Symes v. K.B. Clarke Restoration

Symes v. K.B. Clarke Restoration

Claim dismissed because Claimants failed to prove on the balance of probabilities that Priority or K.B. Clarke were negligent or breached contract: Priority acted within the insurer-defined scope, used acceptable materials and an NBCC-acceptable drainage method (crushed stone with secondary tile and sump), and there was insufficient evidence that the placement of the drain tile or other works by the defendants caused the leaks, which were more plausibly attributable to exterior grading, neighbour downspouts and an existing foundation crack; K.B. Clarke performed only interior work and no breach or negligence was shown.

Citation
2008 NSSM 87
Parties
Claimant 1: Jason Symes c/o Kelly Patrick Shannon, Burnside Law Office; Claimant 2: Barbara Symes c/o Kelly Patrick Shannon, Burnside Law Office; Defendant 1: 2123125 Ontario Limited c.o.b. as K.B. Clarke Restoration; Defendant 2: Priority Environmental Services Limited
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
3 October 2008
Procedural Posture
Small Claims Court / Adjudicator Decision
Outcome
Claim dismissed as against both Defendants, K.B. Clarke and Priority Environmental Services Limited
Legal Topics
Negligence, Breach of Contract, Building Code Compliance, Scope of Work, Causation, Damages
Source Language
English
Torts Contract Construction Law Insurance Negligence Breach of Contract Building Code Compliance Scope of Work +2 more

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Parties

Jason Symes c/o Kelly Patrick Shannon, Burnside Law Office

Claimant 1

Barbara Symes c/o Kelly Patrick Shannon, Burnside Law Office

Claimant 2

2123125 Ontario Limited c.o.b. as K.B. Clarke Restoration

Defendant 1

Priority Environmental Services Limited

Defendant 2

Procedural Posture

Small Claims Court / Adjudicator Decision

Legal Issues

  1. 1 Whether Priority was negligent in placement of drainage tile and construction of drywell
  2. 2 Whether Priority used improper backfill or materials
  3. 3 Whether Priority breached National Building Code (drainage requirements)

Ratio Decidendi

Claim dismissed because Claimants failed to prove on the balance of probabilities that Priority or K.B. Clarke were negligent or breached contract: Priority acted within the insurer-defined scope, used acceptable materials and an NBCC-acceptable drainage method (crushed stone with secondary tile and sump), and there was insufficient evidence that the placement of the drain tile or other works by the defendants caused the leaks, which were more plausibly attributable to exterior grading, neighbour downspouts and an existing foundation crack; K.B. Clarke performed only interior work and no breach or negligence was shown.

Court Disposition

Claim dismissed as against both Defendants, K.B. Clarke and Priority Environmental Services Limited

Orders

  • Claim dismissed as to both Defendants; no award to Claimants