% - See paragraphs 79 to 87.

Cases Noticed:

Toronto Railway Company v. Corporation of the City of Toronto, [1906] A.C. 117, refd to. [para. 64].

Stewart v. Crowell Bus Co. Ltd. (1955), 35 M.P.R. 249 (N.S.C.A.), dist. [para. 65].

Canadian General Electric Company Limited v. Pickford & Black Limited, [1972] S.C.R. 52, dist. [para. 65].

Leslie R. Fairn & Associates v. Colchester Developments Limited (1975), 11 N.S.R.(2d) 389 (N.S.C.A.), dist. [para. 65].

Re Baugild, 34 M.P.R. 349, folld. [para. 73].

Chandris v. Isbrandtsen-Moller Co. Inc., [1951] 1 K.B. 240, folld. [para. 74].

Worth v. Walter (1975), 19 N.S.R.(2d) 231, consd. [para. 75].

Sydney Rotary Drilling Services Limited v. Quebec Assurance Company (1975), 16 N.S.R.(2d) 233, consd. [para. 75].

P.M.C. Meat v. Fairfield Cold Stores, [1971] 2 Lloyd's Rep. 221, consd. [para. 80].

Foundation Company of Canada Limited v. Prince Albert Pulp Company Limited et al. (1976), 8 N.R. 181 (S.C.C.), consd. [para. 82].

Statutes Noticed:

Bills of Exchange Act, R.S.C. 1970, c. B-5, sect. 134 [para. 65].

Civil Procedure Act, 1833 (Imp.), 3 & 4 Wm. 4, c. 42, sect. 28, sect. 29 [para. 66].

Civil Procedure Rule 62.10(4) [paras. 63 & 90].

Interest Act, R.S.C. 1970, c. I-18, sect. 3 (paras. 83-84].

Interest Act, R.S.N.S. 1851 (First Series), c. 82, sect. 4, sect. 5 [para. 68].

Interest Act, R.S.N.S. 1884 (Fifth Series), App. A, p. 33, sect. 4, sect. 5 [para. 69].

Interest on Judgments Act, R.S.N.S. 1967, c. 150, sect. 1 [paras. 63 & 90].

Judicature Act, S.N.S. 1972, c. 2 [para. 64]; sect. 3 [para. 72].

Lord Tenterden's Act, 1833 (Imp.), 3 & 4 Wm. 4, c. 42, sect. 28, sect. 29 [para. 66].

Authors and Works Noticed:

Chitty on Contracts (23rd Ed.), vol. 2, paras. 1115-1117 [para. 65].

McGillivray and Parkington on Insurance Law (6th Ed. 1975), ss. 1267 [para. 88]; 1270 [para. 81].

McGregor on Damages (13th Ed. 1972), pp. 316-317 [para. 64]; 455 [para. 79].

Counsel:

H.F. Jackson, Q.C., J.M. Davison, Q.C., and R.G. Belliveau, for the appellants;

M.S. Ryan, for the respondents;

K.E. Eaton, Q.C., for the respondents (third parties).

This case was heard on October 13 and 14, 1976, at Halifax, Nova Scotia, before, MacKEIGAN, C.J.N.S., COFFIN and COOPER, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On February 17, 1977, the judgment of the Appeal Division was delivered and the following opinions were filed:

MacKEIGAN, C.J.N.S. - See paragraphs 60-90,

COFFIN, J.A. - See paragraphs 1-59,

COOPER, J.A. - See paragraph 91.