GRAYSBROOK CAPITAL LTD. PLAINTIFF - v. -, 2023 NBKB 035

SJC/311/2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN Citation: 2023 NBKB 035 BETWEEN: GRAYSBROOK CAPITAL LTD. PLAINTIFF - and - VIVA DEVELOPMENT INC., JOSEPH VAUTOUR, MARIE VAUTOUR, and MATHIEU VAUTOUR DEFENDANTS -and- GREAT AMERICAN INSURANCE COMPANY, SEARS INSURANCE LTD., and ANDERSON-MCTAGUE & ASSOCIATES LTD. THIRD PARTIES BEFORE: Justice William T. Grant HEARING HELD: Saint John DATE OF HEARING: January 27, 2023 DATE OF DECISION: February 15, 2023 SUBJECT MATTER: Motion for Partial

Summary Judgment COUNSEL: Rodney J. Gillis, K.C., for the plaintiff Yanis Khiari for the defendants Josie Marks and Marie-Pier Cyr for Sears Insurance Ltd.

Christopher Morrison for Great American Insurance Company No appearance for Anderson-McTague & Associates DECISION GRANT, J ( Orally) [ 1 ] In this action Graysbrook Capital Ltd. sued the defendants for the balance owing on a loan it advanced to them to assist in the construction of a building in Saint John, New Brunswick. Graysbrook has now obtained

summary judgment on its action. [ 2 ] The defendants filed a third party claim against Great American Insurance Company, Sears Insurance Ltd., (“Sears”) and Anderson-McTague and Associates Ltd., alleging that they were negligent in failing to provide fire insurance on the building which suffered a total loss in a fire on March 16, 2022. [ 3 ] Sears filed a motion for

summary judgment alleging there are no genuine issues requiring a trial in the claim against it. The defendants submit, inter alia, that the Sears motion is for partial

summary judgment and should therefore be dismissed. They rely on Babin v. C.J.M. Dieppe Investments Ltd. et al , 2019 NBCA 44 where the Court of Appeal adopted the Supreme Court’s statement in Hyrniak v. Mauldin , 2014 SCC 7 at para. 60 that caution should be used in applications for partial

summary judgment. The Court in Babin also adopted the statement of Pepall, J.A. in Butera v. Chown, Cairns LLP 2017 ONCA 783 that partial

summary judgment “… should be considered to be a rare procedure reserved for issues that may be readily bifurcated from those in the main action …”. [ 4 ] The third party claims in this action are joint and several claims in negligence against all of the third parties. All the allegations of negligence are made against the third parties collectively. [ 5 ] Neither of the other two third parties were served with notice of Sears’ motion for

summary judgment, which was heard on January 27 th , 2023. [ 6 ] The claim against the third parties is fact-driven and largely based on evidence that involves the actions or inactions of Sears’ employees. The defendants allege that all of the third parties are liable for those actions or inactions. Clearly, the issue of whether or not the other third parties are liable to the defendants is not severable from the issue of whether or not Sears is liable to the defendants. [ 7 ] I therefore find that Sears’ motion is for partial

summary judgment and because it is not severable, and largely fact-driven, it would not result in any meaningful reduction of the length of the ultimate trial since evidence from Sears of their involvement would be required in the ultimate trial to determine whether or not the other third parties are liable to the defendants. [ 8 ] I therefore find that Sears’ motion for

summary judgment is premature and it is hereby dismissed with costs of $1,000.00. I further grant leave to Sears to re-file a motion for

summary judgment provided it does so in conjunction with the other third parties.

___________________________________________ William T. Grant Judge of the Court of King’s Bench of New Brunswick