Supreme Court of Canada
Prince Albert Pulp Co. Ltd. et al. v. The Foundation Company of Canada, Ltd., [1977] 1 S.C.R. 200
Date: 1976-02-25
Prince Albert Pulp Company Ltd. and Parsons & Whittemore Pulpmills Inc. (Defendants) Appellants;
and
The Foundation Company of Canada, Limited (Plaintiff) Respondent.
1975: November 12, 13; 1976: February 25.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN.
Contracts—Contract for erection of pulpmill—Certificate given to contractor establishing that work completed—Subsequent claim for damages for cost of correcting construction defects not precluded.
Interest—Improper withholding of just debt under cost plus contract—Applicable rate of interest equivalent to bank borrowing rate of contractor.
In an action involving the performance of the respondent company (Foundation) under a cost plus contract for the construction and erection of a pulpmill, the trial judge gave judgment in favour of Foundation for the amount of $1,997,749.61 and awarded a lien on the mill property of the first appellant (PAPCO). He allowed $200,000 on the counterclaim of the second appellant (P & W Pulpmills) as a set-off against the $1,997,749.61. The appellants’ appeal to the Court of Appeal for Saskatchewan was dismissed by unanimous decision. An appeal to this Court was dismissed following the submissions made on behalf of the appellants.
What remained to be considered was Foundation’s cross-appeal on two points: 1. Whether the award of $200,000 on the counterclaim of P & W Pulpmills should have been made. 2. Whether the Court of Appeal had erred in failing to award Foundation interest at its borrowing rates instead of the 6 per cent which had been allowed.
On the latter point, the trial judgment allowed interest at the rate of 6 per cent on the holdback of $796,117 and at 5 per cent on the balance of Foundation’s net recovery of $1,797,749.61,i.e., on $1,001,632.61. This was varied by the Court of Appeal by allowing 6 per cent interest overall.
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Held: The cross-appeal should be allowed with respect to the claim for interest and the judgment of the Court of Appeal should be varied with respect to that item.
A certificate in the form of a letter agreement between P & W Pulpmills and Foundation established that the work required to be done by Foundation under its contract with P & W Pulpmills had been performed and completed. It did not preclude P & W Pulpmills from contending that the cost of the work was excessive and that P & W Pulpmills had sustained damage by being required to pay for work which had not been performed with due diligence. Although the damages to be awarded could not be ascertained by precise means, the estimate of the trial judge was determined after he had made a careful and thorough review of all the evidence. His conclusion was fully supported by the Court of Appeal. In these circumstances, it should not be altered by this Court.
Applying the principle stated in Toronto Railway Co. v. City of Toronto, [1906] A.C. 117, on the particular facts of this case, Foundation had established the improper withholding by P & W Pulpmills of payment of a just debt, and the circumstances made it fair and equitable that Foundation be compensated by the payment of interest.
The appellants’ contention that an award of interest of more than 5 per cent was debarred by ss. 3, 12 and 13 of the Interest Act, R.S.C. 1970, c. I-18, was rejected. Also, the Court could not agree with the Court of Appeal that, because a rate of interest was provided in respect of certain holdbacks properly to be withheld, which would be added to those holdbacks when they became payable, that should necessarily be the proper rate to be applied in assessing compensation for the refusal to pay to Foundation the amount to which it was entitled under the contract.
By refusing to pay to Foundation the costs of the project which it had incurred, P & W Pulpmills was, in essence, compelling Foundation to finance part of the cost of the project at its own expense. On the other hand, P & W Pulpmills had had the advantage of the use of funds which were properly payable to Foundation. The proper compensation which it should receive was a rate of interest equivalent to its own borrowing rates.
Accordingly, the rates of interest applicable should be equivalent to the bank borrowing rates of Foundation over the period from November 1, 1968, the approximate date when the action was commenced, to the date of the judgment of this Court. Such interest should be payable for that period. The power of the Court to make this direction was to be found in s. 52 of the Supreme Court Act.
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Toronto Railway Co. v. City of Toronto, [1906] A.C. 117; The Custodian v. Blucher, [1927] S.C.R. 420, applied; Lumber Manufacturers’ Yards Ltd. v. Weisgerber, [1925] 1 W.W.R. 1026; Beaver Lumber Co. v. Currey, [1926] 3 W.W.R. 404; Gettle Bros. Construction Co. v. Alwinsal Potash of Canada Ltd. (1969), 5 D.L.R. (3d) 719, aff’d. [1971] S.C.R. 320, referred to.
CROSS-APPEAL from a judgment of the Court of Appeal for Saskatchewan, dismissing an appeal from a judgment of MacDonald J. (Appeal dismissed at conclusion of the argument without written reasons.) Cross-appeal allowed in part.
R.L. Barclay and M. Gerwing, for the defendants, appellants.
D.K. Laidlaw, Q.C., E.A. Odiskaw and A. Lenczner, for the plaintiff, respondent.
The judgment of the Court was delivered by
MARTLAND J.—Parsons & Whittemore Inc. (hereinafter referred to as “P & W Inc.”) entered into an agreement dated December 2, 1965, with the appellant Prince Albert Pulp Company Ltd. (hereinafter referred to as “PAPCO”) under which P & W Inc. indicated that it was willing and able to construct the necessary buildings and supply and erect the equipment and to provide engineering services required for the erection of a pulpmill near Prince Albert, Saskatchewan, for the appellant PAPCO, all for the sum of $52,184,000. The said mill was to produce 650 dry short tons per day of bleached sulfate pulp. PAPCO was incorporated for the specific purpose of operating such a pulpmill and was owned as to 30 per cent thereof by the Province of Saskatchewan and as to the other 70 per cent by P & W Inc.
On December 4, 1965, the agreement was assigned by P & W Inc. to Parsons & Whittemore Industries Inc. (hereinafter referred to as “P & W Industries”). On December 8, 1965, P & W Industries subcontracted to the appellant Parsons & Whittemore Pulpmills Inc. (hereinafter referred to as “P & W Pulpmills”) the supply of certain of the
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machinery and equipment listed in the agreement and the construction of the mill and certain of the facilities in accordance with specifications furnished by a consulting engineer to be engaged by Parsons & Whittemore Contractors Limited for the sum of $42,684,000.
On June 3, 1966, P & W Pulpmills entered into an agreement with the respondent The Foundation Company of Canada, Limited (hereinafter referred to as “Foundation”) for the construction and erection of the mill. The work was to be performed for cost plus a fixed fee of $300,000 Canadian and called for completion of the work no later than 720 days after June 3, 1966. The project was commenced by Foundation in June of 1966.
The contract provided for advance payments in art. 5 as follows:
5.1 Within thirty (30) days after the execution of this Agreement Pulpmills shall make an advance payment of Can. $300,000 to the Contractor. Where the amount required for the project will substantially exceed Can. $300,000 in any month, Pulpmills will increase advance payments by a reasonable amount and, in turn, where the requirements are expected to be lower in any month the advance payments will be maintained at the reduced level.
Beginning in March 1968, as the project was nearing completion, P & W Pulpmills was late in supplying funds to Foundation on its requisitions. In the result, on July 4, 1968, the project then having been substantially completed by Foundation, by agreement with P & W Pulpmills, Foundation turned over the project and left the job. It was furnished by P & W Pulpmills with a final certificate of completion and acceptance pursuant to the following provision in the contract:
ARTICLE XXXVI
Acceptance
(a) Upon receipt of notice that the work together with all extra work is ready for final inspection and acceptance, the Engineer will promptly make such inspection, and when he finds such work acceptable under the Contract and the Contract fully performed he will promptly issue a final certificate, over his own signature, stating that the work required by this Contract has been
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completed and is accepted by him under the terms and conditions thereof.
The learned trial judge found as a fact that Foundation had expended the sum of $18,475,000 on the cost of the work. It is admitted by all parties that the amount paid against the said expenditure is $16,656,500.
On August 7, 1968, Foundation filed lien claims in respect of the estate or interest of PAPCO in five parcels of land in the Land Titles Office for the Land Registration District of Prince Albert, pursuant to the Saskatchewan Mechanics’ Lien Act, R.S.S. 1965, c. 277, in respect of the work performed under the agreement between Foundation and P & W Pulpmills. On November 18, 1968, Foundation sued PAPCO, P & W Pulpmills and Montreal Trust Company. The claim against the last-named company was dismissed at trial and is not now in issue. The claim against the other two defendants was for $2,350,000. In addition to claiming for the difference between the above-mentioned amounts of $18,475,000 and $16,656,000, Foundation claimed the unpaid balance of its fee of $300,000, i.e., $80,000, and for various additional items. Included in the claim was a claim for interest upon various amounts owing to Foundation under the contract. In the alternative, such interest was claimed by way of damages.
PAPCO and P & W Pulpmills denied liability, alleging that Foundation had committed substantial violations and material breaches of the contract and had been grossly negligent in the performance of it. These allegations were itemized in 13 paragraphs of the statement of defence. They were repeated in a counterclaim, which asked for damages in the total amount of $14,489,754.55.
The trial lasted for approximately six weeks. The learned trial judge, after a lengthy and careful review of the evidence, gave judgment in favour of Foundation for the amount of $1,997,749.61 and awarded a lien on the property of PAPCO described in the mechanics’ lien. Prior to the trial, the counterclaim had been reduced by some
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$7,000,000. The learned trial judge allowed $200,000 on the counterclaim of P & W Pulpmills as a set-off against the $1,997,749.61.
The appellants’ appeal to the Court of Appeal for Saskatchewan was dismissed by unanimous decision. On the appeal to this Court, it was announced, following the submissions made on behalf of the appellants, that the Court would not interfere with the findings and conclusions of the two Courts below on the points raised in argument to support the appeal. The appeal was dismissed with costs.
What remains to be considered is Foundation’s cross-appeal on two points:
1. Whether the award of $200,000 on the counterclaim of P & W Pulpmills should have been made.
2. Whether the Court of Appeal had erred in failing to award Foundation interest at its borrowing rates instead of the 6 per cent which had been allowed.
On the latter point, the trial judgment allowed interest at the rate of 6 per cent on the holdback of $796,117 and at 5 per cent on the balance of Foundation’s net recovery of $1,797,749.61, i.e., on $1,001,632.61. This was varied by the Court of Appeal by allowing 6 per cent interest overall.
The provision for interest on the holdback is found in the contract in art. 4.2 dealing with “Cost of the Work”, for which Foundation was entitled to be paid. Clause L includes in “Cost of the Work”:
Interest on the amount of all holdbacks from the date that such holdbacks reach a figure of Can. $250,000 to the date of payment calculated at the rate of six per cent (6%) per annum;
The contract provided for the withholding of 5 per cent of the progress payments to which Foun-
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dation became entitled from time to time in respect of the cost of the work.
I will deal first with the matter of the $200,000 amount which the trial judge awarded to P & W Pulpmills on its counterclaim.
Counsel for Foundation contended:
1. That the appellants were precluded from advancing this claim by virtue of the final certificate given under art. XXXVI, which article has been previously quoted.
2. That P & W Pulpmills had abandoned its claim for damages for the cost of correcting construction defects.
3. That the evidence did not establish a basis for awarding $200,000 on the counterclaim.
The certificate was in the form of a letter agreement between P & W Pulpmills and Foundation, signed, on behalf of the former, by its resident manager J.D. Rhodes. The relevant portions of this letter are as follows:
We are writing to confirm our recent discussions wherein it was mutually agreed that since your work as Contractor on the above Pulp Mill has been substantially completed, it now becomes economical for us to take over ourselves and complete all outstanding work with our own labour forces, rather than have you complete the same with your forces under the provisions of the Construction Contract.
May we therefore confirm our mutual agreement on the following points:
1) Effective July 12th, 1968, we will assume the responsibility for completing all outstanding work on the above project, and thereafter you shall merely provide such technical advisers or assistants as we may reasonaly require chargeable to us as a cost of the work.
2) We hereby accept the work, quote, “as is” unquote, (on July 12th, 1968) and hereby certify that the work required under the Construction Contract has been completed by you, and is hereby accepted under the terms and conditions thereof.
3) It is understood and agreed that the above certificate of completion signed by us at the bottom hereof,
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shall be considered to be as valid and effective as if signed by the engineer, pursuant to the conditions of Article XXXVI of the Construction Contract.
This certificate establishes that the work required to be done by Foundation under its contract with P & W Pulpmills had been performed and completed. In my opinion it does not preclude P & W Pulpmills from contending that the cost of the work was excessive and that P & W Pulpmills had sustained damage by being required to pay for work which had not been performed with due diligence.
With respect to the second point, P & W Pulpmills had initially claimed, by its counterclaim, damages in the amount of $675,000 for expense which it had incurred for doing work omitted to be done by Foundation and for correction of major construction defects. This claim was abandoned prior to trial. However, the $200,000 awarded in respect of the counterclaim was not in respect of expense incurred by P & W Pulpmills to correct errors, but was, essentially, compensation for excess costs incurred by Foundation in the performance of its contract. P & W Pulpmills was permitted to set this off as against the total contract price awarded to Foundation.
Foundation’s contention in respect of the third point is that, in respect of the items of negligence listed by the trial judge, the evidence does not establish damage in anything like the amount of $200,000.
The learned trial judge said:
The plaintiff was negligent and/or did not exercise due diligence in the following particulars:
1. Employing incompetent engineers who made incorrect surveys and wrongly located piles,
2. Incorrectly built the chip silo and other parts of the mill contrary to the plans,
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3. Employing surplus supervisory personnel on occasion and being deficient of supervisory personnel after January, 1968,
4. In installing the weigh scale,
5. In fabricating some of the fibre pipe,
6. In completing some cement work.
In Toronto Hockey Club Ltd. v. Arena Gardens of Toronto, Ltd., [1926] 3 W.W.R. 26, Warrington, L.J. for the Judicial Committee of the Privy Council said at p. 29:
“The amount of damages in such a case as the present cannot be ascertained by any precise means, it must be more or less guess work.”
I find that statement very appropriate herein.
I assess damages caused to the defendant by the plaintiff in the sum of $200,000.
His findings and conclusion were supported by the Court of Appeal.
The learned trial judge carefully examined the evidence in respect of each violation of the contract alleged in the statement of defence and counterclaim.
It was claimed that Foundation had assigned incompetent and inexperienced project managers, supervisors and superintendents to the work. The trial judge found that a field engineer employed by Foundation was completely incompetent and a project engineer was unable to perform necessary surveys. There had been a large number of errors.
He found that Foundation had failed, in some respects, after November 1967, properly to supervise the work.
It was alleged that Foundation had assigned incompetent survey crews to lay out permanently embedded items in concrete structures and pile locations, resulting in extra work and project delays. This allegation was held to be substantiated.
Foundation called as a witness Roy Morton, who had been employed by P & W Pulpmills as deputy resident manager from June 1966 to February 1968. He had ceased his employment with P
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& W Pulpmills prior to the trial. His evidence related to the performance of the work by Foundation. While employed by P & W Pulpmills he prepared a report dated January 25, 1968. Of this report, the trial judge said:
This report was made during the course of the job while the facts were fresh in his mind and is of assistance in assessing the damage caused by Foundation. In it he stated:
“The following list comprises what I consider Foundation Company’s most costly errors. These are all entirely owing to mistakes in layout by indifferent survey crews and a lack of proper field engineering supervision. No costs for correcting these errors were recorded. My estimated figures are guesses only.”
Morton then itemized some of the errors and estimated the cost of repairs at $10,000. He then went on to say:
The above represent obvious errors in engineering layout. In addition there were countless minor errors where anchor bolts and equipment foundations were incorrectly placed requiring removal and replacement.
In my opinion, however, the total of all of the above costs would be very minor if they could be compared to the extra costs involved on this project due to mismanagement in the first year of operation. Unfortunately, there is no way of assessing even approximately what these extra costs would amount to.
Counsel for Foundation contended that, other than the estimates made in Morton’s report, there is no evidence in money amounts as to the costs involved in respect of the breaches of the contract found by the trial judge. This is true, but those breaches included items in addition to the matters covered in Morton’s report and the final paragraph of the report refers to costs due to mismanagement which he could not assess. The trial judge recognized that the damages to be awarded could not be ascertained by precise means. He had to make an estimate.
In my opinion that estimate should not be disturbed on an appeal to this Court. It was determined by a judge who had made a careful and
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thorough review of all the evidence. His conclusion was fully supported by the Court of Appeal. In those circumstances, I do not think that it should be altered by this Court.
The second question on the cross-appeal is as to the award of interest. It is the contention of Foundation that, instead of the award of interest at a rate of 6 per cent, it should properly be entitled to a rate of interest equivalent to the borrowing rates of Foundation from time to time.
In support of the power of the Court to make an order as to the payment of interest, counsel for Foundation refers to the provisions of s. 46 of The Queen’s Bench Act, R.S.S. 1965, c. 73:
Interest shall be payable in all cases in which it is now payable by law, or in which it has been usual for a jury to allow it.
He cites the case of Toronto Railway Company v. Corporation of the City of Toronto, in which the Privy Council had to consider the application of s. 113 of the Ontario Judicature Act, R.S.O. 1897, c. 51, which is exactly the same as the Saskatchewan provision. At p. 121 it was held:
The result, therefore, seems to be that in all cases where, in the opinion of the Court, the payment of a just debt has been improperly withheld, and it seems to be fair and equitable that the party in default should make compensation by payment of interest, it is incumbent upon the Court to allow interest for such time and at such rate as the Court may think right.
This case was followed by this Court in The Custodian v. Blucher, at p. 424.
A number of cases in Saskatchewan recognize the power of the Court to award interest in such circumstances: Lumber Manufacturers’ Yards Limited v. Weisgerber et al.; Beaver Lumber Company, Limited v. Curry et al., and Gettle Bros. Construction Co. Ltd. v. Alwinsal Potash of Canada Limited. An appeal in the last-mentioned case to this Court was dismissed without written reasons. The power to award interest was, of
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course, recognized by the Court of Appeal in the present case.
The appellants contend that an award of interest of more than 5 per cent per annum is debarred by ss. 3, 12 and 13 of the Interest Act, R.S.C. 1970, c. I-18. Those sections provide as follows:
3. Except as to liabilities existing immediately before the 7th day of July 1900, whenever any interest is payable by the agreement of parties or by law, and no rate is fixed by such agreement or by law, the rate of interest shall be five per cent per annum.
12. Sections 13, 14 and 15 apply to the Provinces of Manitoba, British Columbia, Saskatchewan and Alberta and to the Northwest Territories and the Yukon Territory only.
13. Every judgment debt shall bear interest at the rate of five per cent per annum until it is satisfied.
It would appear to me that s. 3 is intended to apply where parties to an agreement have stipulated for the payment of interest, but no rate has been provided for, or where by law it is directed that interest be paid, but no rate has been set. The Toronto Railway case decided that a Court may allow interest where payment of a just debt has been improperly withheld, and it is fair and equitable that the debtor should make compensation by payment of interest, “at such rate as the Court may think right”. Where a Court, in its judgment, has awarded interest on this principle, the rate which it fixes is payable by law and the rate is fixed by law. In such a case the section would not be applicable.
Section 13 of the Act, in respect of the areas prescribed in s. 12, prescribes the rate of interest payable on a judgment debt. This means that, when the Court has determined the amount payable pursuant to its judgment, thereafter interest at the prescribed rate is payable on that amount. What we are concerned with here is as to what should be the amount of that judgment. The Toronto Railway case states that, by its judgment, a Court may, in the circumstances defined in that case, require the debtor to make compensation for failure to pay a just debt, in the form of interest upon the amount of that debt at a rate prescribed
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by the Court in its judgment. The debt plus the interest allowed would then be the amount of the judgment. It is only at that stage that s. 13 would apply.
In my opinion, in the circumstances of this case, the principle stated in the Toronto Railway case ought to be applied. The trial judge found as a fact that Foundation had expended $18,475,000 on the costs of the work, of which it had received payment of $16,656,500. It left the job on July 4, 1968, with a final certificate of completion. No payment was made to Foundation thereafter. There had been no suggestion of a counterclaim at the time this certificate was given. The amount of the counterclaim was not indicated until the appellants’ statement of defence and counterclaim was filed on October 8, 1970, almost two years after the statement of claim had been filed.
The counterclaim, when filed, was for more than $14,000,000. On the first examination for discovery, in May 1972, approximately $7,000,000 of this claim was dropped. The trial judge found that the appellants had substantially overstated their case at all times. In the end result, the trial judge allowed a set-off of only $200,000.
The conclusion to be drawn from all these circumstances and from the lack of evidence at the trial to support the counterclaim is that P & W Pulpmills was seeking to withhold payment of a debt which had properly become due when P & W Pulpmills issued its final certificate of completion, and that, in the light of all the circumstances, it is just and equitable that compensation ought to be made by the payment of interest.
The Court of Appeal allowed interest to Foundation at the rate of 6 per cent per annum upon the amount found to be payable to it from November 1, 1968. Foundation’s statement of claim was issued on November 18, 1968, and had claimed interest by way of damages from October 31, 1968.
The reasons given by Maguire J.A., whose view was accepted by the other members of the Court,
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for adopting a rate of 6 per cent per annum were as follows:
I am of the opinion that the respondent’s right to interest at a rate higher than the five per cent allowed by the trial Judge and appellant’s liability for interest falls to be determined on another ground.
Article 5.3 of the contract requires the appellant, P & W Pulpmills within specified days to pay to respondent ninety-five per cent of each monthly invoice covering the “Cost of the Work” as certified to by the Engineer. Cost of the Work, Article 4.2 includes sub clause L., reading:
“Interest on the amount of all holdbacks from the date that such holdbacks reach a figure of Can. $250,000 to the date of payment calculated at the rate of six per cent (6%) per annum;”
It is admitted that commencing in or about the month of March, 1968, this appellant paid to respondent only that portion of each invoice adequate to meet respondent’s payroll. The balance of each invoice so unpaid was in fact held back by the appellant and comes within the term “holdbacks” found in said clause 4.2L. It follows that the respondent is entitled to interest at six per cent per annum on all such moneys payable under the contract.
I am further of the opinion that the parties having by the contract specified a rate of interest that that is the proper rate to be allowed on all moneys payable to respondent and improperly withheld.
The judgment at trial is varied by substituting six per cent interest in the place of five per cent therein allowed.
With respect, I am not in agreement with this reasoning. The holdbacks to which art. 4.2 refers are the 5 per cent of each progress payment which was to be withheld. In fact no such holdbacks were made, but, as Maguire J.A. points out, commencing about March 1968, until July, when Foundation left the job, P & W Pulpmills advanced money for payrolls only. The balance of the moneys payable, but not paid, are not holdbacks within the contemplation of the contract. I am unable to agree that, because a rate of interest was provided in respect of the 5 per cent holdbacks properly to be withheld, which would be added to those holdbacks when they became payable, that should necessarily be the proper rate to be applied
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in assessing compensation for the refusal to pay to Foundation the amount to which it was entitled under the contract.
This was a cost plus contract, the fee being $300,000 of which $220,000 has been paid. By refusing to pay to Foundation the costs of the project which it had incurred, P & W Pulpmills was, in essence, compelling Foundation to finance part of the cost of the project at its own expense. On the other hand, P & W Pulpmills has had the advantage of the use of funds which were properly payable to Foundation. I agree with counsel for Foundation in respect of his submission that the proper compensation which it should receive is a rate of interest equivalent to its own borrowing rates.
An exhibit was filed, by consent, showing the bank interest rates payable by Foundation. This was in the form of a letter from the Canadian Imperial Bank of Commerce to Mr. Finlayson of Foundation, showing the bank’s minimum lending rates, from September 3, 1968, to November 1, 1971, and advising that loans from the bank to Foundation had been advanced at the mimimum rate plus ¾ of 1 per cent. Presumably like information could be provided for the period subsequent to that time. In fact, an appendix to Foundation’s factum sets out the average rates down to March 31, 1975.
In summary, on the particular facts of this case, in my opinion Foundation has established the improper withholding by P & W Pulpmills of payment of a just debt, and the circumstances make it fair and equitable that Foundation be compensated by the payment of interest. In my opinion the rates of interest applicable should be equivalent to the bank borrowing rates of Foundation over the period from November 1, 1968, to the date of the judgment of this Court. Such interest should be payable for that period. The power of the Court to make this direction is to be found in s. 52 of the Supreme Court Act, R.S.C. 1970, c. S-19, as amended, which provides:
Unless otherwise ordered by the Court, a judgment of the Court bears interest at the rate and from the date
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applicable to the judgment in the same matter of the court of original jurisdiction or at the rate and from the date that would have been applicable to that judgment if it had included a money award.
In view of the above direction, interest upon the judgment in this case should accrue as from the date of the judgment of this Court.
I would allow the cross-appeal with respect to the claim for interest and would vary the judgment of the Court of Appeal with respect to that item. Foundation should be entitled to the costs of the cross-appeal.
Cross-appeal allowed in part with costs.
Solicitors for the defendants, appellants: Mac-Pherson, Leslie & Tyerman, Regina.
Solicitors for the plaintiff respondent: Balfour, MacLeod, Moss, Laschuk, Kyle, Vancise & Cameron, Regina.
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