NOVA SCOTIA COURT OF APPEAL Citation: W. Eric Whebby Ltd. v. Doug Boehner Trucking & Excavating Ltd. , 2011 NSCA 97 Date: 20111020 Docket: CA 274238 Registry: Halifax Between: W. Eric Whebby Limited, a body corporate Appellant/Applicant v.
Doug Boehner Trucking & Excavating Limited, a body corporate, United Gulf Developments Limited, a body corporate, Greater Homes Inc., a body corporate, and Garden Crest Developments Limited, a body corporate Respondents and United Gulf Developments Limited, a body corporate, Greater Homes Inc., a body corporate, and Garden Crest Developments Limited, a body Corporate Respondents (Appellants by cross-appeal) Judges: MacDonald, Saunders and Hamilton, JJ.A.
Motion Heard: October 20, 2011, in Halifax, Nova Scotia, in Chambers Written Decision: October 21, 2011 Held: Motion granted per oral reasons of Saunders, J.A.; MacDonald, C.J.N.S. and Hamilton, J.A. concurring.
Counsel: George MacDonald, Q.C. and Christopher Wilson, for the appellant/applicant Robert Grant, Q.C. and Sara Scott, for the respondents United Gulf Developments Limited and Greater Home Inc. David Coles, Q.C. and Matthew Conrad for the respondent Garden Crest Developments Limited Respondent Doug Boehner Trucking & Excavating Limited not appearing Decision : (Orally) [ 1 ] Largely for the reasons contained in Mr. MacDonald ’ s brief we are unanimously of the opinion that his motion ought to be allowed, and his proposed order granted.
Justice demands that all of the issues between Whebby and Garden Crest that were raised in their pleadings, namely, negligence, negligent misstatement and breach of contract, ought to be tried. We accept Mr. MacDonald ’ s representation that through simple inadvertence on his part the order initially presented to the Court and issued December 6, 2007 did not reflect the full disposition of the numerous issues determined in the Court ’ s judgment dated September 6, 2007. [ 2 ] Our decision today will rectify that error, as Civil Procedure Rule 90.50(2) permits.
Today ’ s order will now make it clear that Whebby ’ s appeal with respect to Garden Crest is allowed and Garden Crest ’ s cross-appeal is allowed and a new trial is ordered with respect to the issues of breach of contract, negligent misstatement and negligence as between Whebby and Garden Crest. [ 3 ] Under the circumstances, we decline to order costs for or against any party. Saunders, J.A. Concurred in: MacDonald, C.J.N.S. Hamilton, J.A.