Supreme Court of Canada
Canarama Western Ltd. v. Campbelltown Sewer Services Ltd., [1973] S.C.R. 266
Date: 1972-11-22
Canarama Western Ltd. (Defendant) Appellant;
and
Campbelltown Sewer Services Limited (Plaintiff) Respondent.
1972: October 19, 20; 1972: November 22.
Present: Abbott, Martland, Hall, Spence and Laskin JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
Contracts—Evidence—Sewerage contract—Interpretation—Agreement expressly providing for means by which contractor should establish cost of construction—Auditors’ statement properly admitted as evidence of such cost.
APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division, dismissing an appeal from a judgment of Primrose J. in favour of the respondent in an action on a contract. Appeal dismissed.
W.H. Hurlburt, Q.C., for the defendant, appellant.
J.E. Redmond, Q.C., for the plaintiff, respondent.
The judgment of the Court was delivered by
MARTLAND J.—I am in agreement with the reasons for judgment delivered by Johnson J.A. on behalf of the Appellate Division.
It is only necessary for me to deal with one submission made before this Court by counsel for the appellant, namely, that the respondent had not produced any admissible evidence of the actual cost of construction of its sewage disposal system, which it claimed from the appellant pursuant to cl. 19 of the agreement between them dated January 30, 1956. The evidence as to this cost was in the form of an audited statement prepared by the respondent’s auditors, which was sent to the appellant on November 16, 1965,
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pursuant to the written request of the appellant dated October 1, 1965. The appellant contends that this was hearsay evidence and was not admissible.
The answer to this contention is to be found in cl. 5 of the agreement abovementioned, which provided as follows:
The Contractor [Respondent] covenants and agrees that it shall keep true and accurate accounts of the cost of construction of the sewage collection and disposal system and shall furnish to the Company [Appellant] a financial statement certified by a firm of chartered accountants setting forth the true and accurate cost of the said system.
When the appellant requested this audited statement from the respondent it referred to the respondent’s obligation, under cl. 5 of the agreement, to provide it. This request was made prior to the commencement of this action. No objection was taken by the appellant to the cost of construction of the system, as disclosed by the statement, prior to or during the trial of this action. None of the items in it was questioned.
In this case the agreement between the parties expressly provided for the means by which the respondent should establish to the appellant its cost of construction and, accordingly, the audited statement was properly admitted as evidence of such cost.
I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the defendant, appellant: Hurlburt, Reynolds, Stevenson & Agrios, Edmonton.
Solicitors for the plaintiff, respondent: Bishop, McKenzie, Jackson, Redmond, Bentley & Sharpe, Edmonton.
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