Supreme Court of Canada
Penvidic v. International Nickel, [1976] 1 S.C.R. 267
Date: 1975-01-28
Penvidic Contracting Co. Limited (Plaintiff) Appellant;
and
International Nickel Company of Canada, Limited (Defendant) Respondent.
1974: November 13, 14; 1975: January 28.
Present: Laskin C.J. and Judson, Spence, Pigeon and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Contract—Building contract—Damages—Basis of claim—Owner in breach of contract—Extra work involved.
Damages—Quantum—Difficulty in establishing loss—Estimation of loss.
Penvidic entered into a contract with International Nickel to lay ballast and track at a fixed sum per ton of ballast for a railroad which International Nickel was constructing. International Nickel was anxious to have the work completed expeditiously so the contract provided a completion date. Largely due to the failure of other sub-contractors, International Nickel did not complete the preliminary work by preparing the site, by providing a railway connection, a properly graded way, sub-ballast road bed and hydro crossings. Therefore Penvidic was constantly faced with problems and delays and claimed additional compensation. At trial damages were awarded for breach of contract, however on appeal the amount was reduced by the disallowance of certain items in the award.
Held: The appeal should be allowed.
There was clear evidence that International Nickel was in breach of contract. Penvidic suffered damages and was entitled to recover compensation for the breaches. The mere fact that there were difficulties in proving the additional costs involved does not relieve International Nickel of the responsibility for paying damages even if the amount of the verdict was a matter of estimation. The Court of Appeal was in error in regarding Penvidic as seeking to assert a claim under another or additional contract. The claim was not, apart from its alternative form of quantum meruit, advanced
[Page 268]
on such a basis. It was a claim for damages for breach of the original contract.
Peter Kiewit Sons’ Company of Canada Limited et al. v. Eakins Construction Limited, [1960] S.C.R. 361 distinguished; British Westinghouse Electric and Manufacturing Company Limited v. Underground Electric Railways Company of London, Limited, [1912] A.C. 673; Chaplin v. Hicks, [1911] 2 K.B. 786; Wood v. Grand Valley Railway Company (1913), 30 O.L.R. 44 referred to.
APPEAL from a judgment of the Court of Appeal for Ontario allowing an appeal from a judgment of Wilson J. at trial. Appeal allowed, judgment at trial, as amended to take account of clerical error and the abandonment of certain items of the claim, restored with costs.
George D. Finlayson, Q.C., and Alan Lenczner, for the appellant.
Dennis Lane, Q.C., and John M. Roland, for the respondent.
The judgment of the Court was delivered by
SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on March 23, 1973. By that judgment, the Court of Appeal allowed an appeal from the judgment of Wilson J. given after trial. Wilson J. had allowed the plaintiff judgment for the sum of $146,834.16. In the Court of Appeal both parties agreed that due to clerical errors and the failure of the learned trial judge to realize that certain items in the claim had been abandoned, the judgment at trial should have been for $111,577.74. The judgment of the Court of Appeal reduced that amount by two items, respectively, $51,527.77 and $4,114.29, for a total of $55,642.06 resulting in a reduction of the judgment in favour of the appellants to $55,935.68.
The action arose out of a contract to lay the track and do the top ballasting on a railroad which the respondents were having constructed in Northern Manitoba from the site of their mining property at Thompson, Manitoba, to Soab, Manitoba. The appellant company, under the direction of Mr.
[Page 269]
A. L. Penvidic, was a very experienced railroad building contractor. Having heard that the respondent was intending to build this line of railroad 47.5 miles in length, Mr. Penvidic asked to be allowed to tender on the contract and later did submit two tenders both of which were refused, and then submitted a third, which was accepted and a contract was executed under date of July 28, 1967, although the actual signing of the document would appear to have been at some later date. Mr. Penvidic visited the property and made detailed inspections prior to making his bid and it was clearly understood by both parties how the contract was to be carried out.
The respondent was most anxious to have the work completed as soon as possible, and paragraph 19 of the Instructions to Builders provided:
all the work as herein described including revisions, modifications, and additions shall be completed on or before July 15, 1968.
and paragraph 7 of the said instructions required the contractor to “perform” the work within the time specified and in a satisfactory manner”.
The appellant has set out in its factum the established practice in constructing railway lines. That summary seems to be in accordance with the evidence and I take the opportunity of quoting it in full:
(a) Land surveyors survey the centre line between the two terminal points.
(b) Soil tests are made to ascertain the nature of the ground over which the railway is to be built.
(c) The right of way is cleared on either side of the centre line.
(d) A grade road-bed is constructed with proper drainage.
(e) Sub-ballast to a specified depth is laid on the graded road-bed by truck.
(f) Trucks mounted with cranes travel along the graded road-bed distributing rails, ties and fasteners on the side of the grade topped with sub-ballast. These trucks operate on the sub-ballasted grade making certain that they
[Page 270]
are always at least one access road ahead of the Burrow Crane.
(g) A Burrow Crane, a rail mounted machine, proceeds from the rail-head with a crew and picks up and positions two links of 39 foot rail in front of it to connect with the length of rail on which it is proceeding. A special crew assigned to this machine operate it and place a bolt in the two lengths of rail permitting the Burrow Crane to pass on to that length of rail that it has just positioned and so on continuously.
(h) Following the Burrow Crane, further on-rail machines called bolting machines and hydraulic spikers proceed and securely fasten the lengths of rail to each other.
(i) Then follows a 650 ton locomotive and ten ballast cars which have side and underneath vents to permit an even distribution of top ballast to a depth of six inches.
(j) The locomotive and ballast cars are followed by an on-rail machine known as a ballast regulator which insures that the ballast dropped on and around the skeleton track is evenly distributed.
(k) Finally two large rail-mounted machines known as senior and junior electromatic tampers proceed along the rails and by means of an electronic eye and tamping jacks lift the rail evenly through the ballast and tamp the ballast underneath and around the lifted rail so as to firmly secure it.
It will be seen that that method requires the use of heavy machinery operating on rails. The respondent already had an operating railway line to its plant at Thompson, Manitoba, and it was intended that construction should start from that rail line and proceed southerly to Soab. This, of course, entailed the construction of a connection between the already existing railway line and that which was to be built by the appellant and the appellant could only get his machinery on to the building site by running over such connection. As it turned out, the connection was not constructed until August 5, 1968. The appellant had based his tender as finally executed upon the use of two locomotives owned by the respondent and ten specially designed dump cars. When neither the locomotives nor the cars could cross the non-existent connection, the appellant had to revise its whole method of construction and instead of starting at the existing rail-head and proceeding southerly, the appellant had to
[Page 271]
commence in the centre of the 47.5 mile run at a point known as the Pipe Mine and build both north and south of there toward the terminals at Thompson on the north and Soab on the south, just as the sub-grade had been prepared. This could only be accomplished by transporting by highway, which fortunately ran parallel to the railway line under construction, a 45-ton locomotive which the appellant owned and a series of lighter dump cars four in number.
This factor alone caused the appellant enormous increased expenses and delay, and the appellant sought to have an allowance of an additional twenty-five cents per ton for the top ballasting of the railway line under construction. The respondent refused such a request insisting that the appellant proceed to the construction of the railroad as it had bound itself in the contract. The respondent, however, did agree to pay $35,000. The said agreement is in a letter from the respondent to Mr. Penvidic dated March 8, 1968, and I quote the body of the letter in full:
The International Nickel Company has authorized the use of your locomotive for the above purpose for the lump sum price of Thirty-five Thousand Dollars ($35,000). Such lump sum to be compensation in full for all additional expenses and operations over and above the normal scope of your contract necessary to carry out advance ballasting and tracklaying until rail access is effected at the Thompson terminal allowing the substitution of INCO locomotives and full rail mobility of ballast cars on and off the project.
The following is included:
1. Supply and transportation of locomotive to the project including operating crew, fuel and all labour and repairs.
2. Supply and transportation of six ballast cars to the project including all standby costs, labour, repairs and incidentals.
[Page 272]
The learned trial judge held that that payment “in this situation related only to the supply and transportation of the equipment referred to”. Such a finding does not seem to have been interfered with in the Court of Appeal and I adopt it.
The appellant, in addition to its failure to obtain a railway connection, met with many frustrations in the completion of its contract. As will be seen from the outline above, a great deal of work must be performed upon the line prior to the laying of the track. The right of way must be surveyed, cleared, graded and covered with sub-ballast. This work was contracted by the respondent to various other contractors. Some of these contractors would seem to have quite failed to carry out their contracts either in a timely or efficient way; one of them was abandoned and the appellant took over that contract and performed it itself, for which it was duly paid, and that payment is not part of this litigation. However, despite the appellant’s best efforts, and largely due to the failure of the other contractors to perform properly their own contracts, the appellant was constantly faced with situations where it had to stop its track laying because the properly graded and sub-ballasted right of way in front of its machinery had failed to materialize. Often, the appellant would have to turn its equipment around and proceed to the opposite end of the track in order to find available a right of way ahead upon which it could lay track. This again added much to its costs and caused much delay.
The right of way crossed the hydro line in three different places and in each of those places delay was encountered because the respondent had failed to have the Hydro Electric Power Commission lift its line and permit the appellant’s equipment to operate beneath it. The right of way also crossed the provincial highway at one point and months of delay were encountered due to the respondent’s failure to obtain leave to cross that highway.
When the connection with the respondent’s railway at Thompson was finally obtained on August
[Page 273]
5, 1968, the more rapid and more efficient method of laying track became available at long last. Yet, it was not until August 12, 1968, that the respondent made available the heavy locomotive and ten cars which the original scheme had contemplated. Thereafter, the track laying proceeded with expedition but the ballasting had not been completed until some time in the month of August.
The appellant made a demand for additional compensation setting out that demand in full in its letter to the Divisional General Manager of the respondent under date of October 17, 1968. That demand was for the payment of an additional $94,027, i.e., 10 per cent of the contract price. The demand was refused in a letter dated October 17, 1968, from R. L. Hawkins, the Chief Engineer of the respondent, to the appellant. The learned trial judge dealt with that letter in detail at the close of his reasons for judgment.
The appellant issued its writ on May 19, 1969. The appellant claimed damages in the amount of $248,679.96 or, in the alternative, judgment for the same amount on a quantum meruit basis.
Wilson J. reserved judgment and in very detailed and carefully drafted reasons gave judgment for the plaintiff, here appellant, as I have said, in the sum of $146,834.16. This judgment was based on damages for breach of contract, the learned trial judge particularly noting that the claim for quantum meruit allowance was only as an alternative and stating that he intended to consider the matter only from the point of view of damages. The learned trial judge found damages under the following headings:
1. Rental of locomotive after the 15th of July 1968—4 weeks at $1,200 per
week $4,800.00
[Page 274]
2. 25 cents per ton to cover general costs for ballasting apart from lifting $51,527.77
3. Extra lifting $38,745.00
4. Idle time for 18 ballast cars $6,150.00
5. Overhead costs $45,611.39
Both the latter items were withdrawn by the appellant in the argument before the Court of Appeal and result in the adjustment of what would have been the judgment at trial if it had been confirmed by the Court of Appeal at $111,577.74.
The Court of Appeal, in its reasons, dealt only with the items which I have indicated as Nos. 1 and 2 above reducing the amount allowed for rental of locomotive from $4,800 to $685.71 and eliminating any amount for extra ballasting.
I pause to consider what different consideration can be given to item No. 2 in the learned trial judge’s award for damages, that is, this extra ballasting, and item No. 3, that is, the extra lifting, because apart from the failure to provide the connection with the railhead at Thompson for a year after it was supposed to have been provided the cause of both items of damage is the same and yet the Court of Appeal made no variation in the claim for extra lifting. The Court of Appeal in its reasons dealt with this claim for damages for extra ballasting in these words:
The learned trial judge awarded Penvidic damages in the sum of $51,527.77 on that basis. He was of the opinion that on the evidence it was a reasonable amount to be paid to Penvidic under these circumstances.
I am of the opinion that the learned trial judge erred in awarding Penvidic this sum. In my opinion, the contract between the parties for payment of thirty-five cents per ton for ballast was never abandoned nor abrogated, nor was there a new contract entered into between the parties to pay any additional sums for this portion of the work. The plaintiff performed the very work provided for in the agreement between the parties and is only
[Page 275]
entitled to be paid for that work, pursuant to the terms of the contract. No claim is asserted that this work could be classified as an extra, nor is the claim founded on the basis of quantum meruit. The claim for quantum meruit could not succeed unless the original contract could have been said to have been abandoned or abrogated.
A new contract for the payment of the twenty-five cents cannot be found in the absence of consent, express or implied. In the instant case, Inco had rejected in negotiations the very claim being re-asserted in this action, and I can find no legal basis upon which this claim can be successfully asserted now.
It would seem, therefore, that the disallowance of any claim for extra ballasting by the Court of Appeal was made upon the basis that such claim could only be accepted if there had been a new or additional contract awarding the plaintiff, here appellant, additional compensation. Such a claim might be considered to be one in quantum meruit. Judson J. in Peter Kiewit Sons’ Company of Canada Limited et al. v. Eakins Construction Limited, at p. 367, quoted Winfield on The Law of Quasi-Contracts at p. 52 as follows:
Another application of quantum meruit is as a mode of redress on a new contract which has replaced an earlier one. The position is that the parties (or one of them) have not observed the terms of the earlier contract, but it can be implied from their conduct that they have substituted another contract for the first. If they do so, and one of the parties does not fulfil his side of the second contract, the other can sue quantum meruit upon it for what he has done. The obligation sued upon is genuinely contractual, not quasi-contractual.
That, however, is not the basis upon which the learned trial judge considered the claim but rather on the claim for damages against the defendant for breach by the defendant of its contract with the plaintiff. The learned trial judge quoted, and I
[Page 276]
adopt, the statement made in Hudson’s Building and Engineering Contracts, 10th ed. (1970), p. 317:
The degree of possession or access which must be afforded by an employer must obviously vary with the nature of the work (which might, for instance, in an extreme case be for repairs or reinstatement of existing premises while still occupied) or other circumstances (as in subcontracts, when the work often must take place alongside and subject to interference by other trades or the main contractor’s own work). But in the case of a new project the main contractor will normally be entitled to exclusive possession of the entire site in the absence of express stipulation to the contrary. ‘I think the contract clearly involves that the building owner shall be in a position to hand over the whole site to the builder immediately upon the making of the contract. I think that there is an implied undertaking on the part of the building owner, who has contracted for the buildings to be placed by the plaintiff on his land, that he will hand over the land for the purpose of allowing the plaintiff to do that which he has bound himself to do.’ (Per Collins L.J. in Freeman v. Hensler (1900) 64 J.P. 260; Hudson’s B.C., 4th ed., Vol. 2, 292 at p. 296.)
Since a sufficient degree of possession of the site is clearly a necessary pre-condition of the contractor’s performance of his obligations, there must be an implied term that the site will be handed over to the contractor within a reasonable time of signing the contract, (See e.g., Roberts v. Bury Commissioners (1870) L.R.5 C.P. 310 at pp. 320 and 325.) and, in most cases, it is submitted, a sufficient degree of uninterrupted and exclusive possession to permit the contractor to carry out his work unimpeded and in the manner of his choice. This must particularly be so when a date for completion is specified in the contract documents.
‘If in the contract one finds the time limited within which the builder is to do the work, that means, not only that he is to do it within that time, but it means also that he is to have that time within which to do it.’ (Per Vaughan Williams L.J. in Wells v. Army & Navy Co‑operative Society (1902) 86 L.T. 764; Hudson’s B.C., 4th ed., Vol. 2, at p. 354.)
Certainly, in the present case, as the learned trial judge found, there was manifold evidence of failure by the defendant to prepare a site not only as to providing a connection at Thompson but also for a failure to provide, well-nigh constantly
[Page 277]
through the whole of the appellant’s work, a properly graded and subballast road bed, and also the failure to provide for hydro and highway crossings. Then if those breaches did occur and the plaintiff suffered damages thereby, the plaintiff is entitled to recover compensation for such breaches. In an ordinary case, the plaintiff in an action for damages for such breaches of contract would prove the additional costs which it incurred. As Wilson J. points out in his reasons for judgment, despite the length of the trial, “the evidence was not as helpful as one would have expected and more records giving more particulars of when and where different types of work were being done would have been very useful”. Under these circumstances, the plaintiff chose to put its claim for this extra ballasting on the basis of a claim for an additional sum per ton. That is the fashion in which it had attempted to have the respondent agree to pay extra compensation. That such an attempt ended in failure does not prevent the award of damages using the same measure as had been used in the vain attempt to obtain extra compensation.
The learned trial judge expressly accepted the evidence of W.H. MacIlroy, an independent witness giving evidence for the plaintiff, who was asked this question:
Q. And as a person who has advised on bidding on these jobs, what do you think of the figure of 60 cents a ton for paying ballast by the method that he was, in the main, obliged to use?
A. Reasonable.
Earlier in his testimony, the same witness was asked to comment on the track laying method which Mr. Penvidic proposed to employ and he replied:
A. Yes. The method as proposed by Mr. Penvidic, and confirming other testimonies, indicated that the track was to be laid starting from Thompson, and laid continuously in a southern direction until
[Page 278]
the terminus of the railway, and in my railroad building experience this is the only method that I know of, that you would start at the connection with the present railway that the new line is to proceed from, and then work towards the terminus of the new railway spur.
I have never heard of any railway commencing at a point near the centre, and working both ways from that centre point. Had I not been told about this project at any time prior to it being built, I would certainly have thought that this would be the method in which it would be built, that is to start from “A” and proceed in a progressive fashion to the end of the job.
I quote the latter testimony in reference to the respondent’s argument in this Court that it was no part of the contract that the appellant commence laying track from Thompson and proceed southerly.
It is quite evident that a man with Mr. MacIlroy’s very outstanding experience considered such procedure the only efficient method.
Viscount Haldane L.C., in British Westinghouse Electric and Manufacturing Company Limited v. Underground Electric Railways Company of London, Limited, said at pp. 688-9.
The quantum of damage is a question of fact, and the only guidance the law can give is to lay down general principles which afford at times but scanty assistance in dealing with particular cases. The judges who give guidance to juries in these cases have necessarily to look at their special character, and to mould, for the purposes of different kinds of claim, the expression of the general principles which apply to them, and this is apt to give rise to an appearance of ambiguity.
Subject to these observations I think that there are certain broad principles which are quite well settled. The first is that, as far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed.
[Page 279]
The difficulty in fixing an amount of damages was dealt with in the well known English case of Chaplin v. Hicks, which had been adopted in the Appellate Division of the Supreme Court of Ontario in Wood v. Grand Valley Railway Company, where at pp. 49-50, Meredith C.J.O. said:
There are, no doubt, cases in which it is impossible to say that there is any loss assessable as damages resulting from the breach of a contract, but the Courts have gone a long way in holding that difficulty in ascertaining the amount of the loss is no reason for not giving substantial damages, and perhaps the furthest they have gone in that direction is in Chaplin v. Hicks, [1911] 2 K.B. 786. In that case the plaintiff, owing, as was found by the jury, to a breach by the defendant of his contract, had lost the chance of being selected by him out of fifty young ladies as one of twelve to whom, if selected, he had promised to give engagements as actresses for a stated period and at stated wages, and the action was brought to recover damages for the breach of the contract, and the damages were assessed by the jury at £100. The defendant contended that the damages were too remote and that they were unassessable. The first contention was rejected by the Court as not arguable, and with regard to the second it was held that “where it is clear that there has been actual loss resulting from the breach of contract, which it is difficult to estimate in money, it is for the jury to do their best to estimate; it is not necessary that there should be an absolute measure of damages in each case”: per Fletcher Moulton, L.J. at p. 795.
When Wood v. Grand Valley Railway Company, supra, reached the Supreme Court of Canada, judgment was given by Davies J. and was reported in 51 S.C.R. 283, where the learned justice said at p. 289:
It was clearly impossible under the facts of that case to estimate with anything approaching to mathematical accuracy the damages sustained by the plaintiffs, but it seems to me to be clearly laid down there by the learned judges that such an impossibility cannot “relieve the wrongdoer of the necessity of paying damages for his breach of contract” and that on the other hand the tribunal to estimate them whether jury or judge must
[Page 280]
under such circumstances do “the best it can” and its conclusion will not be set aside even if the amount of the verdict is a matter of guess work.
I can see no objection whatsoever to the learned trial judge using the method suggested by the plaintiff of assessing the damages in the form of additional compensation per ton rather than attempting to reach it by ascertaining items of expense from records which, by the very nature of the contract, had to be fragmentary and probably mere estimations. In doing so, he had the testimony of MacIlroy, an experienced railroad builder, whom the learned trial judge found to be an honest and a satisfactory witness, and he was assisted by an assessor, Mr. T.W. Creighton, of whom the learned trial judge said:
His broad experience during the many years he spent in the service of the Canadian Pacific Railway enabled me to understand the evidence relating to the construction problems before the Court.
Using that method, the learned trial judge assessed the damages due to additional ballasting at $51,527.77. The Court of Appeal, in disallowing this item, were of the opinion that the plaintiff, here appellant, was prevented from recovering it by such authorities as Peter Kiewit Sons’ Company of Canada Limited et al. v. Eakins Construction Limited, supra, on the ground that the plaintiff was seeking to assert a claim under another or additional contract and that the parties had made no such additional contract. As I have pointed out, the plaintiffs claim, apart from its alternative form of a quantum meruit, was not advanced on such basis of an additional contract but on the basis of damages for the breach of the original contract, which breaches I have outlined above.
In my view, the Kiewit v. Eakins case is a different situation. There, the sub-contractor tendered for the construction work and prior to entering into the construction work the conditions of construction were amended by adding the words “Bottom of timber piles to be below bottom of
[Page 281]
sheet piling.” The sub-contractor noted this addition at once but merely mentioned it to the head contractor and thereafter continued to complain of it, but none the less proceeded to attempt to carry out the work and in so doing certainly sustained larger costs than if the work had been performed in accordance with the contract as first drafted. The plaintiff under those circumstances could not obtain additional compensation unless it proved such new contract.
The plaintiff, in this case, does not depend on any change in the original contract which resulted in higher cost to him. He complains of a breach of both the express and implied conditions in the original contract and in the view of the trial court, confirmed on this point, in my opinion, by the judgment of the Court of Appeal, he has proved such breaches. Under such circumstances, he is, as I have said, entitled to damages, and I am of the opinion that those damages were properly assessed by the learned trial judge at the figure of $51,527.77.
I turn now to the only other item of damages found by the learned trial judge and materially reduced by the judgment of the Court of Appeal, that is, the claim for compensation for use of the appellant’s own locomotive and crews. The plaintiff, here appellant, had, in its summary of its claim as submitted to the learned trial judge and marked Ex. 115, claimed the sum of $13,200. Under the subsequent agreement between the parties, to which I have referred above, the plaintiff had agreed to supply rental of locomotives including crew etc., for the period from the 15th of March to the 15th of July. It had been anticipated at that later date that the connection at Thompson would have been completed and the defendant’s, here respondent’s, own locomotives would have been available. That connection was not completed until August 5, 1968, but the respondent’s locomotive was not available until August 12, 1968, and then only one not two locomotives was available. The appellant chose to leave its own light locomotive on the job and, in fact, it remained on the job
[Page 282]
until the completion. Wilson J. reduced the claim which I have said was made at the sum of $13,200 materially, allowing for an additional rental at the agreed rate of $1,200 per week only for the period from July 15 to August 17, 1968, at which time the appellant had added a Mannix sled which materially increased the productiveness of the crew.
Wilson J. noted that the appellant’s own locomotive had been broken down for a month and he took that factor into account when making the reduction in the claim as presented by the plaintiff at trial. On the evidence, Wilson J. was of the opinion that in all of the circumstances and particularly in view of the fact that the railroad was then lagging far beyond the completion date set out in the contract, such additional claim was reasonable in the sum he fixed at $4,800. The Court of Appeal was of the opinion that that sum should be reduced by allowing only four-sevenths of a week at the rate of $1,200 per week and that it should be allowed for four days between the 5th of August and the 12th of August. It was said in the Court of Appeal:
The use of the Respondent’s locomotive prior to August 5 was paid for under the agreement wherein Penvidic received $35,000.00 and the locomotive provided for by Inco was available from August 12.
The error in this statement is that the use of the locomotive prior to August 5th had not been paid for by the sum of $35,000. That sum was in terms to apply only to the rental of the locomotive and crew up to the 15th of July. I am of the opinion, therefore, that the learned trial judge was quite correct in assessing the claim for four weeks’ additional rental and I am of the opinion that the item of $4,800, as allowed by the learned trial judge, should be restored.
For the above reasons, I have come to the conclusion that the two sums of $51,577.74 and $4,114.29, as deducted by the Court of Appeal,
[Page 283]
should be restored and, therefore, the appellant should have judgment for the sum of $111,577.74. The appellant is entitled to its costs throughout.
Appeal allowed with costs.
Solicitors for the appellant: McCarthy & McCarthy, Toronto.
Solicitors for the respondent: Osler, Hoskin & Harcourt, Toronto
Email this Content