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, the matter was tried again in the Supreme Court of Nova Scotia. Because United and Boehner had already reached a settlement out of court, the issues were Whebby’s liability to United and Garden Crest’s liability to Whebby. The Court held that Whebby was liable in negligence for the remediation of the contaminated site, but would not have to pay for losses that United and Boehner had incurred by exacerbating the problem. The Court also held that Garden Crest was not liable to Whebby, or anyone else, in negligence, and so Whebby’s claims against Garden Crest were dismissed.

Afterwards, this further decision was required to determine costs.

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., 2010 NSSC 364 (CanLII)

Doug Boehner Trucking & Excavating Ltd., v. United Gulf Developments Ltd., 2013 NSSC 9 (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/2013/2013nssc114/2013nssc114.html

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