



COURT OF APPEAL FOR ONTARIO

CITATION: McNally Construction Inc. v. Hamilton Port
    Authority,

2014 ONCA 651

DATE: 20140924

DOCKET: C58292

Simmons, Rouleau and Hourigan JJ.A.

BETWEEN

McNally Construction Inc.

Plaintiff

and

The Hamilton Port Authority

Defendant (Appellant)

and

Golder Associates Ltd.

Third Party (Respondent)

and

Mar-Land Engineering Limited

Fourth Party

Mark Abradjian and Renata Kis, for the appellant

P. John Brunner, for the respondent

Heard: September 17, 2014

On appeal from the order of Justice Dale Parayeski of the
    Superior Court of Justice, dated December 30, 2013, with reasons reported at
    2014 ONSC 1180.

By the
    Court:

[1]

On a motion for summary judgment brought by the third party, Golder
    Associates Ltd., against the defendant, The Hamilton Port Authority, the motion
    judge dismissed the Port Authoritys claim for contribution and indemnity
    against Golder.

[2]

In reaching his decision, the motion judge found that the plaintiff and
    plaintiffs counsel had made formal and informal admissions at examinations for
    discovery and at the hearing of the summary judgment motion that conclusively
    established that the plaintiff had no claim against Golder.

[3]

The Port Authority does not dispute that its third-party claim for
    contribution and indemnity against Golder can only succeed if the plaintiff has
    a viable cause of action against Golder.

[4]

However, the Port Authority submits that the motion judge erred in
    relying on the plaintiffs counsels alleged admissions at the summary judgment
    motion hearing when, among other things, any such admissions were not in
    evidence, were qualified and, in any event, were contrary to the plaintiffs
    pleadings.

[5]

We agree. At para. 7 of his reasons, the motion judge described the
    statement of plaintiffs counsel on which he relied:

In addition, at the motion before me, counsel for the plaintiff
    confirmed on the record that the plaintiff takes no issue with the location of
    the bore holes dug by [Golder].

[6]

The statements of plaintiffs counsel at the motion hearing on which the
    motion judge relied read as follows:

[Counsel for the Plaintiff]:  [W]hat I can do is say to you
    again Ive just simply taken the page from the transcript  where [counsel for
    Golder] says:

So  I take it  that [the plaintiff] accepts that there
    was, there were no representations in the Golder Report of June 07, the
    preliminary geo-technical evaluation, which was either false, inaccurate or misleading?

[Counsel for Golder]: You have no facts or evidence to
    suggest otherwise?

[Counsel for the plaintiff]: None.

[Counsel for the Plaintiff]: My clients position
may be
at trial that there was nothing that they know of that was negligent in the way
    in which Golder prepared this report.

The Court: Im going to ask a much more direct question and if
    you cant answer it I respect that.
Does the phraseology in that [discovery]
    transcript that talks about nothing misleading, nothing inaccurate, does that
    or does that not encompass location of the bore holes?

[Counsel for the Plaintiff]:
I think it does
encompass
    location because the larger context of what the parties understood was,
and
    the evidence will have to bear itself out
but the decision making process
    as to where the locations were for bore holes were initially those of Mr.
    McFarland who

The Court: From the fourth party.

[Counsel for the Plaintiff]: From the fourth party but who was,
    we say, a representative of [the Port Authority], so it was [the Port
    Authoritys] decision where to put bore holes. We heard at examinations for
    discovery that it was open to Golder to make a suggestion as to where bore
    holes might be and in fact at an adjacent pier they apparently made some
    suggestions. Beyond that we also heard that there was a decision about costs
    associated with going out into the water and that would have presumably had
    some governing effect on do we spend the extra money to provide those bore
    holes. Beyond that my client who was not part of the process, appreciate, they
    come on after the fact, get the information. They know nothing more than what
    they heard at discovery so we know of no negligence by Golder in any decision making
    process.... [Emphasis added.]

[7]

Assuming, without deciding, that an admission made by plaintiffs
    counsel at the hearing of Golders summary judgment motion against the Port
    Authority would be binding on the plaintiff at trial, we are not satisfied that
    plaintiffs counsels comments were capable of constituting an admission that
    the plaintiff did not have a claim against Golder.

[8]

Central to the plaintiffs claim is the decision taken as to where the
    test holes would be bored and the role, if any, that Golder played. The key
    statement by plaintiffs counsel at the summary judgment motion related to the
    location of bore holes was that I think that a prior statement made by a
    representative of his client on discovery encompass[ed the] location of the
    bore holes. Plaintiffs counsel added that the evidence [would] have to bear
    itself out.

[9]

The qualifications that plaintiffs counsel made do not support the
    motion judges statement that counsel had confirmed  that the plaintiff takes
    no issue with the location of the bore holes. In fact, the plaintiff maintains
    its plea in its statement of claim that, in effect, it relied on the
    representations made in the Golder report and that, either alone or taken together
    with the balance of the tender documents, the representations were inaccurate
    and negligently made. In our view, the motion judges finding is a palpable and
    overriding error. His subsequent conclusion, at para. 11 of his reasons, that
    the plaintiff has no claim against Golder based on the plaintiffs admissions is
    tainted by this error and cannot stand.

[10]

Although
    plaintiffs counsel acknowledged at the motion hearing that the plaintiff did
    not, at that stage, have any evidence of a claim against Golder, plaintiffs
    counsels remarks did not exclude the possibility that such a claim would be
    made out at trial on the whole of the evidence.

[11]

The
    respondent argued that, even if we agreed with the appellants submission, we
    should nonetheless dismiss the appeal. This is because the third party claim
    was issued more than one year after Golder had substantially completed its
    work. The contract between the appellant and Golder has a one-year limitation
    clause that serves to bar the third party claim.

[12]

Although
    the limitation defence was raised in the court below, the motion judge did not consider
    it as he dismissed the third party claim on other grounds. In our view, this
    court should not rule on the issue as part of this appeal. The appellant has
    raised questions as to whether the limitation period has run and whether it
    applies to claims for contribution and indemnity. The limitation issue is therefore
    best left to be resolved at trial.

[13]

As a
    result, we allow the appeal and set aside the motion judges dismissal of the
    third and fourth party claims.

[14]

The
    parties have agreed that the successful party should be awarded costs fixed in
    the amount of $10,000 plus disbursements and HST. We agree and award the
    appellant costs in that amount.


Janet Simmons J.A.

Paul
    Rouleau J.A.


C.W.
    Hourigan J.A.


