JON E. WILLIAMS SURVEYING LIMITED FIRST APPELLANT AND: JON E. WILLIAMS SECOND APPELLANT AND: GERARD TOBIN RESPONDENT, 2024 NLCA 3

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : Jon E. Williams Surveying Limited v. Tobin , 2024 NLCA 3 Date : January 19, 202 4 Docket Number : 202301H0006 BETWEEN: JON E. WILLIAMS SURVEYING LIMITED FIRST APPELLANT AND: JON E. WILLIAMS SECOND APPELLANT AND: GERARD TOBIN RESPONDENT Coram: L.R. Hoegg, F.P. O’Brien and K.J. O’Brien JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 201201G5764 ( 2023 NLSC 14 ) Appeal Heard: September 20, 2023 Judgment Rendered: January 19, 2024 Reasons for Judgment by: L.R. Hoegg J.A. Concurred in by: F.P. O’Brien and K.J. O’Brien JJ.A. Counsel for the First and Second Appellants: F. Richard Gosse

Counsel for the Respondent: Michael Hrabowsky Authorities Cited: CASES CITED: Tobin v. Jon E. Williams Surveying Limited, 2018 NLSC 137; Miawpukek Band v. Ind-Rec Highway Services Ltd.(1999), (NL CA), 172 Nfld. & P.E.I.R. 245 (Nfld. C.A.); Fillatre v. Fillatre, 2016 NLCA 69, 1 C.A.N.L.R. 314. RULES CONSIDERED: Rules of the Supreme Court 1986, SNL 1986, c. 42,

Schedule D, rule 38. L.R. HOEGG J.A.: INTRODUCTION [1] In 2012, Gerard Tobin sued Jon E. Williams Surveying Limited and Jon E. Williams (Williams Surveying) in tort and contractrespecting the provision of land surveying services for the development of a residential subdivision. Mr. Tobin sought damages for thecost of Williams Surveying’s services, remediating construction caused by its surveying errors, and unnecessary construction. [2] In 2021, Williams Surveying applied under rule 38 of the Rules of the Supreme Court, 1986, SNL 1986, c. 42,

Schedule D, fora determination that Gerard Tobin suffered no personal damages related to his cause of action and that, consequently, his action shouldbe dismissed. [3] The Applications Judge determined that it was appropriate for Williams Surveying to invoke the use of rule 38 on thatquestion, but she dismissed the application on the basis that it could not be said on the record before her that Mr. Tobin suffered nopersonal damages. [4] Williams Surveying appeals the Judge’s decision. BACKGROUND [5] In early 2012, Mr.

Tobin contracted with Williams Surveying to prepare surveys of land he owned in Logy Bay-Middle Cove-Outer Cove, Newfoundland and Labrador, for the purpose of developing a residential subdivision. In reliance on the surveys preparedby Williams Surveying, Mr. Tobin arranged for the construction of a roadway to facilitate the development. During its construction, theroadway was determined to be inconsistent with the design of the subdivision, such that some of the proposed residential lots would berendered unusable. Mr.

Tobin ultimately retained different surveyors, and the construction of the roadway was remediated so thedevelopment could proceed. In November 2012, Mr. Tobin filed suit against Williams Surveying, seeking damages in negligence andcontract. [6] In 2018, Mr. Tobin applied to the Supreme Court of Newfoundland and Labrador seeking leave to add Will’s Ridge @Redcliff Inc. (Will’s Ridge) as a plaintiff in his action. Will’s Ridge is a company of which Mr. Tobin was the sole director andshareholder and to which he had transferred the land for development after the survey was completed.

In support of that application, Mr.Tobin filed two affidavits containing information respecting his relations with Williams Surveying, his personal and corporateinvolvement with the development, and losses resulting from the alleged negligence and breach of contract (see Appeal Book, Tab 2,paras. 25, 29). [7] The Applications Judge, a different Judge than the Judge whose decision is under appeal, dismissed Mr. Tobin’s applicationon the basis that the proposed corporate plaintiff did not have to be added to the pleadings in order to effectually adjudicate Mr. Tobin’sclaim (Tobin v. Jon E.

Williams Surveying Limited, 2018 NLSC 137, the “2018 Decision”). The Judge wrote: [23] … If an agreement between Mr. Tobin and the Respondents was breached then the Respondents, or either one of them, will beresponsible in damages. If there was professional negligence giving rise to damages, the Respondents will be liable. In either event, ifliability is ascertained, damages will accrue to the Applicant because he was the contracting party, he was the owner of the propertywhen the negligence occurred and he was the person who suffered loss.

Effectual adjudication can occur without the addition of theproposed corporate plaintiff. [8] In October 2021, Williams Surveying applied to the Supreme Court of Newfoundland and Labrador under rule 38 for adetermination that Mr. Tobin suffered no personal damages as alleged in his statement of claim, and that therefore his claim should bedismissed. Williams Surveying relied on two affidavits filed by Mr. Tobin in support of his 2018 application to add Will’s Ridge as aplaintiff. Specifically, Williams Surveying argued that Mr.

Tobin had admitted in his affidavits that the losses he claimed were not hispersonal losses, but losses in his capacity as a shareholder, or the losses of Will’s Ridge, and sought dismissal of Mr. Tobin’s suit on thatbasis.

[9] In its memorandum of fact and law, Williams Surveying stated the narrow issue before the Applications Judge as “Has [Mr.Tobin] admitted that losses claimed to result from Williams’ alleged wrongdoing were actually not his losses but were the losses of theCompany?” (Appeal Book, Tab 13, page 72). In detailing its argument in the memorandum of fact and law, Williams Surveyingcharacterized the issue as a simple factual one “the question [being] whether [Mr. Tobin’s] evidence confirms that it is the Company, andnot [Mr.

Tobin] personally, that has allegedly suffered damages” (Appeal Book, Tab 13, page 86, para. 32). Of note, WilliamsSurveying acknowledged Mr. Tobin’s claim that the losses were primarily those of Will’s Ridge (Appeal Book, Tab 11, page 58). [10] Relying on Williams Surveying’s application, the Judge identified three issues for her determination: a. Was a rule 38 application appropriate in the case? b. If so, did Mr. Tobin admit that the losses he claimed were not suffered by him personally? c. Is a trial appropriate? [11] The Judge considered the appropriateness of the rule 38 application.

She identified the issue that Williams Surveying asked herto decide, that being whether Mr. Tobin had admitted in his affidavit evidence that his losses were not personal. She then summarizedthe governing law as set out by this Court in Miawpukek Band v. Ind-Rec Highway Services Ltd. (1999), (NL CA),172 Nfld. & P.E.I.R. 245, noting that the applicant had the burden of establishing whether a court should hear a rule 38 application, andthat a court’s use of the rule is discretionary.

The Judge considered the several factors set out in Miawpukek that inform whether such anapplication ought to be heard, and decided that a rule 38 application was appropriate in the circumstances. In so doing, she noted thatboth parties agreed that rule 38 was appropriate to determine the issue Williams Surveying sought to have determined. [12] The Judge then proceeded to decide whether Mr. Tobin’s affidavit evidence was an admission that his alleged losses werethose of Will’s Ridge and not him personally. She considered his affidavit evidence. In so doing, she referenced Mr.

Tobin’s swornstatement at paragraph 36 of his May 22, 2018 affidavit, that “The result of all of the above is that I have experienced losses that are ablend of my own personal losses and losses to the company …”. She also referenced Mr. Tobin’s statement at paragraph 42 of the sameaffidavit, which was that if his 2018 application were not granted, “some damages may not be recovered”. [13] The Judge also noted her judicial colleague’s comments in deciding Mr. Tobin’s 2018 application, to the effect that Mr. Tobinhad personally contracted with Williams Surveying and thus “damages will accrue to [Mr.

Tobin]” if liability is ascertained (2018Decision, at para. 23). She stated that her colleague’s decision added credence to Mr. Tobin’s position, as both decisions were decidedon the same affidavit evidence. [14] The Judge ultimately determined that on the record before her, “it cannot be said that [Mr. Tobin] admitted to suffering nolosses personally”, and ordered that a trial was appropriate. The Appeal [15] Williams Surveying appeals the Judge’s decision, arguing that the Judge erred by curtailing her consideration of Mr. Tobin’saffidavit evidence to its existence, instead of its significance.

Williams Surveying maintains that the Judge misapprehended the functionof rule 38 and misdirected herself on the task before her. Williams Surveying argues that the Judge ought to have assessed thesignificance of Mr. Tobin’s affidavit evidence, determined that it “principally” demonstrated that Mr. Tobin suffered no personal losses,and dismissed Mr. Tobin’s claim. [16] Mr. Tobin responds, saying that at no instance did he admit in his affidavit evidence that he had suffered no personal damages,or that his claim was based only on his status as a shareholder anticipating profit.

Further, he maintains that he did not assert that Will’sRidge contracted with Williams Surveying, or that he assigned the contracts he personally entered into with Williams Surveying toWill’s Ridge, or that Will’s Ridge guaranteed the contracts. He says that his statements in his affidavits about how invoices were paid isnot evidence that he suffered no personal loss. [17] Mr. Tobin further submits that the determination Williams Surveying seeks in this Court involves weighing all of the evidencerespecting damages and determining whether the damages should be categorized as personal or corporate.

He adds that categorizing thealleged damages in this manner is inappropriate for a rule 38 application because of the limited record and credibility issues which mayarise. Mr. Tobin says he agreed to the Judge deciding the simple question asked of her, that being whether Mr. Tobin admitted in hisaffidavit evidence that he had suffered no personal damages, but that he did not agree that the Judge could categorize the damagesreferenced in his affidavits and determine their significance within his suit. He argues that such determinations are not appropriate on arule 38 application.

ISSUE Did the Judge err in concluding that Mr. Tobin did not admit to having no personal damages and that a trial of Mr. Tobin’saction was appropriate? ANALYSIS [18] For the following reasons, I agree with Mr. Tobin’s position. [19] Williams Surveying argues that the Judge erred by considering only whether Mr. Tobin had admitted in his affidavit evidencethat the losses claimed were not incurred by him personally, saying that much more was put before the Judge which she did notconsider.

Further, Williams Surveying maintains that the Judge ought to have adjudicated the evidence led and its legal significance, anddismissed Mr. Tobin’s suit. Williams Surveying invites this Court to make the rulings that it says the Judge ought to have made. [20] The relief requested by Williams Surveying is for this Court to determine that the legal significance of Mr. Tobin’s affidavit

evidence justifies dismissal of his suit. This is a very big ask. To do so would require consideration of an itemized list of all alleged damages and evidence respecting how, when and by whom they were sustained. [ 21 ] A full record is something the Judge did not have and this Court did not have. It bears recognizing that Mr. Tobin had no onus to file evidence on the rule 38 application so as to assure a full record. Moreover, the general rule is that a rule 38 application proceeds on agreed facts ( Fillatre v. Fillatre , 2016 NLCA 69 , at para. 20 ).

The request of Williams Surveying would also involve the application of tort, contract, and corporate law to an incomplete record. [ 22 ] What Williams Surveying now says it asked the Judge to do was to conduct an assessment of Mr. Tobin’s alleged damages on the basis of a limited and inadequate record. Aside from the fact that this was not what Williams Surveying requested the Judge to do, such a request is well beyond the accepted purpose of rule 38. Accordingly, the Judge was correct in deciding that a trial was appropriate in the circumstances.

Moreover, it would not be appropriate for this Court to engage in such an exercise. It is clear that a trial is necessary to decide the damages. [ 23 ] In the result, I see no error in the Judge’s decision that a trial was appropriate. Accordingly, I would dismiss the appeal, and grant costs on column three payable forthwith to Mr. Tobin. _____________________________ L.R. Hoegg J.A. I concur, ____________________ F.P. O’Brien J.A. I concur, ____________________ K.J. O’Brien J.A.