Martin Marietta Materials Canada Ltd. v. Beaver Marine Ltd., 2016 NSSC 225

SUPREME COURT OF Nova Scotia Citation: Martin Marietta Materials Canada Ltd. v. Beaver Marine Ltd. , 2016 NSSC 225 Date: 20160921 Docket: Hfx No. 358414 Registry: Halifax Between: Martin Marietta Materials Canada Limited, a body corporate, and Factory Mutual Insurance Company, a body corporate Plaintiffs v. Beaver Marine Limited, a body corporate, and Hatch Ltd., a body corporate, formerly known as SGE Acres Limited, and DYWIDAG Systems International, Canada Ltd., a body corporate Defendants v. Bermingham Construction Limited, and Atlantic Sub-Sea Construction and Consulting Incorporated Third Parties Decision:

Summary Judgment Motion Judge: The Honourable Justice Denise M. Boudreau Heard: Final Written Submissions: July 5, 6 and 7, 2016, in Halifax, Nova Scotia September 13, 2016 Counsel: Michael Dunphy, QC, for the Applicant Bermingham Construction Limited Gordon Proudfoot, QC, for the Respondent Hatch Ltd. By the Court: Introduction [ 1 ] This is a

summary judgment motion (on evidence) made by third-party Bermingham Construction Limited (“Bermingham”) in the context of a case-managed, multi-party litigation. [ 2 ] Proceedings were originally commenced by way of Notice of Action, filed by the plaintiffs Martin Marietta Materials Canada Limited (“Martin Marietta”) and Factory Mutual Insurance Company (“Factory Mutual”) against the defendants Beaver Marine Limited (“Beaver”), SGE Acres Limited (“SGE”), and DYWIDAG Systems International, Canada Ltd. (“Dywidag”) in October 2011.

The claim relates to a steel sheet pile wharf constructed for Martin Marietta (and insured by Factory Mutual) at its quarry located in Auld’s Cove, Nova Scotia, in 2005/2006.

The wharf was built by Beaver (general contractor) and designed by SGE, using components manufactured by Dywidag. [ 3 ] In November 2008, part of the wharf collapsed into the ocean, leading to the present litigation. [ 4 ] The originating action has been amended twice by the plaintiffs; once in December 2011 (to amend the name of the second defendant from SGE Acres Limited to Hatch Ltd. (“Hatch”)); and a second time in July 2015, to remove the following paragraphs:

[in relation to defendant Hatch] 27. (

v) They negligently approved and/or failed to recognize the fact that Beaver failed to anchor some of the steel pilings and toe pins inbedrock, which did not conform to the drawings and specifications that they have prepared, reviewed and/or approved; [in relation to defendant Beaver] 28. (iv) It negligently failed to anchor steel pilings and toe pins in bedrock as required by SGE’s drawings; and, [5] Defendants Hatch and Beaver both brought third-party claims against two other companies, both sub-contractors who workedon the project: Bermingham and Atlantic Sub-Sea Construction and Consulting Incorporated (“Atlantic”). [6] Beaver later withdrew its third-party claim against Bermingham. [7] The two third-party claims against Atlantic, were the subject of a separate

summary judgment motion brought by Atlantic (seeMartin Marietta Materials Canada Ltd. v. Beaver Marine Ltd., 2016 NSSC 226). [8] The third-party claim, by Hatch against Bermingham, is the subject of the present motion. The claim was filed in July 2012,and identified Bermingham as “engaged in the business of providing construction services, particularly in the areas of constructingmarine foundations and underwater drilling”.

Hatch submitted that should the plaintiffs be successful, in whole or in part, Bermingham(and Atlantic) should indemnify Hatch “as a result of their negligent assembly, construction and installation of the steel sheet pile systemwhich caused or contributed to the collapse of the wharf”. [9] In their defence to the third-party action, Bermingham confirmed being a subcontractor to Beaver, hired to “drill and groutsockets and install toe pins into the bedrock in order to anchor steel pilings for a new bulkhead wharf”, but denied any liability for thecollapse. [10] This third-party claim was amended in April 2016, to include the following: 24.

However, should the Plaintiffs succeed in whole or in

part in their claim, Hatch says that Bermingham was negligent in that theyfailed to install the toe pins in bedrock in accordance with the design and specifications and in those installations Bermingham failed tokeep and/or failed to provide any records or proof that they conform exactly to the design drawings and the plans of Acres/Hatch andfailed to keep the necessary records that are expected of a drilling operator performing critical work that is not visible to be inspected inan underwater and underground install. … 26.

Further, Hatch says that Bermingham negligently failed to secure certain steel toe pins properly when drilling for the installation ofthe toe pins into the harbour bottom and bedrock by failing to drill the holes to the correct depth, or they missed certain specificpositions for the toe pins as set out in the design plans. [11] The applicant in the present motion, Bermingham, seeks that the claim brought by Hatch be dismissed. They submit there areno genuine issues of material fact, in particular in relation to causation. The respondent, Hatch, opposes the

summary judgment motion. [12] I should add that following the hearing of this motion, I was advised that the respondent sought to introduce new material thatthey had received from the applicant in response to interrogatories. It would appear that the interrogatories were served June 16, 2016,and the responses provided July 21, 2016. I agreed to consider that additional material and I have done so in making this decision. [13] Both applicant and respondent have filed voluminous materials in support of their position.

In particular, the respondent hasbrought forward a proposed expert witness, Frank Villano; the applicant opposes this evidence and submits that it is inadmissible. I willfirst deal with this preliminary issue. Report of Frank Villano [14] Mr. Villano is a professional engineer from White Plains, New York, USA, retained by the respondent Hatch to provide anexpert report in response to this motion. He presented his report to the court and was cross-examined. [15] The applicant challenges the admissibility of this evidence on this motion. It submits that Mr.

Villano’s evidence should bestruck in its entirety, as his evidence does not meet the minimum requirements for expert testimony. [16] The applicant referred to the well-known “Mohan” test for admissibility of expert evidence (R. v. Mohan (SCC), [1994] 2 SCR 9), and the four requirements that must be met in order to proffer such evidence: 1. Relevance; 2. Necessity inassisting the trier of fact; 3. Absence of an exclusionary rule; and 4. A properly qualified expert.

It is the applicant’s submission that Mr.Villano does not meet two of those requirements, i.e., necessity and proper qualification. [17] In relation to necessity, the applicant contends that the evidence of Mr. Villano addresses issues that are not matters of expertevidence, and furthermore, usurps the role of the trier of fact. For example, Mr. Villano purports to provide an

interpretation of theMartin Marietta/Beaver contract; he purports to resolve disputed questions of fact; and so on. [18] In relation to qualifications, the applicant’s concerns are not with Mr. Villano’s credentials, education, or experience. It isacknowledged that Mr. Villano is an engineer who could, in theory, speak to engineering issues such as those involved in this case.

Rather, the applicant’s concerns are in respect of Mr. Villano’s independence. It is their submission that Mr. Villano is not objective, and that he has come to court as an advocate for the respondent, to provide the court with the respondent’s theory of the case. Independence [ 19 ] The Nova Scotia Civil Procedure Rules state, as mandatory, the following requirements in relation to expert evidence: 55.04

(1) An expert’s report must be signed by the expert and state all of the following as representations by the expert to the court: (

a) the expert is providing an objective opinion for the assistance of the court, even if the expert is retained by a party; (

b) the witnesses prepared to testify at the trial or hearing, comply with directions of the court, and apply independent judgment when assisting the court;

c) the report includes everything the expert regards as relevant to the expressed opinion and it draws attention to anything that could reasonably lead to a different conclusion; … [ 20 ] The leading case in relation to the independence of expert witnesses is the very recent White Burgess v. Abbott and Haliburton 2015 SCC 23 . The facts of that case bear some resemblance to those before me today. In White Burgess , in the context of a

summary judgment motion, the respondents had brought forward a forensic accountant as an expert witness. The applicant objected, noting that the accountant had a vested interest in the outcome of the motion due to her employment. The motions judge agreed and struck the expert evidence in its entirety, finding that it was not objective and impartial. This decision was overturned on appeal. [ 21 ] The Supreme Court of Canada, having heard the case, took the opportunity to confirm that an expert witness must be “fair, objective and non-partisan” ( White Burgess , para. 46 ).

Having said that, the court was faced with the next logical question: what if the expert is unable or unwilling to do so? Do concerns about an expert’s objectivity and impartiality go to the admissibility of the evidence, or simply to weight? [ 22 ] The Supreme Court concluded that there was, in fact, a threshold admissibility requirement for expert evidence. It held that trial courts have an important gatekeeping function in relation to all evidence, to ensure that it is examined at the time it is sought to be admitted.

Expert evidence must meet a certain minimum quality, or “threshold”, in order to be admissible.

Assuming a proposed expert’s evidence meets that threshold, the evidence will be admitted, and any remaining concerns about it are to be considered as part of the weight to be given to the evidence. [ 23 ] The court described the procedure, and the onus on the various parties, thus: [47] … While I would not go so far as to hold that the expert’s independence and impartiality should be presumed absent challenge, my view is that absent such challenge, the expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met. [48] Once the expert attests or testifies on oath to this effect, the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty.

If the opponent does so, the burden to establish on a balance of probabilities this aspect of the admissibility threshold remains on the party proposing to call the evidence. If this is not done, the evidence, or those parts of it that are tainted by a lack of independence or impartiality, should be excluded…. [ 24 ] The court confirmed that this analysis engages the fourth element of the Mohan test, the “qualified expert”. In other words: 53. … A proposed expert witness who is unable or unwilling to fulfil his duty to the court is not properly qualified to perform the role of an expert.

Situating this concern in the “properly qualified expert” ensures that the courts will focus expressly on the important risks associated with biased experts. [ 25 ] The court went on to point out that, in most cases, threshold reliability will be met, and concerns about independence will go to weight: [49] This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it.

The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible.

In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court.

Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is

unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence. (emphasis is mine) [ 26 ] The White Burgess fact scenario involved expert evidence in the context of a Nova Scotian

summary judgment motion. The court went on to specifically clarify the analysis to be followed in such cases: [55] I must say a brief word about the procedural context in which this case originates - a

summary judgment motion. (I note that these comments relate to the

summary judgment regime under the Nova Scotia rules and that different considerations may arise under different rules.) It is common ground that the court hearing the motion can consider only admissible evidence. However, under the Nova Scotia jurisprudence, which is not questioned on this appeal, it is not the role of the judge hearing a

summary judgment motion in Nova Scotia to weigh the evidence, draw reasonable inferences from evidence or settle matters of credibility: Coady v. Burton Canada Co. 2013 NSCA 95 ; Fougere v. Blunden Construction 2014 NSCA 52 . Taking these two principles together, the result in my view is this. A motions judge hearing a

summary judgment application under the Nova Scotia rules must be satisfied that proposed expert evidence meets the threshold requirements for admissibility at the first step of the analysis, but should generally not engage in the second step cost-benefit analysis. That cost-benefit analysis, in anything other than the most obvious cases of inadmissibility, inevitably involves assigning weight - or at least potential weight - to the evidence. [ 27 ] Having instructed myself on the law, I now move to the case at bar, to determine whether the evidence of Mr.

Villano meets the threshold for admissibility in the motion before me. Mr. Villano has provided, both in his report and in his oral evidence, confirmation that his opinion is “objective”. Has the applicant raised a “realistic concern” about this evidence, as is required? If so, can the respondent meet its burden, on a balance of probabilities, that this proposed evidence should be accepted? [ 28 ] Mr. Villano’s report was dated June 15, 2016. It, and its affidavit in support, notes that he was retained by counsel for Hatch/Acres, Mr.

Proudfoot, to address the work done by Bermingham Construction during the 2005 construction of the wharf. [I] have been requested to do an analysis, comment and expert report analysing Bermingham Construction Limited’s possible role in the various issues contributing to the failure of the Auld’s Cove wharf. [ 29 ] Before addressing the report itself, I will review its background. It would appear, based on the evidence before me, that Mr. Villano formally started work on this matter on May 3, 2016. On that date he attended at the offices of Boyne Clark, solicitors for the respondent, and met with Mr. Proudfoot.

Mr. Villano testified that his intentions in his first meeting (or “interview”) with Mr. Proudfoot, were to get the starting information he needed. [ 30 ] Mr. Villano was at the offices of Boyne Clark for two days. During that time he met with Mr. Proudfoot and reviewed documents; that document review occurred sometimes alongside Mr. Proudfoot, and sometimes alone. Mr. Villano testified that he spent about half the day on May 3 with Mr. Proudfoot, and somewhat less than half the day with Mr. Proudfoot on May 4. [ 31 ] Mr. Villano is aware, and acknowledged, that this file involved a huge number of documents.

It would appear from a prior email to Mr. Villano that Boyne Clark had agreed to “have all of our material organized and prepared for your review”. Mr. Villano testified that he had identified certain documents he would need to see; however, he also acknowledged that, to some extent, he trusted Boyne Clark to provide him with the documents he would need. [ 32 ] On May 3, 2016, Mr. Villano took approximately 50 pages of notes. He agreed that most, if not all, of the information/points contained in these notes came from Mr.

Proudfoot during their very first discussion. [ 33 ] It must be said that, in reading these notes, they clearly read as a

summary of Hatch’s theory of its case against Bermingham, as Hatch has outlined it in its pleadings and briefs. In other words, starting on day one, the position of Hatch was explicitly outlined to Mr. Villano. Issues and/or concerns were identified; possible answers were suggested; theories were outlined and expanded upon. [ 34 ] I have extracted some of the more notable passages from Mr.

Villano’s notes, starting with the following: Beaver sued… Atlantic and Birmingham… But Hatch… All are subcontractors are on hook/liable by Beaver… Beaver dropped Birmingham third-party… Toe pins - something wrong. (p. 3) [ 35 ] Mr. Villano agreed, on cross-examination, that the “something wrong” comment was made by Mr. Proudfoot, and Mr. Villano wrote it down. It was one of multiple issues raised by Mr. Proudfoot in their first meeting. Mr. Villano then drew a sketch in his notes, showing a bulge at the bottom of the steel sheet pile; he agreed that this sketch also was based on Mr.

Proudfoot’s comments. [ 36 ] At page 5 Mr. Villano noted: No record-keeping by Bermingham. He agreed that this comment also came from Mr. Proudfoot. [ 37 ] At page 10 he noted:

Martin Marietta...VULCAN is competitor… ECONOMICS!!! This comment was also made by Mr. Proudfoot. Mr. Villano agreed that it was possible that Mr. Proudfoot had made the comment that Martin Marietta had made certain decisions in this project in order to save money. [ 38 ] At page 11: Problem… Grant McCharles continued to change design prior to const. … Communications… Beaver dealing with Subs… Didn’t pass along changes. These comments came from Mr. Proudfoot. [ 39 ] At page 12: 1. What did divers do wrong 2.

What did Birmingham do wrong (notation “FPV”) MM… Never built wharf… Don’t have quarry on waterfront… Unique project… CHEAP INSPECTION!! These comments came from Mr. Proudfoot. [ 40 ] At page 19: Ambassador needed conveyor belt self unload. It was broken called sea Gulf brings it down… 6 tons +-… Mr. Villano is speaking here about the possible use of a crane on the wharf at some point before the failure. Mr. Villano agrees that this information also came from Mr.

Proundfoot, who told him that a crane had possibly been placed on the wharf, in the area of the failure, at some point. [ 41 ] At page 20: … Cheap … tug assist Mr. Villano could not recall if Mr. Proudfoot actually used the word “cheap” in their discussions, but said “he (Mr. Proudfoot) knew it was expensive”. [ 42 ] Mr. Villano agreed that information on pages 21 to 23, containing notes about various issues, all came from Mr. Proudfoot.

At page 23: BULDGE * bent… Donnie from M Marieta… Bottom of wall moving out… Mike… Tipping out but no evidence... pins not in. [ 43 ] At page 28: TOE PINS – SCOUR ISSUE… Why didn’t they hold In cross-examination, Mr. Villano testified that this represented his question, not Mr. Proudfoot’s. Mr. Villano acknowledged that this question presumes the pins did not hold. [ 44 ] At page 34, we see a sketch of the outpans and toe pin locations, as well as specs for drilling. Mr. Villano was unsure if this information came from Mr. Proudfoot or from documents. Further notes say: weathered stone!!!! Severely fractured!!

Mr. Villano agreed that these comments came from Mr. Proudfoot. [ 45 ] At page 35, there is more discussion about drilling, again coming from Mr. Proudfoot. At page 36: Radcliff - says never oversaw toe pin - but ok w/ toe pins This information also came from Mr. Proudfoot. [ 46 ] At page 38: do not use diesel hammer but used it!! OVERDRIVE TSS This information came from Mr. Proudfoot (although Mr. Villano noted that he also saw the reference in a document). [ 47 ] Mr. Villano also acknowledged watching an underwater video of the site with Mr. Proudfoot, during which time he was provided with Mr. Proudfoot’s

interpretation of what they were seeing. [ 48 ] Mr. Villano’s notes, starting at page 50, then deal with his work on May 4. At page 53 he wrote, then crossed out: WHAT ARE THEY CLAIMING? * UNDER DESIGNED [ 49 ] At page 54: WHAT ARE WE SAYING ? * SCOUR…. * NOT INSTALLED RIGHT - backfill operations and materials - angle of repose * known

problem w/ Subsidence!! - Sea Gulf could not deliver Mtls - first Day bulge - Exhibit 2. Mr. Villano agrees these notes also came from discussions with Mr. Proudfoot. [ 50 ] At page 57: ASS… Need to say 1. If one tie rod (lower has biggest load) it popped = catastrophic failure… Photo # 2 bulging… Hand tightening!! No hydraulic ST… Beveled washers. These notes refer another report that Mr. Villano was preparing for Hatch, in relation to third-party Atlantic. In cross-examination, Mr. Villano was asked if the expression “need to say” came from Mr. Proudfoot. Mr.

Villano testified that these were only notes to himself, where he was reminding himself what info to look for. However, he could not explain his use of the expression “need to say”. [ 51 ] At page 59: FPV… Birmingham-toe pins 1. Not in the end pan... Evidence Gordon Reid… Says didn’t get in the end pan… Info from Ratcliff.. Damage to bits + photos of….Gordon Reid – “deflection”… Why did they have to move out of alignment…. Diesel over driving piles… Deflection Mr. Villano agrees all this came from Mr. Proudfoot. “FPV” is a reference to himself. [ 52 ] At page 60: ! Didn’t drill the holes to spec!!!

Severely fractured… Outside end pan… Proven by mushrooms on video and photographs of drilling Exhibit 2…. Bulging out not tipping. Mr. Villano agrees that this information came from Mr. Proudfoot, although he himself saw the “mushrooms” on the underwater video. [ 53 ] At the risk of repetition, it is abundantly clear that a very significant amount of these first two days was spent by Mr. Villano “interviewing” Mr. Proudfoot. This “interview” essentially consisted of Mr. Proudfoot giving Mr. Villano Hatch’s position as to why Bermingham was liable.

Some of the allegations were supported by documents provided to Mr. Villano. [ 54 ] This evidence is of concern. Obviously any expert has to, quite properly, start somewhere. Meeting with counsel (who retained him/her) is a fairly typical first step for an expert; he/she needs to be told what the case is about, what they are being retained to do, and what specific questions need to be addressed in the report. Experts routinely meet with counsel for these purposes, as well as others.

That is not generally problematic. [ 55 ] Having said that, such meetings carry certain inherent risks which must be addressed and managed. Both counsel and proposed expert must remain vigilant that their roles remain clear, and that their boundaries are not overstepped. [ 56 ] Mr. Villano described these discussions with Mr. Proudfoot as simply giving him “key ideas to look into”. Frankly, that is not how his notes read, and that is not what his evidence showed to me. It is clear to me from the evidence that Mr.

Villano spent the bulk of his time on those crucial first days allowing himself to be explicitly “schooled” in the position and theory of Hatch, in their case against Bermingham. [ 57 ] By the end of May 4, Mr. Villano had already started a draft report. He then returned to New York to continue his work drafting his report(

s) through May and early June. He then arranged another meeting with Mr. Proudfoot in Nova Scotia. In preparation for this meeting, Mr. Villano sent an email to Mr. Proudfoot on June 6 saying: “I explained it is imperative for your

schedule for us to do this in person. It will not go smoothly if we are not sitting face to face.” [ 58 ] In cross-examination, Mr. Villano could not explain the meaning of this comment. He acknowledged that, in arranging that subsequent meeting, he made no specific request to see any further documents. [ 59 ] The second meetings between Mr. Villano and Mr. Proudfoot took place June 8 to 10. Mr. Villano testified that a “skeleton report” was complete before meeting with Mr. Proudfoot; he agreed that court Exhibit 15 was that early draft report. [ 60 ] Mr.

Villano acknowledged that during the June meetings, the report went through another series of drafts; Mr. Villano would provide a draft to Mr. Proudfoot for his “input”; Mr. Proudfoot would then point out other information that he should consider and the document would be revised. Mr. Villano had no specific recollection of any of those suggestions, nor do we have those drafts. [ 61 ] In fact, no one knows how many of these drafts were prepared. No one knows what suggestions were made by Mr. Proudfoot, nor whether they were accepted by Mr.

Villano, nor what was changed from one draft to the next. [ 62 ] It is clear that court Exhibit 15 (the pre-June 8 draft) is very different than the final report that was prepared. Much detail has been added and, in some cases, entire sections have been added (“record keeping”; “scour”). The language of the final document is significantly stronger (e.g., the use of words such as “abysmal”; “catastrophic”). [ 63 ] Mr. Villano stands by his final report as his work. However, we cannot know, since he cannot tell us, what changes were suggested by Mr. Proudfoot, or which, if any, were accepted.

This is, again, troubling in the context of the allegations of the applicant in respect of Mr. Villano. [ 64 ] Mr. Villano denied crafting a report that simply repeated the theories given to him by Mr. Proudfoot. However, he acknowledged that there is nothing in his report which is inconsistent with the information/theories first provided by Mr. Proudfoot, back on May 3 and 4; his report repeats, and expands upon, those very same theories. In fact, everything raised by Mr. Proudfoot found its way

“as is” into Mr. Villano’s report. [ 65 ] Mr.

Villano’s report starts by noting Bermingham’s involvement: It was Bermingham’s scope of work to install toe-pins (12- ¾ inch steel pipe and concrete 16-foot long pins in every other “in-pan” of steel sheet pile on the Oceanside of the wall and socketed in “sound bedrock” beneath the harbour bottom) in combination with the threaded tie-rod and concrete anchor blocks held by a two-tier waler system with sheet piles driven to sound bedrock held by the overburden and specially engineered backfill, all of which comprised the system that would retain the engineered structure. (p. 11) [ 66 ] Mr.

Villano then moves on to discuss the contract between Martin Marietta and Beaver, in relation to the work Bermingham was subcontracted to do (pp. 13-16). He starts by saying: It is my opinion that the wharf structure failure is directly related to improper construction techniques of both Bermingham and Beaver Construction and violations in whole or in part of the conformed specifications in the contract… (p. 13) [ 67 ] Mr. Villano next provides a list of contract specifications that, in his opinion, Bermingham did not follow.

No explanation is given as to how any of these items was “directly related” to the failure. [ 68 ] Mr. Villano refers to “abysmal” record keeping, which he says is inappropriate for a project of this magnitude (p. 33). He also refers to the money issue: “However because Martin Marietta obviously wanted to use the dolphins to save costs when building the wharf…” (p. 36). He mentions the use of diesel drive piling hammers, used by Beaver, but forbidden for use by Bermingham (p. 18).

He concludes “Beaver construction over-drove the steel sheet piles” (p. 19), which caused, he says, Bermingham to not properly install the toe pins. [ 69 ] Mr. Villano also discusses scour, and references some discovery evidence in relation to scour issues/overburden.

He then makes the following statement: Notably ships were usually docked at Martin Marietta with their stern towards the causeway and their prop wash pounding the northwest corner of the wharf where the structure failed due to the forceful power of the prop wash. (Emphasis is mine) (p. 36) [ 70 ] No factual foundation is provided for that conclusion. [ 71 ] Mr. Villano refers to tug assist, and theorizes that the failure to use tugboats could increase scour damage; he again notes the expense of these boats (p. 36).

He refers to the “mushrooms” seen on the underwater video, evidencing the site of toe pin drilling (p. 32). He refers to “severely fractured or weathered bedrock” as being misleading to drillers (pp. 28-29). [ 72 ] Mr. Villano states: Despite counsel for Bermingham repeatedly suggesting the failing wall was “tipping out” on the afternoon of November 14, 2008 to virtually all witnesses, Mr.

Martell and Exhibit 2 photographs are clearly indicative that there was no “tipping” of the wall on November 14, 2008 before the collapse but instead a bulging or bowing out at the top and bottom consistent with the initial failure of a lower waler and push-out of the wall at the bottom to the toe pins and subsequent lateral movement of the steel sheet piles. Clearly the manner in which the wall “bowed out” in a dynamic fashion indicated the toe pins were the last bastion to hold the wall structure in place.

In my opinion it is highly probable that had the toe pin locations been in the proper in-pans and in conformance with the design and not a number feet from the offshore face of the sheet pile wall failure would not have occurred. (Emphasis is mine) (p. 35) [ 73 ] Mr.

Villano concludes his report by saying: All of these are some of the multitude of the missteps, errors and below standard workmanship by Bermingham which in my opinion led to Bermingham being responsible in whole or in part for the failure of this wharf on November 14, 2008. (p. 39) [ 74 ] Counsel for the applicant points out that this conclusion is unsupported by the evidence, both in reality and as described in this report. [ 75 ] The applicant further points out that, in Mr.

Villano’s entire report, he never makes any reference to contrary evidence; his references are limited to that evidence first pointed out to him by Mr. Proudfoot, which supports Hatch’s theory, and which Mr. Villano is advocating. The applicant notes that there is, in fact, contrary evidence to these theories which exists. They submit that by ignoring this evidence, Mr. Villano has clearly breached his duty to this court, as defined by our Rules and the common law. [ 76 ] Having reviewed the evidence before me, I must agree with the applicant as to this point. This is a significant failing in Mr.

Villano’s report and evidence. [ 77 ] For example, in the above-noted quote from page 35, Mr. Villano appears to agree that the lower waler was the initial problem. However, he completely fails to address the discovery evidence of engineer Michael Martell (hired by Martin Marietta to provide an opinion as to the cause of the failure). Mr. Martell testified that he believed the lower waler to be the initial problem, due to the under- design of a plate (court Exhibit 1, Tab 6, p. 72):

Q. Did you ever come to a conclusion as to what type of failure the Martin Marietta wharf had? A. We have an opinion. Q. Yes. And what is that opinion? A. Our opinion or my opinion is that the lower waler tie back system failed which caused the wall to bulge out at that level. The void created by that bulging would have caused the soil in the upper regions to fall to fill that void. And hence that’s the gaps that they saw opening up behind the wall prior to the collapse. And once it reached the point of the critical load it just gave way. … Q. Yeah. When did you reach that conclusion Mr. Martell? A.

Well I think after we had done a preliminary calculation and saw the under-design of the various components or what appeared to be an under-design of the components it started to become clear to us that if these components were under-designed that was likely the failure mechanism. [ 78 ] This evidence is, potentially, a problem for the respondent: the design of this wharf was their responsibility. Mr. Villano did not address this area of potential liability for the respondent. He never even mentions it. [ 79 ] Mr. Villano also did not address other areas of Mr. Martell’s discovery evidence.

For example (court Exhibit 1, Tab 8, pp. 91- 92): Q. And based on your assessment at the time of the failure, and when you’re doing your tow pin assessments, is it fair to say that you did not believe the existence, or non-existence, of tow pins in areas 54 to 58 were a likely contributing cause because they were away from the failed area? A. That’s correct. Q. And, in fact, your assessment of the tow pins and the SSP in the area of the failed SSP indicated that based on what you could determine that the tow pins and the SSP had been installed according to the design. A. As far as we could tell, yes. Q.

And as I understand from Mr. Morrison’s question to you, there is no information that has come to your attention since, to suggest that your opinion in your November 28, 2008 email is incorrect. A. That’s correct. Q. Now, if the failure occurred because the tow pins were inadequate or the SSP was not secured into the bedrock, that would result potentially, I guess, from failure mode of the bottom of the SSP kicking out. Is that right? A. That’s correct, yes. Q. And did you see any evidence, or have you heard of any evidence, to suggest that the mode of failure was the bottom of the SSP kicking out? A.

I have not seen anything to that effect. Q. And have you heard of anything to that effect? A. No, I have not heard of anything to that effect. [ 80 ] My point here is not to say that I accept the evidence of Mr. Martell, but simply to point out that this is clearly contrary evidence to the theory that the toe pins failed. It was completely ignored by Mr. Villano. [ 81 ] Mr. Villano also ignored other fairly crucial evidence. I note the evidence of Greg Burke of Beaver, taken in January of 2015 (court Exhibit 1, Tab 11, p. 98): Q.

Now, if we look at the H-beam that goes vertically and we look above the right-hand side of that H-beam and we can see the concrete cap wall -- the concrete cap in the wall, to the west of that. Would you agree with me that that all appears to be leaning into the Strait? A. Yes. Q. And that’s indicative of the top of the wall leaning towards the Strait? A. That’s correct. Q. And did you understand that was a mechanism of failure of the portion of the wall that actually did fall into the Strait, that it effectively moved out -- the top moved out-- and fell into the Strait?

A. Yes. MR. PROUDFOOT: How would he know? THE WITNESS: Because we recovered steel sheet pile that was bent that way. ---BY MR. DUNPHY: Q. Okay. Do you want to tell me about that please? MR. DUNPHY: Thanks, Mr. Proudfoot. MR. PROUDFOOT: Trying to find the truth. BY MR. DUNPHY: Q. Yes, can you tell about the SSP that you recovered and what was found? A. Yes, I don’t know if there are photos here that show it. There were some photos, I believe, Harvey, correct me if I’m wrong, that did show some of the steel sheet pile that we recovered during the demolition process. MR. MORRISON: I don’t remember seeing them.

THE WITNESS: You don’t remember seeing them. Okay, maybe I’m dreaming. BY THE WITNESS: There were sheet pile that we extracted. We’ll go back to the picture that you had pointed out, 2766/12 on the -- this is the western corner of the wharf. Q. Yes. A. And part of the north face was still in place after the failure. So we went in – Q. Part of the north face at the western corner was still in place? A. Correct. There was a short

section of it. So the concrete cap beam was broken off with a hydraulic hammer and then a vibratory hammer was put on those steel sheet pile and they were extracted and removed. And when those sheet pile were brought up, you could see they were no longer vertical. They had actually bent around the pivot point somewhere up from the base. So if this is the bottom of the sheet pile. Q. Yes. A. Up from the bottom, and again, it varied on the depth the sheet pile seemed to be installed into the overburden. But the top portion had bent about that pivot point.

So that tells me that the toe of the sheet pile wall did not move. … Q. Okay. And so these were pulled up and taken onshore, were they, these SSPs? A. Yes. Q. And what it showed was the bottom of the SSP was not bent at a lower

part indicating that it had kicked out over the toe pin nor was it a kind of a straight -- there was an actual pivot point— A. There was a bending point there in the steel sheet pile and it showed to me that the toe the steel sheet pile remained in place when the wall was falling and – Q. Bending over. A. Bending over, yes. Q. And you have any recollection, just order of magnitude, the type of distance were talking about between the pivot point and the bottom of the SSP?

A. 12 to 15 feet and that’s very approximate. [ 82 ] Again, I make no finding as to this evidence, but, on its face, it certainly appears to refute the suggestion that the toe pins failed. Mr. Villano completely fails to address this evidence; in cross-examination he indicated that he did not see it. [ 83 ] It is clear, and I agree, that Mr. Villano made absolutely no effort to challenge the positions put to him by Mr. Proudfoot, or to seek any contrary possibilities; on the contrary, Mr. Villano spent all his (limited) time substantiating them. [ 84 ] In addition to Mr.

Villano’s failure to address contrary evidence, the applicant points out that at times he misstated the evidence

to bolster his claims. Having reviewed all of the evidence before me, I must agree with that as well. [ 85 ] For example, Mr. Villano suggests at page 35 that no one, other than counsel for the applicant, described the failure as a “tipping”: Despite counsel for Bermingham repeatedly suggesting the failing wall was “tipping out” on the afternoon of November 14, 2008 to virtually all witnesses, Mr.

Martell and Exhibit 2 photographs are clearly indicative that there was no “tipping” of the wall on November 14, 2008 before the collapse but instead a bulging or bowing out at the top and bottom … [ 86 ] In fact, many witnesses described the failure as a “tipping”: Craig Hodder, Dennis Kaufman, and Grant McCharles, among others. Furthermore, the reference to “bulging” by Mr. Martell in his discovery does not reference a “top and bottom” bulge (court Exhibit 1, Tab 6, p. 73) : Q. And where with this bulging have occurred? A. It likely would have occurred below water. Nobody would have seen it. Q.

Would it have occurred at the level of the lower waler? A. Probably. [ 87 ] In cross-examination, Mr. Villano acknowledged that he had misunderstood the evidence of “bulging” from Mr. Martell’s discovery. It was also acknowledged by Mr. Villano that discovery Exhibit 2, (referred to in his report) also showed tipping. This is significant because if one accepts that the wall tipped forward, while remaining attached at its base, it might perhaps prove difficult to attach liability to Bermingham. Mr. Villano’s use of the word “bulging” is also significant, since it was the word first used by Mr.

Proudfoot on May 3. [ 88 ] Mr. Villano also referred to the evidence of Stephen Scholes, who he says testified that, in the days before the failure, two large ships were docked at the same time at the wharf, for approximately two days; and that during that time a crane, weighing approximately 40 tons, was brought onto the wharf (p. 37). [ 89 ] Mr. Villano does not clarify that, in Mr. Scholes’ testimony, the crane was at the other end of the wharf from the failure (court Exhibit 7, Tab 98). Nor does Mr. Villano explain how this would be relevant to his analysis of the failure. [ 90 ] Mr.

Villano used a photograph of the wharf to point out tire tracks on the affected end of the wharf. Mr. Villano does not explain the significance of those tire tracks, nor how they would relate to the discussion of the crane. [ 91 ] Mr. Villano talked about the evidence of Doug Ratcliff, stating (p. 33): On discovery, Doug Ratcliffe, Superintendent for Bermingham was asked who was overseeing their work at the drill head and he indicated Brian MacLeod. After questioning he appears to admit that it would seem Mr.

MacLeod was not there at all simply recording when he heard the toe pin drilling started and stopped from his work station at the other end of the wharf. [ 92 ] In fact, Mr. Racliffe’s evidence was as follows (court Exhibit 3, Tab 7, p. 151): Q. …Was there anyone from Beaver looking over your shoulder while you were doing your work for Bermingham? A. Not looking over our shoulder but there were Beaver people around. Q. Coming and going? A. Yes, and the one guy that was supposed to be doing the recording was there most of the time. Q. And who was that? A. Brian --- MR.

MORRISON: MacLeod. [ 93 ] And later (court Exhibit 3, Tab 8, p. 206): Q. So Mr. MacLeod was present on the barge? A. Most of the time, yes. [ 94 ] All of these concerns give me great difficulty in accepting that Mr. Villano’s report and evidence pass the threshold for

admissibility of expert evidence, of “fair, objective and nonpartisan” opinion evidence. [ 95 ] To be fair to Mr. Villano, he had precious little time to review the evidence in this case at all, much less in depth. As has been noted by counsel, disclosure in this matter is extremely voluminous; it has reached over 10,000 pages of discovery, and much more than 10,000 pages of documents. Mr. Villano did the bulk of his work, at least from the information gathering point of view, in two days. He chose to spend a significant portion of those two days speaking with Mr. Proudfoot. [ 96 ] I estimate that Mr.

Villano was left with approximately one day (half on May 3, half on May 4) to review the totality of the documents: to confirm/refute the respondent’s theories, or to explore alternate theories. Mr. Villano could not possibly have seen all of the evidence he needed to see in that time, nor did he. The evidence he did see confirmed the theories that were discussed by he and Mr. Proudfoot. Mr. Villano either did not see, or misunderstood, the fairly crucial contrary evidence. Whether this was a conscious choice on Mr. Villano’s part, or a series of simple errors, or a result of lack of time, is inconsequential.

Similarly, whether it was practically impossible for Mr. Villano to fulfill his duty to this court, or whether he chose to ignore it, is inconsequential. Mr. Villano’s efforts amounted to a shortcut. That is unacceptable. [ 97 ] Mr.

Villano’s report repeats, in detail, and at times verbatim, the specific theories and concerns of the party who hired him; it completely ignores the significant contrary evidence; it misstates evidence to benefit those starting theories. [ 98 ] To return to the analysis of White Burgess , I therefore find that the applicant has easily met its burden in showing that there is a “realistic concern” that the evidence of Mr. Villano should not be received. [ 99 ] The respondent then has the burden of showing, on a balance of probabilities, that the evidence of Mr. Villano should be admitted.

For all the reasons I have outlined, I have found that Mr. Villano did not fulfill his duty to this court as an expert. I find Mr. Villano’s evidence to be partisan, unreliable, and unhelpful. I have no confidence in his conclusions. I conclude that the evidence of Mr. Villano should not be admitted as evidence in this motion. In my view it does not meet the basic threshold requirements for admissibility. [ 100 ] I am well aware that a decision to reject opinion evidence as inadmissible is a rare and somewhat drastic result. It is to be reserved for those clearest of cases.

It is my considered and definite conclusion that this is one of those cases.

Summary Judgment [ 101 ] The relevant Rule is found at 13.04:

Summary judgment on evidence in an action 13.04

(1) A judge who is satisfied on both of the following must grant

summary judgment on a claim or a defence in an action: (

a) there is no genuine issue of material fact, whether on its own or mixed with a question of law, for trial of the claim or defence; (

b) the claim or defence does not require determination of a question of law, whether on its own or mixed with a question of fact, or the claim or defence requires determination only of a question of law and the judge exercises the discretion provided in this Rule 13.04 to determine the question.

(2) When the absence of a genuine issue of material fact for trial and the absence of a question of law requiring determination are established,

summary judgment must be granted without distinction between a claim and a defence and without further inquiry into chances of success.

(3) The judge may grant judgment, dismiss the proceeding, allow a claim, dismiss a claim, or dismiss a defence.

(4) On a motion for

summary judgment on evidence, the pleadings serve only to indicate the issues, and the subjects of a genuine issue of material fact and a question of law depend on the evidence presented.

(5) A party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence by affidavit filed by the contesting party, affidavit filed by another party, cross-examination, or other means permitted by a judge.

(6) A judge who hears a motion for

summary judgment on evidence has discretion to do either of the following: (

a) determine a question of law, if there is no genuine issue of material fact for trial; (

b) adjourn the hearing of the motion for any just purpose including to permit necessary disclosure, production, discovery, presentation of expert evidence, or collection of other evidence. [ 102 ] This new Rule does away with the two-part test that had existed previously ( Quadrangle Holdings v. Coady Estate 2016 NSSC 106 ; Drysdale v. Bev & Lynn Trucking 2016 NSSC 109 ). The burden remains on the applicant: if that party can satisfy the court that there is no genuine issue of material fact for trial, and no question of law requiring determination, the court must grant

summary judgment. In response, the opposing party is expected to put their “best foot forward” in showing what that material fact could be, or what that question of law could be. [ 103 ] The following comments from Coady v. Burton 2013 NSCA 95 provide assistance as to the “material fact for trial”: [87] …

2. The first stage is only concerned with the facts. The judge decides whether the moving party has satisfied its evidentiary burden ofproving that there are no material facts in dispute. If there are, the moving party fails, and the motion for

summary judgment isdismissed. … 4. The judge’s assessment is based on all of the evidence whatever the source. There is no proprietary interest or ownership in“evidence”. … 6. Proof at either stage one or stage two of the inquiry requires evidence. The parties cannot rely on mere allegations or the pleadings.Each side must ‘put its best foot forward’ by offering evidence with respect to the existence or non-existence of material facts indispute… 7. If the responding party reasonably requires disclosure, production or discovery, or the opportunity to present expert or other evidencein order to “put his best foot forward”, then the motions Judge should adjourn the motion for

summary judgment, either without day, orto a fixed day, or with conditions or a

schedule of events to be completed, as the judge considers appropriate, to achieve that end. 8. In the context of motions for

summary judgment the words “genuine”, “material”, and “real chance of success” take on their plain,ordinary meanings. A “material” fact is a fact that is essential to the claim or defence. A “genuine issue” is an issue that arises from or isrelevant to the allegations associated with the cause of action, or the defences pleaded…. … 10.

Summary judgment applications are not the appropriate forum to resolve disputed questions of fact, or mixed law and fact, or theappropriate inferences to be drawn from disputed facts. 11. Neither is a

summary judgment application the appropriate forum to weigh the evidence or evaluate credibility. 12. Where, however, there are no material facts in dispute, and the only question to be decided is a matter of law, then neithercomplexity, novelty, nor disagreement surrounding the

interpretation and application of the law will exclude a case from

summaryjudgment. [104] At a

summary judgment motion, each party is expected to put their “best foot forward” in making their submission that the mattershould/should not proceed to trial: … In the Court of Appeal and here, the case for the plaintiffs was put forward, not only on the basis of evidence actually adduced on thesummary judgment motion, but on suggestions of evidence that might be adduced, or amendments that might be made, if the matter wereto go to trial. A

summary judgment motion cannot be defeated by vague references to what may be adduced in the future, if the matter isallowed to proceed. To accept that proposition would be to undermine the rationale of the rule. A motion for

summary judgment must bejudged on the basis of the pleadings and materials actually before the judge, not on suppositions about what might be pleaded or provedin the future… (Canada (Attorney General) v.

Lameman 2008 SCC 14) [105] As pointed out by the applicant, one essential element of any negligence claim is causation: A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that thedefendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damages; and (4) that the damages were caused, infact and in law, by the defendant’s breach. ... (Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 , [2008] S.C.J. No. 27, atpara. 3) [106] Causation is a question of fact: 8. The test for showing causation is the “but for” test.

The plaintiff must show on a balance of probabilities that “but for” the defendant’snegligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence wasnecessary to bring about the injury - in other words that the injury would not have occurred without the defendant’s negligence. This is afactual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action againstthe defendant fails. (Clements v.

Clements 2012 SCC 32) [107] Clearly, therefore, where a plaintiff claiming negligence cannot show a causal connection between a defendant’s action(

s) and theloss suffered, that defendant may seek

summary judgment, and a court may dismiss that plaintiff’s claim (Szubielski v. Price 2013 NSCA151; Chan v. White 2014 NSSC 383). In MacNeil v. Bethune 2006 NSCA 21, the court stated: 28. Although he was listing relevant principles for a

summary trial, not a

summary judgment application, Green, J., as he then was, inMarco Ltd. v. Newfoundland processing Limited (NL SC), [1995] NJ No. 168 [TD] described the thresholdcommon to both as:

76…9. There will be a “genuine issue for trial” if the issue in question is not spurious and the issue relates to a material fact or point of law that is necessary to be decided to resolve the ultimate controversy between the parties. Obviously, there will not be a genuine issue for trial if the responding party can put forward no evidence that could constitute either a defence or a claim in law. In my view, in this case, after considering the evidence presented by all parties on the applications, it can be said with confidence that there was no controversy of fact or law that required resolution by a trial.

If the matter were permitted to go to trial, the plaintiffs would have no chance of success because they have no evidence to support their allegations that the damages they suffered were caused by or contributed to by any act or omission of the defendants. [ 108 ] A similar result was also reached in Kiden Used Furniture v. Pearson 2014 ONSC 4625 , where the plaintiff claimed against the defendant following a fire: [42] … To succeed, the plaintiff must also show that the fire was caused by the defendant’s negligence.

The plaintiff’s circumstantial evidence, even after making assumptions in the plaintiff’s favour regarding the cause identified by the defence expert, fails to prove any particular cause of the fire on a balance of probabilities, let alone that the defendant’s negligence caused the fire. [43] Thus, even if I make certain assumptions and conclusions that are favourable to the plaintiff and to some extent not called for on the material before me, I nonetheless conclude that there is no genuine issue for trial regarding the plaintiff’s negligence claim given the absence of an expert report demonstrating the requisite causation.

The plaintiff’s “cumulative circumstantial evidence” is insufficient. [ 109 ] I have carefully reviewed all of the evidence put before me on this motion. In my view, the evidence does not show any causal link between the applicant and the loss. The respondent has pointed to deficiencies in the applicant’s work, but deficiencies do not amount to evidence of causation. [ 110 ] To sum up: the applicant’s involvement in this project was the installation of toe pins, for the steel sheet pile wharf, at the ocean floor.

They did this work as a subcontractor to Beaver, who was the contractor hired by Martin Marietta for this project. The plaintiffs have now withdrawn any claim as against Beaver in relation to these toe pins; Beaver has also withdrawn its third-party claim against the applicant. [ 111 ] The respondent has argued that the toe pins were not installed to specifications, as contained in the contract between Martin Marietta and Beaver. That may or may not be true; however, that does not establish causation.

Causation would require a factual underpinning to the claim that, if the toe pins were installed improperly, such improper installation contributed to or caused the failure. [ 112 ] Other issues raised by the respondent are, similarly, not instructive as to causation. Poor record-keeping, if it occurs, does not cause a wharf failure. Inspections, whether they are done or not, properly or not, do not cause a wharf failure. [ 113 ] I make the following basic analogy: let us assume a car is manufactured with malfunctioning headlights.

That manufacturer would clearly have breached a duty of care to the purchaser of that vehicle. But if the vehicle is involved in an accident in broad daylight, when the headlights were not needed or used, the manufacturer could not possibly be liable on the basis of the headlight deficiency. Causation has not been established.

Similarly in the present case, even if the toe pins were improperly installed, if they did not contribute or cause this loss, the applicant could not be found liable. [ 114 ] Having reviewed the evidence before me, the bulk of it seems to confirm that the applicant’s work was properly done and, more importantly, that the toe pins held throughout. In responding to this

summary judgment motion, the respondent is expected to put its “best foot forward”; one cannot defeat such a motion by vague references to what “might be”, or what evidence one might later gather. I therefore must make this decision on the basis of the evidence before me. [ 115 ] According to the affidavit of Michael Dunphy (court Exhibit 3), there have been 26 witnesses discovered thus far in this proceeding, amounting to over 10,000 pages of discovery transcript. Some of those witnesses have spoken to the toe pin issue; their evidence is unanimous that the bottom of the sheet pile wall did not fail or move.

One might presume that this is why the plaintiffs (and Beaver) have now withdrawn claims relating to “toe pin failure”. [ 116 ] William DiRico (Martin Marietta’s designated manager) testified: (court Exhibit 1, Tab 1): Q. Okay. So it’s fair to say, at this stage, you’re not aware of any evidence that Bermingham failed to comply with its contractual obligations in the installation of the toe pins. A. No, I’m not aware of that. Q. And what, if any, evidence do you have that the toe pins in any way caused or contributed to the collapse of the wharf? A.

I’m not aware of any. [ 117 ] Engineer Bill Steiner (Martin Marietta employee) testified: (court Exhibit 1, Tabs 2/3): Q. After this initial-- or after December 17 the -- or November the 15 th , did you ever have any indication that the sheet piling did in fact kick out from the bottom?

A. No. In fact we did not encounter any information that it kicked out from the bottom first. It never kicked out from the bottom, to my knowledge, ever. Q. Okay. First, second or – A. First, second, later, or third, or ever. [ 118 ] Engineer Nicklaus Lloyd (Martin Marietta employee) testified: (court Exhibit 1, Tabs 4/5): Q. I see. Okay. So, based on that, you believed that the top had gone before the bottom – A. Correct. Q. -- and so the bottom hadn’t kicked out causing the top to go, in other words? A. Correct. … Q. Okay.

Now, one of the things that has been tossed around on the sidelines is that possibly these gaps where the pins and the steel sheet pile didn’t go down, that tidal water was going in through the Wharf, the face of the Wharf, into and undermining through the holes at the bottom of the SSP where the pins weren’t all the way down and the SSP wasn’t down to the bedrock, and that’s why the subsidence occurred. Can you comment on that? A. No. Q. That was never a part of your -- A. Yes, actually, that was. We were looking at that to see if there was a toe pin failure, if that’s what you’re referring to. Q. Yes. A.

But based on the way that the wall fell outward from the top, it led us to believe that it was a topple failure rather than a toe kick-out, so to speak. In the diagrams and pictures that we looked at, mostly the pictures, when you see the beginning of the failure, the early stages of it, the concrete kicked out at the top and bowed north, toward the north, generally speaking. [ 119 ] Michael Martell (engineer hired by Martin Marietta to investigate cause of the failure) testified: (court Exhibit 1, Tabs 6/7/8): Q.

And, in fact, your assessment of the tow pins and the SSP in the area of the failed SSP indicated that based on what you could determine that the tow pins and the SSP had been installed according to the design. A. As far as we could tell, yes. … Q. Now, if the failure occurred because the tow pins were inadequate or the SSP was not secured into the bedrock that would result potentially, I guess, from failure mode of the bottom of the SSP kicking out. Is that right? A. That’s correct, yes. Q.

And did you see any evidence, or have you heard of any evidence, to suggest that the mode of failure was the bottom of the SSP kicking out? A. I have not seen anything to that affect. Q. And have you heard of anything to that affect? A. No, I have not heard of anything to that affect. [ 120 ] Craig Hodder (Martin Marietta employee) testified: (court Exhibit 1, Tab 9): Q. All right.

And I guess one of the issues here was whether the wall was… Initially, was it tipping out so that it appeared that the foot of the wall where the sheet pile went into the mud, was that closer to shore than the top of the coping wall when it was going? A. Yes, it was. Q. Yeah. So that was – A. The wall was tipping out from the top.

… Q. So Mr. Proudfoot had asked you about any indication that the bottom of the Wharf had kicked out and you indicated that you did not see an indication. A. Not at that time. Q. Or at any time. A. Or any time after, because after that… By the next day the top had disappeared. [ 121 ] Greg Burke (Beaver designated manager) testified: (court Exhibit 1, Tab 10/11): Q. Now Mr. Proudfoot had been asking you previously about when the wall failed, whether it seemed to move out from the top or whether the whole face of the wharf moved out including the bottom.

And he showed you some photographs and you -- tried to get you to interpret the photographs and your evidence was you disagreed with him that the bottom of the wharf moved out as well, correct? A. Yeah. From those photographs, I didn’t see any evidence that the bottom of the wall had moved out. … Q. When you were on site after the collapse, did you address your mind to whether it appeared that the failure of the wall was from the top out as opposed to the bottom kicking out? Did you address your mind to that? A. Yeah, I don’t believe that the bottom or the toe of the steel sheet pile kicked out. Q. Right. A.

I believe it happened from the top. The tie rods let go, there was additional weight on the wall and I think, eventually, the interlocks failed and that gaps

section in the wall opened up. Q. Right, okay. And why did you conclude that? Based on what you saw and the people you spoke to? A. That seemed to be what the evidence was pointing to that we could physically see in the field. Again, I -- we made that sketch of the steel sheet pile. Q. yes. A. The sketch of the steel sheet pile which, to me, said that the toe did not kick out. We could see the wall leaning out into the Strait. It wasn’t vertical, if the whole wall had moved, you would think that the concrete cap beam would still be vertical and it wasn’t. It was actually leaning into the berth area. Q. Right.

Now you weren’t there but Mr. Whalen indicated that on his evidence that during the construction there was no indication that Bermingham’s work was problematic or that it in any way contributed to the collapse. Did he ever advise you of that? A. Yes. Q. And is it fair to say that that’s your view as of today? A. I saw nothing related to the toe pins that would lead me to believe they were contributed - they contributed to the failure of the wharf. … Q.

Now, if we look at the H-beam that goes vertically and we look above the right-hand side of that H-beam and we can see the concrete cap wall -- the concrete cap in the wall, to the west of that. Would you agree with me that that all appears to be leaning into the Strait? A. Yes. Q. And that’s indicative of the top of the wall leaning towards the Strait? A. That’s correct. Q. And did you understand that was a mechanism of failure of the portion of the wall that actually did fall into the Strait, that it effectively moved out -- the top moved out-- and fell into the Strait? A. Yes. MR. PROUDFOOT: How would he know?

THE WITNESS: Because we recovered steel sheet pile that was bent that way. ---BY MR. DUNPHY: Q. Okay. Do you want to tell me about that please?

MR. DUNPHY: Thanks, Mr. Proudfoot. MR. PROUDFOOT: Trying to find the truth. BY MR. DUNPHY: Q. Yes, can you tell about the SSP that you recovered and what was found? A. Yes, I don’t know if there are photos here that show it. There were some photos, I believe, Harvey, correct me if I’m wrong, that did show some of the steel sheet pile that we recovered during the demolition process. MR. MORRISON: I don’t remember seeing them. THE WITNESS: You don’t remember seeing them. Okay, maybe I’m dreaming. BY THE WITNESS: A. There were sheet pile that we extracted.

We’ll go back to the picture that you had pointed out, 2766/12 on the -- this is the western corner of the wharf. Q. Yes. A. And part of the north face was still in place after the failure. So we went in – Q. Part of the north face at the western corner was still in place? A. Correct. There was a short

section of it. So the concrete cap beam was broken off with a hydraulic hammer and then a vibratory hammer was put on those steel sheet pile and they were extracted and removed. And when those sheet pile were brought up, you could see they were no longer vertical. They had actually bent around the pivot point somewhere up from the base. So if this is the bottom of the sheet pile. Q. Yes. A. Up from the bottom, and again, it varied on the depth the sheet pile seemed to be installed into the overburden. But the top portion had bent about that pivot point.

So that tells me that the toe of the sheet pile wall did not move. … Q. Okay. And so these were pulled up and taken onshore, were they, these SSPs? A. Yes. Q. And what it showed was the bottom of the SSP was not bent at a lower

part indicating that it had kicked out over the toe pin nor was it a kind of a straight -- there was an actual pivot point— A. There was a bending point there in the steel sheet pile and it showed to me that the toe the steel sheet pile remained in place when the wall was falling and – Q. Bending over. A. Bending over, yes. Q. And you have any recollection, just order of magnitude, the type of distance we’re talking about between the pivot point and the bottom of the SSP? A. 12 to 15 feet and that’s very approximate. [ 122 ] John Whalen (Beaver general manager) testified: (court Exhibit 1, Tab 12/13): Q. Okay.

Was there any indication that the steel sheet pile may have been a contributive factor? A. I don’t believe so, no. Q. And what about the toe pins? A. No. … Q. Yeah. Although you and I discussed yesterday -- and I think you told me today there was no issue with the toe pins. They did their job, as far as you’re concerned. A. Yeah.

… Q. Okay. I think you may have answered this already. Again, I apologize. But did you see any evidence that the bottom of the SSP had kicked out at the time of the failure? A. No. Q. No. To your knowledge, the SSP state in place where it went into the floor – A. Um-hmm. Q. -- and that essentially – A. It kind of catapulted over. [ 123 ] Dennis Kaufman (Beaver superintendent) testified: (court Exhibit 1, Tabs 14/15): A. One of Bill’s first questions, “were the piles driven to bedrock?” Q. Okay. So he put -- did he put that to you? A. Yes. Q. And you told them they had? A. Yes… … Q. Okay.

Anything else you discussed with Bill, to your recollection? A. Bill wanted to know whether I thought the bottom kicked out. Q. And what did you think? A. My thoughts still are that, no, the bottom did not kick out. Q. The bottom didn’t kick out. Okay… … Q. Now, you indicated that when Bill Steiner arrived at the site, he wanted to know -- this is after the collapse -- he wanted to know from you whether you felt the bottom had kicked out or buckled out. A. Yes. They had a meeting in Martin Marietta’s office with Bill Steiner and various parties. Q. Right.

And it’s fair to say that -- I think your evidence was you told him you did not feel that to be the case, and you still do not feel that to be the case. Correct? A. That’s correct. Q. So, just so I’m clear, based on what you saw on site after the collapse, there was no evidence that the failure occurred because the bottom of the SSP kicked out. Correct? A. In my opinion, the bottom of the SSP did not kick out. Q. Right. And you base that on what you saw both with respect to before you started removing SSP and as a result of moving the SSP. A.

Yes. [ 124 ] Floyd Butts (Hatch designated manager) testified: (court Exhibit 1, Tab 16): Q. Okay. So did you ever speak to Grant (McCharles) about tow pins? You didn’t mention tow pins. Do you recall ever speaking to him about tow pins? A. Only in the context of how they were involved in the design. Q. Right. But at no point did he indicate any deficiencies in the tow pins that you can recall. A. Not to my recollection, no. Q. Or that he didn’t indicate to you in any way that the tow pins caused or contributed to the collapse. A. No.

[ 125 ] Grant McCharles (Hatch engineer) testified (court Exhibit 1, Tabs 17/18/19): Q. And is it fair to say, Mr. McCharles, that you have no evidence that the toe pins in any way caused or contributed to the collapse of the Wharf? A. No. … Q. So, we can see that to the right of that joint the top of the Wharf is leaning out into the strait. A. Yes. Q. Okay. And that’s the type of failure that you’re talking about that is consistent with a tie rod in the upper Waler letting go, that is the top of the Wharf falls out or bows out into the strait? A. Well, it almost looks like there’s -- more than one has – Q.

Let go by then? A. Yes. Q. Okay. But the mechanics of the failure is at the top lets go and it starts leaning over into the strait? A. Yes. Q. Okay. And – A. If the bottom let go, I guess there’d be another condition. Q. You did not see any evidence -- on the Saturday when you were there you did not see any evidence in anything you saw to indicate the bottom of the SSP wall had kicked out, did you? I’m not asking you whether you could or couldn’t, I’m just asking you to confirm that you didn’t. A. Yeah. I don’t have any evidence of that but I could not confirm that. Q.

And through all your review of the documents and through all the people that you spoke to or things that you read, you’ve not seen any evidence of the bottom of the SSP wall kicking out at the bottom, did you? A. I have no knowledge or evidence of that being the case. I do not know, no. … Q. Are you aware of any evidence whatsoever that any of the toe pins had failed? A. I have no evidence that any of the toe pins had failed. Q. And you’re not aware of any evidence that the toe pins caused or contributed to the failure in any way, correct? A.

I do not have any evidence of that and I can’t -- I cannot confirm that. [ 126 ] Mr. McCharles provided further evidence on this motion on behalf of the respondent, by way an affidavit sworn June 20, 2016 (court Exhibit 4). It would appear that since his discovery, Mr. McCharles has learned of the possible concerns relating to the installation of the toe pins, the positions of the toe pins, the “mushrooms”, the reporting concerns, the crane issue, and so on. In my view, Mr. McCharles’ new affidavit does not provide any material question of fact for trial.

Nothing in that document relates to causation, which is the lacking element here. [ 127 ] In providing possible material questions of fact, the respondent notes at para. 70 of his brief: 70. The material facts in issue that remain in dispute between the parties can be classified into the following main topics: 1. Origin of wharf collapse (i.e., gave out from the bottom or the top); 2. Proper installation of the toe pins; 3. Whether the work done by Bermingham was done according to contract specifications; 4. Reporting, recording and supervision of Bermingham’s work; and 5. Cause of the wharf collapse.

[ 128 ] I address each of these, starting with: 1. Origin of wharf collapse (i.e., gave out from the bottom or the top) 5. Cause of the wharf collapse [ 129 ] The respondent points out that two structural engineers, Mr. Martell and Mr. McCharles, are in disagreement as to the cause of the collapse (Mr. Martell pointing to the lower waler as the problem; Mr. McCharles pointing to the upper waler as the problem).

The respondent says this is because of the “complex nature of the wharf collapse”, paired with the witnesses’ inability to see what was below water. [ 130 ] The respondent fails to note, however, that that disagreement does not involve Bermingham, or its work. There is no question that in relation to this global litigation, there are material questions of fact that will require a trial. The origin/cause of the wharf collapse is one such central question. [ 131 ] Furthermore, as I have outlined earlier in this decision, I see no dispute on the evidence as to whether the wharf “gave out” from the bottom of the top.

Frankly, there is simply no evidence that the wharf “gave out” from the bottom. 2. Proper installation of the toe pins [ 132 ] I have addressed this already. This is not a material question of fact, in this particular claim, unless improper installation can be shown, and that such improper installation somehow caused or contributed to the collapse of the wharf. There is no evidence before me that such is the case. 3. Whether the work done by Bermingham was done according to contract specifications 4.

Reporting, recording and supervision of Bermingham’s work [ 133 ] As I have already discussed, neither of these are material question of fact in this negligence claim. They are not questions of fact “essential to the claim or defence”, nor questions of fact “that can or will affect the outcome of the matter” or anchor the cause of action or defence ( Quadrangle Holdings Ltd., supra). [ 134 ] In my view, the questions that have been raised by the respondent are either not material, or are material to the global litigation, but do not involve the applicant.

The evidence before me does not show any causal link between the applicant’s work and the failure; a necessary element of such a claim. Allowing this claim to proceed to trial would not be a good use of judicial resources. [ 135 ] I further find that there is no question of law involving these parties that requires determination (Rule 13.04 (1)(b)). [ 136 ] As a final consideration, I am permitted to consider adjourning the motion “for any just purpose, including to permit necessary… discovery” (Rule 13.04(6)(b)).

The respondent has pointed out that discovery of the designated manager for the applicant has not occurred and that, as such, this motion is premature. [ 137 ] Courts have recognized that where a litigation has reached a “very ripe” stage of proceeding, i.e., where discoveries were complete and the case ready for trial, it is quite appropriate for a court to determine that the evidence shows no triable issue, even in the case of a third-party claim: Ese Sports v. Continental Insurance Company

(1995) O.J. No. 2591 (Q.L.) ; Selig v. Cook’s Oil Company 2005 NSCA 36 . This litigation has been ongoing for many years. Discoveries and disclosure have been extensive and, frankly, exhaustive. [ 138 ] I would agree that, generally speaking, a party is entitled to discover an opposing corporate party’s designated manager as of right (Rule 18.04). I recognize that to grant

summary judgment in the absence of that discovery is perhaps unusual. However, given the context of the present

summary judgment motion, I am satisfied that it is not premature, and that it should not be adjourned for any further discoveries. [ 139 ] I am simply unable, in this specific instance, to conceive of any information that the applicant’s designated manager could provide, that would inform as to the missing elements here. Other than simply asserting his right and wish to discover this person, the respondent has not provided me with reason to believe that such a discovery would provide any significantly useful information. [ 140 ] In my view, such an adjournment would do nothing but delay the inevitable.

I decline to adjourn this motion for the purpose of permitting further discovery. [ 141 ] According to Rule 13.04, where I find no question of law or fact, I must grant

summary judgment. I grant

summary judgment to the applicant. The claim of the defendant Hatch against third-party Bermingham is dismissed. [ 142 ] If the parties cannot resolve costs, I would ask them to provide me with written submissions. Boudreau, J.