Doug Boehner Trucking & Excavating Ltd. v. United Gulf Developments Ltd., 2010 NSSC 364 (CanLII)
This case was heard in the Supreme Court of Nova Scotia.
In this complex case involving several parties, intersecting construction contracts in the Halifax region resulted in a highly contaminated site. United Gulf Developments ("United") engaged Doug Boehner Trucking & Excavating Ltd. ("Boehner") to carry out excavation work on a residential development site. Elsewhere, Garden Crest engaged W. Eric Whebby Limited ("Whebby") to carry out excavation work on an urban development site. Because the urban project needed fill removed from the site and the residential projected needed fill added to the site, Whebby and Boehner arranged for the fill from the Garden Crest site to be trucked to the United site. As work on the United site moved forward, it came to light that the fill supplied by Whebby was highly contaminated, containing hydrocarbons and heavy metals, among other concerns.
A chain of interconnected lawsuits followed, with each party seeking to put the blame elsewhere. Claims were made under the provincial Sale of Goods Act, as well as in nuisance law and negligence law. After considering the applicable law and the various arguments made by counsel, the Court held that negligence law was most applicable to the case. After finding that Boehner, United, Whebby, and Garden Crest had all contributed to the contamination, the Court apportioned liability between them.
After the Nova Scotia Court of Appeal allowed Whebby’s appeal and Garden Crest’s cross-appeal on the issue of negligence, set aside the decision of the lower court, and ordered a new trial, Whebby and Garden Crest applied for the return of the payments they had been ordered to pay into the Court for the benefit of Boehner and United. After considering the issues, the Court held that the payments should be returned, and it ordered Boehner and United to repay them.
Because Boehner was not in a position to repay the amounts, United paid most of them. When Boehner indicated that it wished to withdraw from the ongoing proceedings, Whebby argued that because Boehner had brought Whebby into the proceedings as a third party, the case against Whebby should be dismissed now that Boehner was withdrawing. In turn, United argued that its best chance of recovering its losses was for the case against Whebby to proceed. After considering the issues, the Court rejected Whebby’s motion for dismissal.
To read other decisions related to this case, go to:
Boehner Trucking & Excavating Ltd. v. United Gulf Developments Ltd. et al., 2004 NSSC 34 (CanLII)
Boehner Trucking and Excavating Ltd. v. United Gulf Developments Ltd. et al., 2004 NSSC 180 (CanLII)
Doug Boehner Trucking & Excavating Ltd. v. United Gulf Developments Ltd., 2006 NSSC 130 (CanLII)
Doug Boehner Trucking & Excavation Ltd. v. United Gulf Developments Ltd., 2007 NSSC 140 (CanLII)
Doug Boehner Trucking & Excavating Ltd., v. United Gulf Developments Ltd., 2013 NSSC 9 (CanLII)
Doug Boehner Trucking & Excavating Ltd. v. United Gulf Developments Ltd., 2013 NSSC 114 (CanLII)
Eric Whebby Ltd. v. Doug Boehner Trucking & Excavating Ltd., 2006 NSCA 129 (CanLII)
Eric Whebby Ltd. v. Doug Boehner Trucking & Excavating Ltd., 2007 NSCA 26 (CanLII)
Eric Whebby Ltd. v. Doug Boehner Trucking & Excavating Ltd., 2007 NSCA 42 (CanLII)
Eric Whebby Ltd. v. Doug Boehner Trucking & Excavation Ltd., 2007 NSCA 117 (CanLII)
Eric. Whebby Ltd. v. Doug Boehner Trucking & Excavating Ltd., 2007 NSCA 92 (CanLII)
Eric Whebby Ltd. v. Doug Boehner Trucking & Excavating Ltd., 2011 NSCA 97 (CanLII)
Eric Whebby Ltd. v. Doug Boehner Trucking & Excavating Ltd., 2014 NSCA 54 (CanLII)
View the Decision on CanLII: https://www.canlii.org/en/ns/nssc/doc/2010/2010nssc364/2010nssc364.html
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