Introduction
In this noteworthy construction case, we successfully brought a motion for summary judgment on the basis that:
- The plaintiffs lacked evidence of causation.
- The plaintiffs possessed no expert evidence as to the applicable standard of care.
Background
This case began when the plaintiffs experienced repeated flooding on their property after the construction of a nearby bypass. Our client, Fermar, worked as the grading contractor on this project, and the plaintiffs claimed that Fermar had failed to keep the site free of obstructions. According to the plaintiffs, this led to the blockage of culverts, resulting in water being diverted from the site to their property.
The plaintiffs offered no expert evidence that Fermar failed to follow designs and instructions throughout the duration of the construction. Furthermore, the plaintiffs also failed to provide any evidence in relation to the standard of care of the grading contractor.
Legal Strategy
Our legal strategy in this matter was to bring a motion for summary judgment, on the basis that there was no evidence of:
- Fermar failing to keep the site clear of obstructions on the dates that the plaintiff claimed flooding occurred.
- Standard of care or Fermar’s breach of same.
Additionally, at the motion for summary judgment, the plaintiffs sought to amend their claim to add further flooding dates, so as to expand the scope of the claim and avoid the motion.
Result
Fortunately, the plaintiffs’ attempts to amend their claim were denied, due to the expiration of the limitation period. The court then found there was no evidence of Fermar’s work contributing to the flooding.
Moreover, the court agreed with our submissions that even if there was a blockage temporarily linked to a flooding event, the plaintiffs would not succeed due to their lack of evidence of Fermar’s standard of care or any breach of such standard. Ultimately, the court recognized that this was fatal to the plaintiffs’ claim.
The court dismissed the claim against Fermar and, in further reasons, awarded us significant costs.
The article in this client update provides general information and should not be relied on as legal advice or opinion.
This decision is cited as Cicinski v. Ontario (Minister of Transportation), 2014 ONSC 1052 (CanLII)