Graysbrook Capital Ltd. v Viva Development Inc., 2023 NBKB 35
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By: Chloe Jardine (Articled Clerk)
The Plaintiff, Graysbrook Capital Ltd. (“Graysbrook”), pursued a claim against several defendants (“Defendants”) for the balance of a loan for the construction of a building in Saint John, New Brunswick. A fire occurred on March 16, 2022, following which the building was deemed a total loss. The Defendants then pursued a Third-Party Claim against three parties: Great American Insurance Company (“Great American”), Sears Insurance Ltd. (“Sears”), and Anderson-McTague and Associates Ltd. (“Anderson-McTague”). The basis of this claim was that Great American, Sears and Anderson-McTague were negligent in failing to provide fire insurance on the building.
Graysbrook has already obtained summary judgment of the original action. Sears filed a motion for summary judgement on the basis that there is no genuine issue for trial. The Defendants argued that the motion should be dismissed being it was only a motion for partial summary judgment. Granting of partial summary judgement is rare, and only intended to be used in instances where issues can be separated within the central action. There was distinction between Great American, Sears and Anderson-McTague in regard to the Third-Party Claim, with the allegations being made collectively against the three parties.
Sears’ motion was dismissed. Justice Grant stated that the claim against the third parties is based on assessing the actions or inactions of Sears’ employees. Being that the Defendants make the same claim about each of the third parties, a determination of whether Sears is liable cannot be differentiated from whether all three third parties are liable. Collectively, this meant there would be no meaningful impact on the length of the trial because Sears would be required to give evidence of their involvement to decide liability against the other two third parties.
Neither Great American nor Anderson-McTague were notified by Sears of the motion for partial summary judgment. Justice Grant granted leave to Sears to re-file a motion of summary judgement provided it includes all three third parties.