Anderson v Braun, 2017 SKCA 93

Court of Appeal for Saskatchewan Docket: CACV2691 Citation: Anderson v Braun , 2017 SKCA 93 Date: 2017-10-26 Between: Dale Anderson Appellant (Third Party) And Larry Braun, 627332 Saskatchewan Ltd., 627360 Saskatchewan Ltd., 627469 Saskatchewan Ltd., 627470 Saskatchewan Ltd., 627471 Saskatchewan Ltd. Respondents (Plaintiffs) And Jason Peszko and Bill Roe, operating under the name Roe & Company Respondents (Defendants) And Bill Thompson Respondent (Third Party) And Larry Machula Respondent (Third Party) Before: Richards C.J.S., Jackson and Ottenbreit JJ.A.

Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Jackson On Appeal From: 2015 SKQB 64 , Saskatoon Appeal Heard: February 22, 2017 Counsel: John Rozdilsky for Dale Anderson Curtis J. Onishenko for Larry Braun and numbered companies Robert G. Kennedy, Q.C., for Jason Peszko and Bill Roe Deryk Kendall for Bill Thompson No one appearing for Larry Machula Ottenbreit J.A. I.

Introduction [ 1 ] Dale Anderson appeals against a decision in the Court of Queen’s Bench dated February 26, 2015 ( 2015 SKQB 64 , [2015] 10 WWR 109). Larry Braun and five numbered companies controlled by Mr. Braun, all respondents in this appeal, had sued Jason Peszko and Bill Roe, who are solicitors. Mr. Braun alleged negligence by Mr. Peszko in relation to his representation on a sale by Mr. Braun and the companies of certain residential property hereinafter called McNab Park. Mr. Braun’s claim sought damages against Mr.

Peszko for inappropriately giving credit to the purchaser of McNab Park for the amount owing under a forgivable Residential Rehabilitation Assistance Program (RRAP) mortgage. [ 2 ] Mr. Peszko added Bill Thompson, Dale Anderson and Larry Machula as third parties claiming they owed a duty of care to Mr. Braun and the companies in the drafting and completion of the contract of sale for McNab Park, and claiming contribution for some or all of the damages claimed by Mr. Braun and the companies. Mr. Thompson is a real estate agent who represented Mr. Braun and his companies. Mr.

Anderson is a real estate agent who represented the purchaser of McNab Park. Mr. Machula is an entrepreneur who worked with Mr. Anderson. Mr. Thompson cross-claimed against Mr. Anderson and Mr. Machula for indemnification for any damages recovered by Mr. Peszko against him. [ 3 ] The trial judge found each of the parties involved in the litigation, including Mr. Braun, caused the loss and were at some fault with respect to the damages claimed. He allowed the third party claim and the cross-claim. He apportioned fault pursuant to The Contributory Negligence Act , RSS 1978, c C-31 [ CNA ].

It is this finding of causation, fault and apportionment of the responsibility therefore that is central to this appeal. [ 4 ] Mr. Thompson filed a factum supporting the appeal and arguments of Mr. Anderson that Mr. Peszko should be found 100% liable for the loss. However, there was no appeal, cross-appeal or application to vary the decision of the court below by Mr. Thompson. He argues that if Mr. Anderson is successful in his appeal, this Court has jurisdiction to grant him the same relief granted to Mr. Anderson notwithstanding that he has not appealed.

He submits that it would be unfair for this Court not to do so. [ 5 ] Mr. Braun had also appealed against the decision but abandoned the appeal prior to the hearing. Mr. Machula did not

participate in the appeal. [ 6 ] For the reasons hereinafter set forth, the appeal of Mr. Anderson is dismissed. Accordingly, I need not deal with Mr. Thompson’s submissions except insofar as they dealt with the content of the formal judgment taken out by Mr. Braun and the companies. I will address this matter at the conclusion of this decision. II. Facts and Background [ 7 ] Mr. Braun and his companies collectively owned McNab Park, which totalled about 50 acres of land near the Saskatoon airport. McNab Park consisted of single and multi-family residences, used primarily for low-rental housing.

In 2002, CMHC and Saskatchewan Housing Corporation loaned Mr. Braun and his companies the money to make repairs on the residences in McNab Park. The loan was secured by the RRAP mortgage. The mortgage was forgivable in yearly increments over 15 years, as long as a number of conditions continued to be met – primarily maintaining the property as rental units and limiting rent increases. The mortgage was also assumable by a purchaser, as long as the purchaser abided by the terms and conditions of the mortgage. [ 8 ] Toward the end of 2005, Mr. Braun decided to sell McNab Park. Mr.

Anderson, a Saskatoon realtor, was aware of this and began looking for a purchaser. He was able to connect Mr. Braun and his companies with Ray Newton who was representing a group of Alberta investors who were interested in acquiring the property.

Discussions ensued between the parties with a view to reaching an agreeable price and other terms for the sale of McNab Park. [ 9 ] As a result of those discussions, McNab Park was sold for $9,660,000 pursuant to a standard Saskatoon Real Estate Association Contract of Purchase and Sale form dated January 25, 2006 (contract), to a numbered company or nominee associated with Mr. Newton. The contract was eventually assigned to other parties. Attached to the contract were several schedules. Central to this appeal is clause 9 of

Schedule B of the contract, which reads as follows: 9. The Purchaser agrees to assume the existing RRAP mortgage. Because this mortgage is a nonrepayable grant the amount of this mortgage is not included in the Purchase Price under the Offer to Purchase. If the Purchaser develops the property before the expiration of the grant period it is his sole responsibility to repay the mortgage. The RRAP mortgage applies only to the renovated 60 townhouse rental units. The mortgage must not only be assumed but the purchaser must also comply with the operating agreement.

For this agreement the vendor will set aside in trust an equal amount to mortgage amount on closing that will be releasable to vendor as the Rapp mortgage is reduced. This amount will be with held from sale proceeds. [ 10 ] During the negotiations leading to the conclusion of the contract, Mr. Braun and his companies retained Mr. Thompson, a realtor, to represent their interests. As could be expected, a number of offers and counter-offers flowed back and forth between the parties during the negotiations leading up to the sale. It was Mr.

Thompson who inserted an initial version of clause 9 into the offers and counter-offers. The purpose of that initial version was to ensure that the RRAP mortgage was assumed by the purchaser but not included in the purchase price. Mr. Thompson’s original version read as follows: The Purchaser agrees to assume the existing RRAP mortgage. Because this mortgage is a nonrepayable grant the amount of this mortgage is not included in the Purchase Price under the Offer to Purchase. If the Purchaser develops the property before the expiration of the grant period it is his sole responsibility to repay the mortgage.

The RRAP mortgage applies only to the renovated 60 townhouse rental units. The mortgage must not only be assumed but the purchaser must also comply with the operating agreement. [ 11 ] During negotiations, the offers that Mr. Thompson sent to Mr. Anderson for review initially all contained the original version of clause 9. Near the end of the negotiations, Mr. Anderson also sent the offers to Mr. Machula for his review. It was Mr.

Machula who prepared and drafted the contents of the final version of clause 9 in the offers and inserted the following addendum: For this agreement the vendor will set aside in trust an equal amount to mortgage amount on closing that will be releasable to vendor as the Rapp mortgage is reduced. This amount will be with held from sale proceeds. Thereafter, the clause became clause 9. [ 12 ] Mr. Anderson was aware that a new

Schedule B had been drafted and inserted into the offer by Mr. Machula but was not aware of what changes he had made. The final offer was prepared by Mr. Anderson and contained clause 9 with the addendum. He returned it to Mr. Thompson. The addendum had been inserted into the original version of clause 9 unbeknownst to Mr. Thompson. Mr. Thompson did not read it before Mr. Braun signed it. Mr. Braun did not read the offer before he signed it either. This final offer became the contract. [ 13 ] In February 2006, Mr. Peszko received the contract with instructions to represent Mr.

Braun and the companies in closing the sale transaction. The initial closing date of the transaction was to be in September 2006, but at the request of the purchaser that date was delayed a number of times and the closing took place in June 2007. [ 14 ] Mr. Peszko prepared the necessary documents to close the transaction. On June 13, 2007, he spoke with the purchaser’s lawyer who indicated that the RRAP mortgage would likely be paid out. On June 15, Mr.

Peszko forwarded to the purchaser’s lawyer the transfer authorizations for McNab Park and the statement of adjustments showing the amount owing by the purchaser to Mr. Braun and the companies, and requesting payment of same. The statement of adjustments credited the balance of the RRAP mortgage in the amount of $514,800 to the purchaser against the purchase price by way of assumption of the mortgage. The balance owing after this and other credits was stated to be $8,844,735.30. In due course, on June 22, 2007, the purchaser’s lawyer forwarded that sum to Mr.

Peszko and the sale closed. [ 15 ] At no time during his dealings with Mr. Braun and his companies did Mr. Peszko review the statement of adjustments with Mr. Braun. After the sale closed, Mr. Peszko met Mr. Braun for the purpose of providing him the proceeds of the sale. At that time,

Mr. Braun raised with Mr. Peszko that he was entitled to receive an additional $514,800 and that the obligation for the RRAP mortgage was to be borne solely by the purchaser without any deduction for it. It was this conversation which precipitated a letter by Mr. Peszko to the purchaser’s lawyer dated July 23, 2007, noting that pursuant to clause 9 of

Schedule B, the amount of the RRAP mortgage was not to be included in the calculations for the purchase price and requested the sum of $514,800 to be paid to Mr. Braun to conclude the transaction. [ 16 ] The purchaser’s lawyer declined to do so responding that payment of the sum was not his client’s responsibility, that the statement of adjustments had not required it to be paid and that the purchaser had paid the amount requested by the vendor. III.

Decision of the Trial judge [ 17 ] The trial proceeded with all of the parties involved in the formation and conclusion of the sale transaction and contract testifying. In addition, David G. Gerecke, on behalf of Mr. Braun, and Randy M. Sandbeck, Q.C., on behalf of Mr. Peszko and Roe & Company, respectively provided expert testimony regarding a solicitor’s duty of care, the standard of care and the possible reasonable

interpretations of clause 9 in the contract. [ 18 ] The trial judge carefully reviewed the evidence of each of the non-expert witnesses and made the following factual findings with respect to the contract and their involvement in its formation and signing: (

a) The purchase price for McNab Park was $9,660,000 net and exclusive of the $514,800 RRAP mortgage; (

b) The RRAP mortgage was to be the purchaser’s responsibility to pay out; (

c) Mr. Thompson was Mr. Braun’s agent and was retained to protect his interest; (

d) Mr. Thomson was the primary draftsman of the contract, there being no legal counsel involved, but the contract was collectively drawn by Mr. Thompson, Mr. Anderson and Mr. Machula; (

e) None of Mr. Braun, Mr. Thompson or Mr. Anderson actually reviewed the final offer that became the contract; (

f) Mr. Braun signed the contract without reading it; (

g) Mr. Machula inserted the addendum to clause 9; and (

h) Mr. Braun, Mr. Thompson, Mr. Anderson and Mr. Machula collectively created an ambiguous contract that ultimately was given to Mr. Peszko when he was asked to complete the transaction. [ 19 ] Although the reports of the experts and their testimony differed on the nature and extent of the duty of care owed by Mr. Peszko as a solicitor and the standard of care to which he was subject, those differences are not germane to this appeal. Both experts stated that it was the duty of Mr. Peszko to review the statement of adjustments with Mr. Braun prior to forwarding it to the purchaser’s lawyer. Both Mr.

Gerecke and Mr. Sandbeck opined that clause 9 was problematic and ambiguous. Both Mr. Gerecke and Mr. Sandbeck, with slight variations, expressed the view that the clause should have been discussed with the client as to what the client’s expectations were and what financial implications might arise from the clause. [ 20 ] Mr. Sandbeck opined that it was not an actionable breach of duty for Mr. Peszko not to have reviewed the specific terms of the contract with Mr.

Braun prior to closing as he was not being relied on to negotiate or draft the terms of the contract. [ 21 ] The trial judge made the following determinations with respect to Mr. Peszko: (

a) Mr. Peszko did not review the contract with Mr. Braun but it was not part of his retainer to do so; (

b) Mr. Peszko owed a duty of care to Mr. Braun and the companies to act as a reasonably prudent solicitor in handling the sale; (

c) Mr. Peszko breached that duty of care by not reviewing the statement of adjustments with Mr. Braun prior to sending it to the purchaser’s lawyer; and (

d) If Mr. Peszko would have reviewed the statement of adjustments with Mr. Braun prior to signing the transfers, then Mr. Braun would have identified a clear shortfall of $514,800. [ 22 ] The trial judge concluded that Mr. Anderson and Mr. Machula owed a duty to Mr. Thompson and Mr. Braun as a result of their relationship: [227] Anderson as a realtor, and Machula ostensibly as his consultant, owed a duty to Thompson in particular and Braun as well to advise Thompson, and therefore Braun, of any changes that had been made to the agreement and the duty not to mislead Thompson or Braun.

In that regard, they breached such duties even if inadvertently. [ 23 ] The trial judge observed Mr. Anderson admitted both a duty of care to Mr. Thompson and accepted that transparency, honesty and integrity was the standard of care: [103] On cross-examination, Anderson was asked by counsel for Thompson whether as a realtor, he was obligated to be honest not only with his fellow realtors but with parties to a real estate transaction. To this question, Anderson responded “yes”. He also agreed that you are, as a realtor, to show transparency, honesty and integrity with both purchaser and vendor.

He again agreed that it was always his understanding that Braun was not going to be responsible for the RRAP mortgage, and that he was to net $9,660,000. Anderson also

acknowledged that the disclosure document was not provided to Thompson until approximately February 6, 2006. [ 24 ] The trial judge also connected Mr. Anderson’s duty to Mr. Thompson and to his failure to meet the standard of care: [184] Thompson candidly acknowledges that he did not review the final agreement prior to the signing of it, and further acknowledges that he was retained specifically to represent and advise Braun, Valerie Braun and the corporate vendor.

He received compensation which can fairly be described as significant for his efforts, and yet chose not to read the agreement at the critical time of the execution of that agreement. [185] Anderson must accept some responsibility for this as well in that he did not read the agreement, and while he had no strict obligation to protect the interests of Braun, I am satisfied that he had an obligation not to undertake anything in the process which was not transparent and not contemplated in the agreement. He simply did not read the agreement.

He too received a level of compensation for his overall efforts which can fairly be described as significant. Indeed, an observer might be tempted to muse that both Thompson and Anderson as well as Machula each received a level of compensation far in excess of that paid to Peszko. [ 25 ] On the issue of causation, the trial judge identified the test for causation of the loss as the “but for” test and applied it: [187] I agree that Peszko was negligent in not reviewing the Statement of Adjustments with the vendor.

However, in applying the loosely referenced “but for” test, I think it is a fair observation to conclude that but for Braun’s failure to review the agreement in detail, as he himself urged upon Thompson in his fax of April 14, 2006, the problem might well not have occurred. Similarly, but for Thompson’s failure to review the final agreement at the time of its execution, the problem may well not have arisen.

In a similar vein, but for the failure of Anderson to review the agreement and discuss it with Thompson or Machula, the problem may not have arisen, and finally, but for Machula adding the additional wording to the clause without bringing it to the attention of any of the other players in the transaction, which I find to be the case, the problem would not likely have occurred. [ 26 ] After considering the actions of Mr. Peszko and Messrs. Thompson, Anderson and Machula, as well as Mr. Braun, the trial judge determined that all the parties caused the loss (at paras 179, 186, 187 and 191).

He found that because the contract was drawn by Messrs. Thompson, Anderson and Machula, each had a responsibility to undertake that process in a forthright and transparent manner. He found they were also under an obligation to review the contract before it was signed. He found that Mr. Peszko’s oversight with respect to the failure to review the statement of adjustments with Mr. Braun ultimately contributed to the problem but the cause of that problem was not his alone. He determined that Mr.

Braun failed to read the contract before signing it. [ 27 ] With respect to the attribution of fault for the loss, the trial judge made the following determinations: (

a) Mr. Thompson owed a duty of care to Mr. Braun not to do anything or omit anything which would harm him and he breached that duty of care by not engaging legal counsel at the outset with regard to the drafting of the contract and by not reviewing the contract prior to its signing; (

b) With respect to Mr. Braun, the trial judge concluded he was contributorily negligent by not taking reasonable care to prevent harm to himself and his companies. He chose not to involve legal counsel either in negotiating the contract or in reducing the terms of the sale to writing. Additionally, he neither read the contract before signing it nor asked Mr. Peszko to review the contract; and (

c) With respect to Mr. Anderson and Mr. Machula, the trial judge found they both owed a duty to Mr. Thompson and Mr. Braun to advise both of any changes to the contract and a duty not to mislead either. He found that they breached that duty, even if inadvertently. [ 28 ] The trial judge then applied the CNA and, referring to Heller v Martens , 2002 ABCA 122 , 213 DLR (4th) 124 [ Heller ], apportioned fault. Using the comparative fault approach, he concluded the following with respect to the loss: (

a) Mr. Peszko and Roe & Company were 80% at fault; (

b) Mr. Braun was 20% contributorily at fault; (

c) Mr. Anderson and Mr. Machula were liable for 20% of the damages ascribed to Mr. Peszko and Roe & Company, jointly and severally, pursuant to the third party claim; (

d) Mr. Thompson was liable for 25% of the damages ascribed to Mr. Peszko and Roe & Company pursuant to the third party claim; and (

e) Mr. Anderson and Mr. Machula were jointly and severally liable for 10% of Mr. Thompson’s liability pursuant to his cross- claim. [ 29 ] The trial judge proceeded to calculate the liability for damages: [241] The

summary for liability for damages then is: • The defendants Peszko and Roe & Company $ 226,512 • The plaintiffs $ 102,960 • Third party Thompson $ 92,664 • Third parties Anderson and Machula (jointly and severally – s. 3.1 of the Act ) $ 92,664 $ 514,800 [ 30 ] The trial judge also awarded pre-judgment interest from August 1, 2007, to the date of payment in proportion to each of the

parties’ responsibility for damages. IV. POINTS IN ISSUE [31] Mr. Anderson has set forth 18 grounds of appeal in his factum. The majority of them are unfortunately repetitive. It appearsno effort was made to consolidate the grounds into common issues. It falls to this Court to do so. [32] The broad issues raised by Mr. Anderson’s grounds of appeal can be fairly stated as follows: (

a) Did the trial judge err in determining the causation for the loss incurred by Mr. Braun and his companies; (

b) Did the trial judge err in his determinations with respect to the third party claim and the cross-claim; and (

c) Did the trial judge err in applying the CNA and apportioning fault. [33] In isolating these issues, it is important to note that the appellants do not claim the trial judge misstated the law pertaining toduty of care, standard of care or causation. V. Analysis A. Did the trial judge err in determining the causation for the loss incurredby Mr. Braun and his companies? [34] Mr. Anderson argues in various ways in grounds (a), (b), (c), (d), (e), (g), (i), (

k) and (

l) that the trial judge erred by notfinding that the sole cause of the loss was Mr. Peszko’s negligence. He argues Mr. Peszko could have prevented the loss entirely had hereviewed the statement of adjustments with Mr. Braun. On this basis, he argues the wording of the clause did not really contribute to thedamages. He submits the trial judge ignored this evidence and did not give it proper weight. [35] Mr. Anderson’s ground (

d) challenges the trial judge’s finding that, without the addendum, clause 9 and the contract wouldnot have been open to different

interpretations. He argues that clause 9 admitted of only one

interpretation and that such

interpretationmandated no credit to the purchaser for the RRAP mortgage. On this basis, he argues alternatively that Mr. Peszko, by misinterpretingthe clause, was the sole cause of the loss. [36] I turn first to the standard of review on this issue. Mr. Anderson has acknowledged that the appropriate standard of reviewwith respect to the trial judge’s findings of causation and the ambiguity of clause 9 in the context of the contract is palpable andoverriding error. [37] I turn next to the governing law with respect to the presumptive rule for causation.

This was set forth in Clements v Clements,2012 SCC 32, [2012] 2 SCR 181 [Clements]: [8] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” thedefendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’snegligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’snegligence. This is a factual inquiry.

If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence,her action against the defendant fails. [9] The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of theprecise contribution the defendant’s negligence made to the injury. See Wilsher v. Essex Area Health Authority, [1988] A.C. 1074 (H.L.),at p. 1090, per Lord Bridge; Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311. [10] A common sense inference of “but for” causation from proof of negligence usually flows without difficulty.

Evidence connectingthe breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligenceprobably caused the loss. See Snell and Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458. See also the discussion on thisissue by the Australian courts: Betts v. Whittingslowe (1945), 71 C.L.R. 637 (H.C.), at p. 649; Bennett v. Minister of Community Welfare(1992), 176 C.L.R. 408 (H.C.), at pp. 415–16; Flounders v.

Millar, [2007] NSWCA 238, 49 M.V.R. 53; Roads and Traffic Authority v.Royal, [2008] HCA 19, 245 A.L.R. 653, at paras. 137–44. … [12] In some cases, an injury – the loss for which the plaintiff claims compensation – may flow from a number of different negligentacts committed by different actors, each of which is a necessary or “but for” cause of the injury. In such cases, the defendants are said tobe jointly and severally liable.

The judge or jury then apportions liability according to the degree of fault of each defendant pursuant tocontributory negligence legislation. [13] To recap, the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that thedefendant caused the plaintiff’s injury on the “but for” test. This is a factual determination. … (Italic emphasis in original; underline emphasis added) [38] On the basis of paragraph 12 of Clements, the traditional “but for” test presumptively applies to the case of multiple actors

creating a loss. The practical application of the “but for” test allows a trial judge, if the evidence warrants it, to determine that there areseveral concurrent causes, i.e., multiple causes. This is so, even in cases where the actions of the various tortfeasors appear to betemporally distinct such as submitted by Mr. Anderson in this case.

It is open to a trial judge applying the “but for” test to conclude onall the evidence that “but for” the negligent actions of each of the multiple actors, the loss would not have occurred notwithstanding thenegligent actions of one or more being different in time than the negligent actions of the others: see Athey v Leonati, (SCC), [1996] 3 SCR 458, where two car accidents, successive in time, were found to be causative. [39] The trial judge concluded that there were multiple causes for the loss.

He observed the following: [178] As I have noted, all of the other litigants espouse the proposition that Peszko is solely responsible or blameworthy for the losswhich occurred to the plaintiffs and that he alone, or he in conjunction with Roe & Company must bear the sole financial burden ofcompensating the plaintiffs for that loss. [179] With respect, I am unable to agree with that proposition as contended for, particularly by the plaintiffs.

I will reference the actionsof the parties again in my assessment of the appropriate allocation of damages responsibility to the parties in due course, however insummary, I would simply observe that with the exception of Valerie Braun and Newton, all of the individuals involved in the processcontributed to the problem and the ultimate issue of the loss to the plaintiffs. … [186] Ultimately, Machula accepts the responsibility for inserting the additional closing words into Clause 9, thereupon rendering itambiguous and open to disagreement as to its

interpretation. As noted, the wording inserted was: For this agreement the vendor will set aside in trust an equal amount to mortgage amount on closing that will be releasable to vendor asthe Rapp mortgage is reduced. This amount will be with held from sale proceeds. As both Gerecke and Sandbeck observed, this wording appears to be internally inconsistent and is obviously ambiguous. Without thiswording, I am satisfied that the agreement would have not been open to differing

interpretations and the matter might not ultimately haveproceeded in the fashion which it did - to litigation. To observe again the obvious, the actions of Braun, Thompson, Anderson andMachula were directed to the drafting and execution of the agreement, all long before Peszko became involved.

To suggest that “but for”Peszko’s negligence in not reviewing the Statement of Adjustments with Braun there would have been no problem, is to inappropriatelyignore how the vehicle giving rise to the dispute had its genesis. [187] I agree that Peszko was negligent in not reviewing the Statement of Adjustments with the vendor. However, in applying theloosely referenced “but for” test, I think it is a fair observation to conclude that but for Braun’s failure to review the agreement in detail,as he himself urged upon Thompson in his fax of April 14, 2006, the problem might well not have occurred.

Similarly, but forThompson’s failure to review the final agreement at the time of its execution, the problem may well not have arisen.

In a similar vein,but for the failure of Anderson to review the agreement and discuss it with Thompson or Machula, the problem may not have arisen, andfinally, but for Machula adding the additional wording to the clause without bringing it to the attention of any of the other players in thetransaction, which I find to be the case, the problem would not likely have occurred. ... [191] For the foregoing reasons, I am satisfied that all of Braun, Thompson, Anderson, Machula and Peszko bear some moral and legalresponsibility for the ultimate problem. [40] The trial judge carefully considered the evidence with regard to the part each of the parties played in causing the loss.Although the trial judge concluded that Mr.

Peszko’s act relative to the statement of adjustments was a significant negligent act andcause of the loss, this did not absolve the other parties from their contribution to the cause of the loss. [41] Accordingly, it was open to the trial judge to find that Mr. Thompson, by not reviewing the final contract prior to it beingsigned and thereby not looking out for the interests of Mr. Braun, caused the loss. Likewise, Mr.

Anderson, by not reading the contractand by breaching, in the words of the trial judge, an obligation not to undertake anything in the process that was not transparent and notcontemplated in the contract, caused the loss. It was also open to the trial judge to find that Mr. Machula, who inserted the addendum toclause 9, caused the loss. [42] The trial judge appropriately observed that the actions of Mr. Braun, Mr. Thompson, Mr. Anderson and Mr. Machula weredirected to the drafting and the execution of the contract before Mr. Peszko became involved. By doing so, he acknowledgedMr.

Peszko’s negligence was a separate negligent act that had nothing to do with the drafting of clause 9 and the insertion of theaddendum or any negligence of Messrs. Thompson, Anderson, Machula and Braun. He did not ignore this evidence as submitted byMr. Anderson. [43] However, while acknowledging Mr. Peszko’s discrete act of negligence, it was open to the trial judge, applying the “but for”test, to find that Mr. Peszko not reviewing the statement of adjustments was not the sole cause of the loss and that other causes of the losswere the actions of Mr. Braun, Mr. Thompson, Mr. Anderson and Mr.

Machula surrounding the genesis of the offer. That was a findingof fact, which was open to him to make on all the evidence. [44] I turn next to Mr. Anderson’s alternative argument that clause 9 was not ambiguous and that Mr. Peszko failed to properlyinterpret it thereby solely causing the loss. [45] The governing law with respect to the

interpretation of contracts was recently reiterated in Maurice Law, Barristers &Solicitors v Sakimay First Nation, 2017 SKCA 36, [2017] 10 WWR 139: [36] The Supreme Court of Canada in Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633 [Sattva],

concluded the

interpretation of a contract is a question of mixed fact and law. Accordingly, the standard of review to be employed by thisCourt to the trial judge’s

interpretation of the TLE Agreement is one of palpable and overriding error unless an extricable question of lawcan be identified. [37] As stated by Rothstein J., writing for the Court in Sattva, the overriding concern in interpreting a contract is “the intent of theparties and the scope of their understanding.” Accordingly, “a decision-maker must read the contract as a whole, giving the words usedtheir ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation ofthe contract” (Sattva at para 47). [46] In IFP Technologies (Canada) Inc. v EnCana Midstream and Marketing, 2017 ABCA 157, 53 Alta LR (6th) 96, the Courtstated: [59] Providing that the trial judge has not erred in law in the approach to the factual matrix, whether a contract is ambiguous isreviewed for palpable and overriding error: Bighorn (Municipal District No. 8) v Bow Valley Waste Management Commission, 2015ABCA 127 at para 9, 599 AR 395 [Bighorn]. [47] The trial judge’s finding that clause 9 was ambiguous is reviewable on the palpable and overriding error standard of review,unless there is an extricable question of law identified, which is not the case here. [48] The trial judge’s finding of ambiguity was based on a reading of the clause in the context of the contract as a whole, as well asthe opinions of each of the two expert witnesses that it could be seen as internally inconsistent and ambiguous.

There was ample evidencethat the clause was ambiguous and that, without the addendum, the clause would not have been open to differing

interpretations (atpara 186). [49] The trial judge’s finding of ambiguity is unassailable based on the standard of review in Sattva Capital Corp. v Creston MolyCorp., 2014 SCC 53, [2014] 2 SCR 633, i.e., palpable and overriding error. It was therefore open to the trial judge to find that the partieswho created this ambiguity, along with Mr. Peszko’s failure to review the statement of adjustments with Mr.

Braun, all caused the loss. [50] Looking at the trial judge’s analysis of the evidence on the causation issue as a whole, I cannot say that he committed apalpable and overriding error in finding that based on the “but for” test all parties caused the loss. B. Did the trial judge err in his determinations with respect to the third partyclaim and the cross-claim? [51] This issue deals with grounds (

f) and (

h) of Mr. Anderson’s factum. Mr. Anderson argues that the trial judge failed to find adiscrete duty owed by him to Mr. Peszko under the third party claim and therefore erred in finding him liable. [52] Mr. Peszko’s third party claim reads as follows: 17.

Peszko says that under the circumstances herein, each of Thompson, Anderson, and Machula owed a duty of care to the Plaintiffsto properly ensure that the form of contract was in accordance with the underlying agreement which had been reached between thePlaintiffs and the Purchasers and in breach of the duty Thompson, Anderson, and Machula caused the formal agreement to be drafted insuch a way that the purchase funds due on closing would be deficient in the amount of $514,800, all in circumstances where the formalcontract did not protect the Plaintiffs with respect to the due and proper payment of these funds.

Peszko says further that Anderson andMachula, as members of the purchasing group, intended to arrange the closing in such a fashion that the Purchase would not receive thesum of $514,800. 18.

Peszko says that the Plaintiffs were in a fiduciary relationship with Thompson and Anderson in that the Plaintiffs werevulnerable to the actions of Thompson and Anderson in respect to the setting of the formal contract terms and the Plaintiffs’ loss anddamage as is outlined in the Statement of Claim was caused by or contributed to by the breach, by Thompson and Anderson, of theirfiduciary duties to the Plaintiffs including inter alia: a. Caused the wording outlined in paragraph 14 herein to be inserted into the formal contract document; b.

Counseling and permitting the Plaintiffs to execute the formal contract documentation when they knew or ought to have knownthat the Agreement did not represent the underlying agreement which had been reached between the Plaintiffs and the Purchasers. [53] The claim of Mr. Peszko as framed was not based on any duty owed by Messrs. Thompson, Anderson and Machula to him butrather on a duty they owed to Mr. Braun and his companies, which they negligently performed in relation to the drafting of the clause.Mr.

Peszko’s claim over was therefore based on the allegation that the three were wholly or equally causative of Mr. Braun’s loss. [54] The nature of the third party process was described in McNaughton v Baker, (BC CA), [1988] 4 WWR 742(BCCA): [13] Third party proceedings are a form of pleading by which a defendant asserts a claim against someone other than the plaintiff inthe event the defendant is found liable to the plaintiff. Originally, the claim was confined to contribution or indemnity: see AustralianNewsprint Mills Ltd. v. Can.

Union Line Ltd. (1952), (BC SC), 6 W.W.R. 321 (N.S.), 7 W.W.R. (N.S.) 94 (B.C.S.C.).… [14] Third party pleadings function as a special type of statement of claim. Indeed, the claim they embody could be brought byseparate action. But to avoid a multiplicity of proceedings, the rules permit the claim to be made in the action which has beencommenced against the defendant. The object of permitting third party proceedings to be tried with the main action is to provide a singleprocedure for the resolution of related questions, issues or remedies, in order to avoid multiple actions and inconsistent findings, to

provide a mechanism for the third party to defend the plaintiff’s claim, and to ensure the third party claim is decided before a defendantis called upon to pay the full amount of any judgment. The avoidance of a multiplicity of proceedings is fundamental to our rules of civilprocedure. This has been the case since the reforms effected by the Judicature Acts in the nineteenth century. As Cotton L.J. stated inSearle v. Choat (1884), 25 Ch.

D. 727: “the whole tenor of the Judicature Acts is to require all proceedings as far as possible to be takenin one action”. [55] Although third party proceedings are often based on a discrete cause of action between the defendant and third party, such anindependent cause of action is not necessary to advance a third party claim in cases of negligence. [56] In B.(D.) v C.(M.), 2001 SKCA 9, [2001] 5 WWR 617, this Court said: [21] The second point that counsel for the [B.]s makes is that there must be a question of tortious liability between a defendant and aproposed third party.

This proposition is derived from Allan v. Bushnell T.V. Company Broadcast News Ltd. (supra) where Laskin J.A.speaking for the Ontario Court of Appeal wrote (at p. 723): What, in my view, is central to resort to third party proceedings is that the facts upon which the plaintiff relies against the defendantshould issue out of the relations between the defendant and the third party. I prefer this mode of expression to statements in the cases thatthere must be a common question or common questions between the plaintiff and the defendant and between the defendant and the thirdparty.

Since the “relief over” of which Rule 167 speaks means relief over in respect of the plaintiff’s claim (see Dipasquale et al. v.Muscatello, [1953] O.W.N. 1001 at p. 1004), there must be a connection of fact or subject-matter between the cause of action uponwhich the plaintiff sued and the claim of the defendant for redress against the third party; and, such claim would ordinarily arise out ofrelations between the defendant and the third party anterior to those between the plaintiff and the defendant which precipitated the mainaction.

While the Court stated that “the facts upon which the plaintiff relies against the defendant should issue out of the relations between thedefendant and the third party,” in our opinion, this does not mean that for a third party notice to issue the defendant must be able to suethe third party independent of the suit brought by the plaintiff. As Macfarlane J. stated in Godber v.

Mason (1953), (BC SC), 8 W.W.R. (N.S.) 410 at 411 “the court must be satisfied there is a question proper to be tried, and where there is a clearquestion between the parties that can be finally determined in the action, directions then can be given that the question of liability bedetermined in the action.” The Board does not seek contribution from the [B.]s on the basis that they acted in a common enterprise, butthat they share a concurrent liability based on their respective roles as parents and teacher. (Emphasis added) [57] Moreover, although historically third party proceedings were not applicable to claims by one joint tortfeasor against another(Mahoney v Canadian Northern Railway, (SK CA), [1924] 3 DLR 915 (Sask CA)), the CNA has changed the commonlaw rule so that a defendant tortfeasor is allowed to recover contribution from a third party joint tortfeasor (Campbell v Bartlett (1979), (SK CA), 107 DLR (3d) 591 (Sask CA)), but only in cases of negligence. [58] The third party claim in this case alleges a shared concurrent liability to Mr.

Braun and his companies based on the roles ofMessrs. Thompson, Anderson and Machula in drafting the offer to purchase. Given my earlier analysis regarding causation, the thirdparty claim against Mr. Anderson is sustainable without the trial judge having specifically found a duty owing by Mr. Anderson toMr. Peszko. Mr. Anderson was found to be one of the parties who negligently caused the loss. The trial judge did not err in giving effectto the third party claim in this respect. [59] Mr. Anderson argues with respect to the cross-claim of Mr. Thompson that the trial judge erred in finding that he andMr.

Machula owed a duty to Mr. Thompson and Mr. Braun to advise Mr. Thompson of any changes to the contract. [60] Mr. Thompson had cross-claimed on the following bases: 12. The Third Parties Anderson and Machula owed a duty to the Third Party Thompson to advise him of any changes that had beenmade to the agreement and a duty not to mislead him in relation to any such changes, which duties they breached. 13. The Third Parties Anderson and Machula having made such changes altered the basis of the agreement. 14.

The Third Party Thompson, therefore, claims as against the Third Parties Anderson and Machula, the following: (

a) In the event that the Defendant Peszko is successful in any portion of his claim against the Third Party Thompson, which is notadmitted but denied, the Third Party Thompson claims indemnification for any such damage award; (

b) Costs against the Third Parties Anderson and Machula; (

c) Such further and other relief as this Honourable Court may allow. [61] The existence and nature of a duty of care is a question of law. Whether that duty has been breached is a question of fact(Wilson v Clarica Life Insurance Co., 2002 BCCA 502, [2002] 11 WWR 17). [62] The governing law with respect to the existence of a duty of care and the determination of a standard of care was set forth inJohn v Flynn (2001), (ON CA), 201 DLR (4th) 500 (Ont CA): [30] As noted in Stewart v.

Pettie, (SCC), [1995] 1 S.C.R. 131, 121 D.L.R. (4th) 222 at p. 142 S.C.R., p. 229D.L.R., the modern approach to determining the existence of a duty of care is that established by the English House of Lords in Anns v.Merton London Borough Council, [1978] A.C. 728, 121 Sol. Jo. 377 and adopted by the Supreme Court of Canada in Kamloops (City) v.Nielsen, (SCC), [1984] 2 S.C.R. 2, 10 D.L.R. (4th) 641:

(1) is there a significantly close relationship between the parties … so that, in the reasonable contemplation of the authority, carelessnesson its part might cause damage to that person? If so, (2) are there any considerations which ought to negative or limit (

a) the scope of the duty and (

b) the class of persons to whom it is owedor (

c) the damages to which a breach of it may give rise? [31] The basis for this test is the historic “neighbor principle”, which holds that actors owe a duty of care to those whom they oughtreasonably have in their contemplation as being at risk when they act. According to the Supreme Court in Stewart v. Pettie, supra, inassessing negligence, the existence of a duty of care must not be confused with the standard of care required of an actor, nor with theissue of causal connection: This [appeal] raises the question of whether the establishment owed any duty of care to that third party.

If a duty of care is found to exist,then it is necessary to consider what standard of care was necessary and whether that standard was met. [p. 141 S.C.R.] Another consideration is whether there was a causal connection between the defendant’s allegedly negligent conduct and the damagesuffered by the plaintiff. [p. 141 S.C.R., p. 228 D.L.R.] … The question of whether a duty of care exists is a question of the relationship between the parties, not a question of conduct.

The questionof what conduct is required to satisfy the duty is a question of the appropriate standard of care. [p. 144 S.C.R., p. 231 D.L.R.] [63] As observed by the Court in Rausch v Pickering (City), 2013 ONCA 740, 369 DLR (4th) 691: [39] The existence of a duty of care simply means that the defendant is in a relationship of sufficient proximity with the plaintiff thathe or she ought to have the plaintiff in mind as a person foreseeably harmed by his or her wrongful actions. It is not a duty to do anythingspecific; it is a duty to take reasonable care to avoid causing foreseeable harm: Ryan v.

Victoria (City), (SCC), [1999] 1S.C.R. 201, at paras. 25–27. [64] There was sufficient proximity between Mr. Anderson and Mr. Thompson on all the evidence. That much is clear from thefacts on which the trial judge found Mr. Anderson and Mr. Machula owed a duty of care to Mr. Thompson and Mr. Braun as a result oftheir relationship. The trial judge made no error in finding the cross-claim against Mr. Anderson had been made out. C. Did the trial judge err in applying the CNA and apportioning fault? [65] This issue deals with grounds (j), (m), (n), (o), (p), (

q) and (

r) in Mr. Anderson’s factum. While the foregoing grounds purportto address issues of apportionment, most conflate causation with apportionment of fault and are in substance reiterations ofMr. Anderson’s argument that he was not a cause of the loss. [66] Mr. Anderson submits that the trial judge’s apportionment of fault is an issue of law and subject to a correctness standard ofreview.

Section 4 of the CNA, however, clearly states it is a question of fact (Mayer v Canadian National Railway Co. (1999), (SK CA), 180 Sask R 293 (CA)). Apportionment must therefore be assessed on the palpable and overriding error standardof review. [67] As an initial observation, the trial judge applied the principles of comparative fault as set forth in Heller. Mr.

Anderson doesnot dispute that the application of these principles is appropriate for determining fault for the purposes of apportionment if the CNAapplies. [68] In Heller, the Alberta Court of Appeal offered guidance on what factors were germane in determining comparativeblameworthiness: [34] Apportionment of fault between a contributorily negligent plaintiff and a negligent defendant under the CNA requires anassessment of the parties’ degree of departure from the standard of care. Although not an exhaustive list, in assessing comparativeblameworthiness courts have considered such factors as: 1.

The nature of the duty owed by the tortfeasor to the injured person: Aynsley v. Toronto General Hospital, (ON SC),[1968] 1 O.R. 425 at 444–45 (C.A.), aff’d (SCC), [1972] S.C.R. 435; Arnold v. Teno, (SCC), [1978] 2S.C.R. 287. 2. The number of acts of fault or negligence committed by a person at fault: Bruce v. McIntyre, (ON CA), [1954] 2D.L.R. 799 (C.A.), aff’d (SCC), [1955] S.C.R. 251. 3. The timing of the various negligent acts. For example, the party who first commits a negligent act will usually be more at fault thanthe party whose negligence comes as a result of the initial fault: Aynsley, supra. 4.

The nature of the conduct held to amount to fault. For example, indifference to the results of the conduct may be more blameworthy:Chamberland v. Fleming (1984), (AB KB), 12 D.L.R. (4th) 688 (Alta. Q.B.) (where the driver of a motor boat spedby a canoe causing it to tip, and the canoeist to drown). Similarly, a deliberate departure from safety rules may be more blameworthythan an imperfect reaction to a crisis: see John G. Fleming, The Law of Torts, 8th ed. (Sydney: Law Book Company, 1992) at 273–74. 5. The extent to which the conduct breaches statutory requirements.

For example, in a motor vehicle collision, the driver of the vehiclewith the right of way may be less blameworthy: Crothers v. Northern Taxi (1957), (MB CA), 10 D.L.R. (2d) 87 at 100(Man. C.A.); see also Clyke v. Blenkhorne (1958), (NS CA), 13 D.L.R. (2d) 293 at 304 (N.S.S.C.).

I agree that this is the appropriate approach. [ 69 ] However, Mr. Anderson argues that the CNA is inapplicable to him and relies on Wilhelm v Hickson , 2000 SKCA 1 , 183 DLR (4th) 45 [ Wilhelm ], in that respect. Wilhelm concerned an action against a solicitor for negligence in drawing a will that resulted in the failure of the testator’s intention to be implemented thereby depriving the plaintiff, a potential beneficiary, of a gift under the will. The trial judge found the testator to be 25% at fault under s. 3(1) of the CNA .

This Court found the CNA inapplicable for three reasons: (1) the pleadings did not raise it, (2) the testator, because he owed no duty to the beneficiaries, could not be guilty of a tort and therefore could not be found at fault under s. 3 of the CNA , and (3) the trial judge’s findings of fact did not permit it. [ 70 ] Mr. Anderson submits that like in Wilhelm , the CNA does not apply because he had no duty of care to Mr. Braun or Mr. Peszko and therefore could not be a tortfeasor who is subject to contribution. He also argues that as a consequence he cannot be made jointly and severally liable with Mr. Machula.

These submissions attempt to reargue causation, as is evident in Mr. Anderson’s explicit reference to and reliance on the causation arguments in grounds (

e) and (

j) of his factum. As earlier outlined, unlike in Wilhelm , the trial judge found Mr. Anderson to owe a duty of care to Mr. Thompson and Mr. Braun. He held Mr. Anderson fell below the standard of care and “but for” this omission, Mr. Braun would not have suffered loss. On this basis, Mr. Anderson is a tortfeasor, the CNA applies and he is subject to contribution and apportionment pursuant to sections 2 and 3 thereof. Moreover, the trial judge’s determination of joint and several liability with Mr. Machula is consistent with s. 3(2) of the CNA . [ 71 ] Mr. Anderson next argues the negligence of Mr.

Peszko in not discussing the statement of adjustments with Mr. Braun was not contemporaneous with and was subsequent to and severable from his negligence and, as a result, he should not be liable. He makes this argument several ways. [ 72 ] He submits first that because there was no causal nexus between his negligent acts or omissions and Mr. Peszko’s negligent acts or omissions, Mr. Peszko’s negligence was the sole cause of the loss and therefore Mr. Peszko should be allocated the entire fault for that loss. In aid of this argument, Mr.

Anderson essentially renews his previous failed causation argument in ground (a). Given my previous analysis, I will not address this argument further. [ 73 ] Mr. Anderson next submits that s. 6 of the CNA allows application of the last clear chance doctrine and applying that doctrine, Mr. Peszko’s negligence is the ultimate cause of the loss.

Section 6 reads as follows: 6 Where the trial is before a judge without a jury the judge shall not take into consideration any question as to whether, notwithstanding the fault of one party, the other could have avoided the consequences thereof unless he is satisfied by the evidence that the act or omission of the latter was clearly subsequent to and severable from the act or omission of the former so as not to be substantially contemporaneous therewith. [ 74 ] The last clear chance doctrine, or ultimate negligence doctrine, evolved because at common law contributory negligence of the plaintiff absolved the defendant from liability.

The courts developed the doctrine to ameliorate this hardship, placing liability on the defendant notwithstanding the plaintiff’s negligence on the basis that the defendant’s ultimate negligence caused the loss. This is essentially a search for which of the two parties, the plaintiff or defendant, was guilty of the greater negligence. The last clear chance doctrine pertains to the determination of causation and not apportionment.

However, even with that limit, the doctrine has been the subject of much academic criticism (see, for example, Lewis Klar, Tort Law , 5th ed (Toronto: Carswell, 2012) at 540–543; and The Honourable Allen M. Linden and Bruce Feldthusen, Canadian Tort Law , 10th ed (Markham, Ont: LexisNexis, 2015) at 530–533). There is some question whether it survives given the provisions of apportionment legislation in the various provinces. [ 75 ] This doctrine has also been the subject of comment in Vigoren v Nystuen , 2006 SKCA 47 , 266 DLR (4th) 634.

This Court, at paragraph 79, observed that Canadian cases have firmly rejected the notion of strict causation to allocate liability and have been loath to apply the last clear chance doctrine. [ 76 ] However, I need not determine whether that doctrine still applies in Saskatchewan. As a first point, s. 6 of the CNA does not purport to deal with causation but rather with apportionment of fault. Second, by applying the “but for” test and determining there were multiple causes for the loss, the trial judge firmly rejected any “ultimate negligence” on Mr. Peszko’s part.

While it is true that the acts or omissions of Mr. Anderson and Mr. Peszko were not themselves causally connected, they need not have been because there can be multiple yet independent acts or omissions that cause the loss ( Clements ). To the extent Mr. Anderson’s argument on this issue is another challenge to the trial judge’s findings of causation, it fails. [ 77 ] Mr. Anderson next argues that because Mr. Peszko’s negligence is “subsequent to and severable from” his negligence, the fault attributed to him should be reduced to zero on the basis of s. 6 of the CNA .

The trial judge did not expressly indicate whether he considered s. 6 as part of his consideration of how to apportion fault, although it is clear he was aware of the section. Admittedly, the trial judge, in the context of assessing the quantum of the loss at paragraph 212, found that if Mr. Peszko had reviewed the statement of adjustments with Mr. Braun he would have likely identified the deficiency and either the purchaser would have agreed to pay the sum of $514,800 or the sale would not have closed and Mr. Braun would have been able to sell to another purchaser, likely at a higher price.

However, such analysis does not preclude allocation of fault to Mr. Anderson based on the finding that Mr. Anderson’s acts were a concurrent cause of the loss. [ 78 ] The trial judge considered that the actions of Messrs. Thompson, Machula and Anderson with regard to the drafting and execution of the contract occurred before Mr. Peszko became involved but nonetheless found their actions contributed to the loss. It follows that there must therefore be some allocation of the fault to Mr. Anderson.

In making such an allocation, the trial judge at paragraph 186 addressed and was alive to the temporal difference between the negligence in the formation of the contract and the negligence of Mr. Peszko. [ 79 ] Although Mr. Peszko’s act was clearly subsequent to the act of Mr. Anderson, this must be seen in context. The contract was finalized in January 2006 with the closing to be in September of that year. The purchasers, for various reasons, delayed the closing until June 2007. It is a fair inference from this course of events and the evidence as a whole that no one except perhaps Mr.

Machula was alive to the fact that the addendum had been added until after closing. At paragraph 186, the trial judge, as part of his causation analysis,

clearly determined that the genesis of the problem was the addendum and not Mr. Peszko. The effect of the addition can be described as a “latent time bomb”. Certainly, the trial judge viewed it that way when at paragraph 224, in dealing with degrees of fault, he described Mr. Peszko’s negligent acts or omissions as a “crystallization of the problem”. In that sense, Mr. Anderson’s negligent acts, because they were latent until crystalized by Mr. Peszko’s negligence, can be said to be contemporaneous with Mr.

Peszko’s negligent acts or omissions. [ 80 ] The trial judge, in any event, must be taken to have not been satisfied that Mr. Peszko’s negligence was both clearly subsequent to and severable from the negligence of Messrs. Braun, Thompson, Anderson and Machula to the extent that Mr. Anderson’s fault was reduced to zero. This is evident in his allocation of fault. [ 81 ] The trial judge initially found Mr. Peszko 80% at fault and Mr. Braun and his companies 20% at fault. The trial judge allowed contribution to Mr. Peszko’s 80% allocation by the third parties and contribution by Mr. Anderson and Mr. Machula to Mr.

Thompson’s liability on the cross-claim. The trial judge’s ultimate global allocation of fault between the plaintiffs, the defendants and the third parties was as follows: Mr. Braun and companies 20% Mr. Peszko and Bill Roe, operating under the name Roe & Company 44% Mr. Thompson 18% Mr. Anderson and Mr. Machula 18% This allocation is set out in dollar values in paragraph 241 of the decision and clearly visits the lion’s share of individual fault on Mr.

Peszko. [ 82 ] I am not satisfied that an application of s. 6 could, in any event, reduce the share of fault of a concurrent tortfeasor to zero as submitted by Mr. Anderson. This would, as part of the fault analysis, negate the causation determination entirely. In short, even if Mr. Peszko’s acts or omissions were clearly subsequent to and severable from those of Mr. Anderson’s so as not to be substantially contemporaneous therewith, the degree to which Mr. Anderson’s fault would be ameliorated by virtue of s. 6 was a factual matter for the trial judge to determine.

Such an allocation is entitled to deference. [ 83 ] Mr. Anderson last argues that the trial judge failed to properly apply the comparative fault test because he failed to analyze the divergence of each of the tortfeasors’ actions from the applicable objective standard. [ 84 ] The trial judge carefully assessed, at paragraphs 223–228 of his decision, the comparative fault of the parties including Mr. Anderson by analyzing the extent of divergence of each of the actions of the parties from an objective standard. As observed by the trial judge, this is not an exact science.

While it is true that the trial judge’s analysis of fault and divergence is somewhat truncated in paragraphs 223–228, nevertheless, the earlier parts of his decision in regard to the duty of care of each party and the failure to meet that duty inform his later divergence analysis. In short, the trial judge was not required to repeat his analysis that had canvassed the factors mentioned in Heller . I cannot say the trial judge failed to properly apply the comparative fault test. [ 85 ] In conclusion on this issue, the trial judge appropriately applied the CNA and determined fault.

I see no palpable and overriding error in the trial judge’s apportionment of fault to Mr. Anderson. His decision in that respect is entitled to deference. VI. Conclusion [ 86 ] As mentioned at the outset, Mr. Thompson argued that there is an error in the formal judgment taken out by Mr. Braun and the companies respecting his liability of $185,328 to Mr. Peszko. He questions whether that figure conforms to the reasons of the decision under appeal. No party appealed this issue, least of all Mr. Thompson who, as mentioned at the outset, is not an appellant. This Court need not address this matter.

If leave is necessary, this Court grants Mr. Thompson leave to apply to the trial judge to determine if such an error exists and, if so, how it may be corrected. [ 87 ] The appeal of Mr. Anderson is dismissed. Mr. Peszko shall have his costs to be assessed. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Ottenbreit J.A.” for Jackson J.A.