Date: 20000204
Docket: A-27-98
OTTAWA, ONTARIO, FRIDAY, FEBRUARY 4, 2000
NOËL J.A.
CHEVALIER D.J.A.
BETWEEN:
TRANSPORT NAVIMEX CANADA INC.,
Appellant,
AND:
HER MAJESTY THE QUEEN,
Respondent.
JUDGMENT
The appeal is allowed in part with costs in both courts, including the costs of expert testimony. The respondent is ordered to pay the appellant the sum of $75,000 for chartering costs and the sum of $55,520.51 for loss of profits. The respondent is further ordered to pay interest on these two amounts at the legal rate since June 25, 1985 and as of that date the indemnity provided for in art. 1619 of the Civil Code of Quebec.
Certified true translation
Bernard Olivier, LL. B.
Date: 20000204
Docket: A-27-98
NOËL J.A.
CHEVALIER D.J.A.
BETWEEN:
TRANSPORT NAVIMEX CANADA INC.,
Appellant,
AND:
HER MAJESTY THE QUEEN,
Respondent.
Hearing held at Ottawa, Ontario, Tuesday, November 30, 1999
Judgment rendered at Ottawa, Ontario, Friday, February 4, 2000
REASONS FOR JUDGMENT BY: CHEVALIER D.J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NOËL J.A.
Date: 20000204
Docket: A-27-98
NOËL J.A.
CHEVALIER D.J.A.
BETWEEN:
TRANSPORT NAVIMEX CANADA INC.,
Appellant,
AND:
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
CHEVALIER D.J.A.
[1] This case has to do with contractual relations between the appellant (Navimex) and the respondent, the latter acting here through a body known as "Transport Canada". The appellant is appealing from a judgment of the Federal Court Trial Division which dismissed without costs an action for damages resulting from the respondent"s decision to unilaterally terminate an agreement concluded with the appellant.
Facts and proceedings
[2] In March 1985, Transport Canada invited certain businesses to submit a bid for the transportation of goods to Thule in Greenland. To be accepted the tender had, inter alia and as essential conditions, to stipulate the price per metric ton that would be required and identify the vessel that would be used, which should be capable of containing all the cargo the respondent decided to allocate to it.
[3] To allow the bidders to meet the latter requirement, the respondent stated that the anticipated cargo would be 451.45 metric tons. However, clause 4 of the call for tenders provided as follows:
| Initial anticipated kind and tonnage listing attached to this tender is prepared from information available at the time of calling tenders and the successful tenderer will be provided with the final tonnage listing no later than June 14th, 1985, subject to a further adjustment of up to 10% less than the final tonnage listing, prior to date of sailing. |
[4] Navimex is a corporation headed by Sylvio Thibeault, who is its sole shareholder. On April 17, 1985, it submitted its bid. In the bid it indicated that the price required would be $278 a metric ton and that the vessel chosen would be the GLENCOE, owned by F. Frampton & Co. Ltd. of Saint John"s, Newfoundland.
[5] On May 3, 1985, after ensuring that the vessel in question met this requirement, Transport Canada notified the appellant that it accepted the latter"s bid.
[6] On the 8th of that month the respondent informed it that the anticipated cargo would now be increased to 751.81 metric tons, which represented an increase of 210.36 tons. On May 16, 1985 it stated that the aforesaid tonnage represented a volume of 83,188 cubic feet and that, having regard to a 15% loss of space from "broken stowage", the space needed to receive the cargo would be 95,666 cubic feet or 2,709 cubic metres.
[7] After further verification Transport Canada notified the appellant on May 27, 1985 that, in its opinion, the usable space on board the GLENCOE was insufficient to receive all the anticipated cargo and asked it to indicate another vessel to transport the cargo. On the same day, Navimex replied that in its opinion the GLENCOE had sufficient capacity to carry out the assignment as altered.
[8] There then followed meetings and discussions between the parties which proved to be futile. Finally, on June 21, 1985 Transport Canada notified Navimex that it was terminating the contract.
[9] On June 19, 1985 the appellant signed and caused to be served an action for damages in the amount of $230,000. In it the appellant claimed the cost of chartering the GLENCOE, the lost profit which it claimed to have suffered and the cost of stowage, administration and travel for obtaining and preparing the contract which it claimed to have incurred.
[10] On November 1, 1994 it amended its statement of claim. It alleged that as it had learned that the tonnage actually carried by another charterer was 861.95 metric tons instead of 751.81, it sustained a further loss of profit due to the fact that if it had been made aware of this new alteration it could have chartered another vessel, the TERRA NORDICA, capable of carrying the goods to Thule and bringing back the goods of another customer to Montréal. Its new claim now amounted to $322,254.78.
[11] On January 13, 1997 it re-amended its statement of claim to correct a clerical error.
[12] The judgment a quo was rendered on December 22, 1997. It concluded (1) that the GLENCOE did not have the capacity to transport either the anticipated number of metric tons (751.81) or the number of cubic feet; (2) that on the other hand, Transport Canada had unlawfully and without justification terminated its contract; and (3) however, there was no valid evidence to show that Navimex sustained any damage which could be the basis for a claim.
[13] Navimex appealed. It naturally indicated that it was satisfied with the finding in the judgment which held the respondent liable, but it also asked for review of the finding that the GLENCOE was not capable of carrying the aforesaid 751.81 metric tons.
[14] The respondent, for its part, also appealed the part of the decision holding it liable. However, as the result of a motion to dismiss by Navimex which was allowed by this Court on August 31, 1998, the respondent"s cross-appeal was dismissed.
Points at issue
[15] In arriving at his decision the trial judge raised and responded to three questions which he stated as follows:
| 1. Could the ship GLENCOE receive and transport to Thule a cargo of 751.81 metric tons with a volume of 83,188 cubic feet? |
| 2. If the answer to the first question is no, could the defendant terminate the contract entered into on May 3, 1985? |
| 3. If the answer to the first question is yes, or if the answer to the second question is no, what damages did the plaintiff suffer? |
[16] Only questions 1 and 3 are before this Court.
Analysis
1. Question one: the GLENCOE"s capacity to transport 751.81 metric tons
[17] The appellant challenged the trial judgment"s finding on this point. The significance of the discussion of this aspect of the case lies in the fact that, if we held that the GLENCOE was capable of transporting the 751.81 metric tons which the respondent wished to assign to it, the appellant would be entitled to higher damages since the loss of profit would then be calculated on the basis of this tonnage, not the 541.45 metric tons initially anticipated.
[18] Application of the burden of proof rule raises no problems here. As the respondent chose to give reasons for its unilateral decision to terminate its contractual relations by alleging that the vessel suggested by Navimex and accepted by it could not handle the task, it had a duty to prove this to the satisfaction of the trial judge.
[19] As this is purely a question of fact and, in the particular context of this discussion, determining the vessel"s ability to perform the task was a matter for expert testimony, the judge in explaining his finding had to decide which of the expert opinions he chose to accept.
[20] Finally, the function of a court such as our own is governed by the binding rule stated by the Supreme Court of Canada, inter alia in Schwartz v. Canada1 and R. v. Van der Peet,2 which held that an appellate court should demonstrate great deference toward a trial judge"s finding of fact and that such deference also applied in cases where assessment of the credibility of witnesses involved expert evidence.
[21] It is the latter specific category which is at issue here. Both parties submitted expert testimony, each consisting of two reports.
[22] That filed by the appellant concluded, finally, that:3
| in view of the height to which the cargo would have to be loaded on the deck of the ship, it would have been impossible to stow it safely . . . loading in this manner was dangerous both to the ship and to the cargo. |
[23] On the contrary, the two reports submitted by the respondent stated that:4
| given the very satisfactory stability (GM), which is well above the recommended minimum, compact stowage in the holds and on-deck stowage of a reasonable height and securely attached, the ship could easily have made the trip in complete safety. |
[24] In his analysis of the reports in question the trial judge compared the basis for calculation on which they rested and their differing conclusions. He also noted that certain points of analysis contained in one report were absent from the other. This painstaking and detailed analysis of the evidence persuaded him that the respondent"s evidence should be preferred.
[25] In my opinion, the trial judge, in performing his function as he did, and taking into account the excellent position he was in to assess the credibility of the testimony heard and to draw the legal consequences therefrom, in so doing made no error that was "palpable and overriding" (Schwartz ) or "specific and identifiable" (Daigneault , cited in Schwartz) and which could justify this Court in intervening and varying his decision.
3. Question three: Damage sustained by appellant
[26] The appellant claimed three types of damages, namely:
| (1) reimbursement of the cost of chartering the GLENCOE ($75,000); |
| (2) reimbursement of expenses preparatory to stowing, administration and travel expenses for the preliminary obtaining and performance of the contract (total: $25,000); and |
| (3) loss of the profit it could have made in return for performance of the contract, namely the transportation of 860.95 metric tons from Montréal to Thule ($125,000) and the additional loss of profit which would have been generated by possible transportation of additional goods to Thule and from Thule back to Montréal ($87,321). |
[27] The trial judge concluded that these claims should be dismissed in their entirety, on the general ground that the appellant had not met the burden of establishing by satisfactory evidence the existence or quantum of each item.
[28] The following is an analysis of the case and the reasons for judgment as well as the conclusions that should be drawn from them.
(A) Claim for reimbursement of cost of chartering GLENCOE
[29] The trial judge wrote:5
| . . . the plaintiff is not entitled to the $75,000.00 claimed. First, the plaintiff was unable to show that it had chartered the ship GLENCOE, and second, it has not satisfied me that it made payments in performance of its obligations under the charter contract. |
[30] He had the following evidence before him:
| ". a document entitled "Charter-party Agreement"; |
| ". the testimony of Sylvio Thibeault, Navimex"s president and sole shareholder; |
| ". the text of a judgment by a judge of the Federal Court Trial Division homologating an arbitral award in a case involving the cost of chartering the GLENCOE; and |
| ". evidence of certain payments made in performance of the Charter-party Agreement. |
[31] The trial judge dismissed the "Charter-party Agreement" on the ground that it related exclusively to an agreement between the owner of the GLENCOE and a corporation known as Navigation Harvey & Frères Inc. ("Harvey"); it was not dated; finally, the testimony of Sylvio Thibeault on his contention that he signed as representative of Navimex, and as to the date of that signature, was ambiguous.
[32] On the judgment regarding the arbitral award, the judge noted that it related to a claim against Harvey and Mr. Thibeault in which Capt. Frampton, as owner, claimed from each of them the cost of chartering the ship for 120 days" possible use and the judge hearing the case concluded that Mr. Thibeault was responsible for the payment personally, which according to the trial judge in the case at bar confirmed his conclusion that the appellant was not involved in the charter-party in question.
[33] On the payment which Mr. Thibeault maintained he made on behalf of Navimex, the trial judge also dismissed this claim as he felt that the testimony was "somewhat confused", "did not impress [him]" and was not supported by "any cheques, correspondence or invoices".6
[34] Finally, he felt the appellant should have called as a witness Joachim Harvey (who he said was a key participant). In this regard, he wrote:7
| I can only conclude that the plaintiff did not call him because his testimony would not have been favourable to him. Accordingly, in my view, the plaintiff did not charter the ship GLENCOE and had no rights in that ship. |
[35] With respect, I cannot agree with the trial judge"s conclusion.
[36] To begin with, he seems to me to have wrongly imposed on the appellant a burden which it did not have to bear, namely the duty of proving the existence of a contractual undertaking to the owner of the GLENCOE, since in my opinion this fact was not questioned either in the facts or the proceedings or by the respondent"s approach at trial.
[37] Firstly, reading the allegations of the defence it can be seen that the challenge in the action was not to the existence of a charter-party between the owner of GLENCOE and Navimex, which was admitted and accepted by the respondent, but to the capacity of the chartered vessel to perform the function it was to be given.
[38] Further, if one looks at the minutes of a meeting held at the Grand Hotel in Montréal on May 31, 1985 (Exhibit P-15), at which the subject for discussion was the possibility of the vessel carrying 751.81 metric tons, it will be seen that the meeting was attended inter alia by Capt. M. Frampton, owner of the GLENCOE, and Capt. J. Harvey of Navigation Harvey & Frères Inc. It is also indicated that Mr. Frampton tried to persuade the respondent"s representatives that transport by this means in safety was possible and that Mr. Harvey, for his part, submitted a telex authorizing him to speak on the point on behalf of Navimex . In my opinion, the presence, discussion and participation of the owner of the vessel and of the person interposed and authorized by the appellant at that meeting are a clear indication that at that time, prior to the date on which the respondent terminated the agreement, contractual relations regarding the chartering of the vessel in question existed between the owner of the GLENCOE and Navimex.
[39] Further, for the respondent"s approach at the outset of the trial hearing it will be useful to cite this passage, where a discussion occurred between counsel while Mr. Thibeault was testifying, as it clarifies the appellant"s undertaking regarding the GLENCOE and the acceptance of this fact by the respondent. Attempting to explain why the GLENCOE was selected, André Jolicoeur said the following (transcript, vol. 1, page 30):
| The choice by the bidder from the available ships, the right size to do that. Even if there was a ship available to transport 1,102 metric tons instead of 551, it would have been unreasonable to reserve it and bid accordingly, because at that time it could not have " as the contract required it to do this on one ship, designated in the bid by form 14 " it had to choose, naturally, the most rational or reasonable ship, in terms of the market for doing such transportation. So, how he arrived at choosing the GLENCOE is relevant to the matter, it depends on those facts. |
(My emphasis)
[40] To this Sylvie Gadouri, counsel for the respondent, replied (at 31):
| Your Honour, on the choice of the GLENCOE and the fact that at the time of the bid in compliance with the requirements of the bid is not in question here, the Navimex Inc. bid was accepted. I have some difficulty understanding this entire line of questioning, about which other ships were also available " can be relevant to the case at this stage. |
(My emphasis)
[41] A second error which, in my opinion, and with respect, the trial judge made was not to take into account the specific context in which the agreement with the owner of the GLENCOE originated.
[42] In this connection, Mr. Thibeault"s testimony, the gist of which was not contradicted , clarifies the involvement of Navimex in the charter-party. He related that the transportation of the cargo originally anticipated by Transport Canada required the use of a ship for one month. To obtain the greatest return on this undertaking, it was advisable to charter a ship for a further period, which would have the result of reducing the charge per metric ton. Mr. Thibeault said that accordingly, under the name Navimex Harvey Enr., he created a "joint venture" between Transport Navimex Canada Inc. and Navigation Harvey et Frères Inc. to extend the rental of the ship for 120 days. It is true that the appellant"s corporate name did not appear in the charter-party; however, Mr. Thibeault"s name appeared and, as he had no business dealings with Transport Canada personally , it necessarily follows that he signed as agent of a principal, which could only be the appellant company, since it was the latter which had undertaken to provide the GLENCOE in order to honour its undertaking to the respondent.
[43] The trial judge based his refusal to accept Mr. Thibeault"s account inter alia on the fact that, in the decision on the application to homologate the arbitral award, at which time Mr. Frampton was claiming the total cost of the charter from Harvey and Mr. Thibeault personally, Denault J. accepted and affirmed the part of the award in which the arbitrators concluded that, as he had signed the agreement without further qualification, he was personally responsible for the payment.
[44] In my opinion, this evidence has no place in the present discussion. It should not have been considered, for three reasons. The first is that in the other case the appellant at bar was not one of the parties to the case, either in the arbitration or the application to homologate. Secondly, we do not know what evidence was presented to the arbitrators, and necessarily, what judgment would have been rendered if Navimex had had to submit evidence as a mis-en-cause or intervener. Finally, I consider that in basing his decision on such a ground the trial judge in the case at bar did not consider, as he should have done, the possible and rational application of the rules regarding lifting of the corporate veil, about which the Quebec Court of Appeal has already stated that:8
| the reasons given by the courts [for accepting it] . . . vary enormously from one case to another. |
and that they may become essential when, as in my opinion is the case here, it is important to identify the true debtor and the true creditor.
[45] As regards the trial judge"s statement that Navimex had not persuaded him that it had made payments "in performance of its alleged obligations under the charter contract", the evidence showed that an initial amount of $37,500 was paid on July 26, 1985 and the amount was taken from the bank account of the joint venture Navimex Harvey Enr., where the appellant and Navigation Harvey et Frères Inc. had deposited money for their operations.9 The balance of $37,500 was paid following the arbitration and homologation which I mentioned earlier. A release was given by the owner of the vessel, as appears from an order of the prothonotary of this Court authorizing Mr. Thibeault to retake a letter of security for $130,000 which he had had to file in the Registry of this Court in June 1999.10
[46] For these reasons, I consider that the judgment a quo should have recognized that the sum of $75,000 was paid on account of the chartering of the ship GLENCOE, that it was paid by the charterer and that the charterer was Navimex, represented by its president and sole shareholder, Mr. Thibeault.
(B) Claim for stowage, administration and travel costs
[47] The claim for stowage is $15,000. It was dismissed. According to the testimony of Mr. Thibeault, it was Navigation Harvey & Frères Inc. which had paid the cost of this. The trial judge wrote:11
| Accordingly, given Mr. Thibeault"s testimony, the agreement between the plaintiff and /or Mr. Thibeault and Navigation Harvey & Frères is that if the plaintiff obtains judgment in its favour, it will repay the $15,000.00. If the plaintiff does not obtain a favourable judgment, it will not have to reimburse Navigation Harvey & Frères. |
[48] As the appeal was allowed on the existence of the charter-party, it should logically follow that this item of expenditure became payable. Unfortunately, according to the findings of the trial judge:12
| Mr. Thibeault did not file any invoices or other supporting documents. In addition, the plaintiff did not call Mr. Harvey, who was apparently the person who could have enlightened the Court concerning this portion of the plaintiff"s claim. In my view, there is no real evidence concerning the costs covered by the $15,000.00 claimed by the plaintiff. In other words, the evidence offered by the plaintiff is not sufficient for me to be able to allow him the expense claimed. |
[49] My own reading of the evidence in the record persuades me that the aforesaid conclusion was justified and there is no basis for intervention.
[50] The second claim in this item, for administration and travel costs, makes up a total of
$10,000. The amounts which make it up are set out on p. 40 of the judgment a quo.
[51] The trial judge proceeded to analyse each item. He dismissed them for various reasons, either that they were incurred before the contract was awarded or that in nearly all cases they were not backed up by any bills or other supporting documents. In particular, he noted that the appellant was claiming $3,120, simply mentioning that this was for "time", and that, for "office expenses, telecommunications", it sought reimbursement of $5,500 without providing any details as to the components of such a large amount.
[52] In this Court, the appellant submitted that it was justified in assuming that expenses of the kind mentioned are usual and as their quantum was reasonable it was not necessary to give a detailed breakdown or provide supporting documentation. In my opinion, this reasoning is inadmissible and I consider that the trial judge had no course but to dismiss the claim.
Claim for loss of profit
[53] The loss which the appellant alleged it sustained consisted of:
| ". the net profit it would have made from the transportation of 751.81 metric tons from Montréal to Thule, namely $125,225.78; |
| ". the net profit it might possibly have made from the transportation of another cargo on the return journey from Thule to Montréal, namely $5,000; |
| ". the profit it would have obtained from the transportation from Montréal to Thule of additional goods, namely 111.14 metric tons (that is, the difference between 751.81 and 860.95 tons) if it had been informed in time of the respondent"s decision to increase the final total of the cargo to be transported to 860.95 tons, namely $82,321; and |
| ". the additional profit it could have earned from transporting a cargo equal to 111.14 metric tons back from Thule to Montréal, namely $10,000.13 |
[54] The third claim is based on the theory that if the 860.95 metric tons, the amount of tonnage finally determined for shipment, had been given to the appellant and transported by it to Thule, the appellant would, if it would have been informed of the change, have chartered the TERRA NORDICA or a vessel of equivalent tonnage. However, it is clear from the evidence that the only right conferred on the appellant by the awarding of the contract was that of undertaking the proposed transportation on board the GLENCOE. It had no right to increased transport on another vessel if the proposed cargo increased. In this connection, the trial judge concluded that the appellant"s contractual obligation was limited to providing the ship designated when the contract was awarded, and nothing else:14
| If we were to accept the interpretation proposed by the defendant, that the cargo to be transported by the plaintiff was subject to no limits, the plaintiff would have been obliged to propose a ship with the capacity to accept a tonnage much higher than the anticipated tonnage for the trip. Another alternative for the plaintiff would have been to obtain rights in a number of ships with varying capacities in order to cover all possibilities. Because operating expenses vary from one ship to another, specifically on the basis of capacity, and because the availability of ships is also limited, [the defendant"s] interpretation is neither reasonable nor justified from a commercial standpoint. |
[55] Since the appellant"s contractual obligation was limited to use of the GLENCOE, it cannot argue it was entitled to loss profits calculated other than in relation to that ship.
[56] The second claim appears at p. 363 of the appeal book, under the heading [TRANSLATION] "estimated return". It is based on the statement by Mr. Thibeault that he would have been given goods for the return journey from Thule. The trial judge concluded that these were "vague suppositions which are not supported in any way by the evidence".15 I concur entirely in this conclusion. During his testimony, Mr. Thibeault constantly spoke of finding other customers for the return voyage from Thule to Montréal.16 In his argument in this Court, counsel for the appellant made much of the fact that in the maritime transportation business, especially to Thule, everyone is aware that there are usually goods to be brought back to Montréal. Such a statement clearly cannot replace evidence of any kind establishing that goods were to be transported on the return journey for payment in the case at bar.
[57] The judgment a quo disposes of the first claim as follows:
| Since the plaintiff has not satisfied me that it had chartered the GLENCOE, it cannot, in my view, have incurred any loss of profits. |
As I consider that the GLENCOE was in fact chartered by the appellant, the latter is entitled to the loss of profits caused by the unilateral breach of the contract.17
[58] In this connection, the appellant argued that the gross profit from the contract should be calculated on the basis of transportation to Thule of a cargo of 751.81 metric tons at the rate proposed in the bid following the call for tenders.18 The trial judge found that tonnage of this size was clearly beyond the carrying capacity of the GLENCOE and his decision is not questioned on this point. It therefore follows that the appellant has no right to claim the part of the profit which would have been generated by transporting anything over the carrying capacity of the GLENCOE.
[59] On the other hand, the appellant is entitled to calculate its damages in accordance with the carrying capacity of the GLENCOE. The only evidence that provides any guidance in this regard is the expert opinions regarding the capacity of the GLENCOE to carry the 751.81 metric tons which the respondent wished to send by it and a careful reading of the expert opinion of Capt. Parfett, which was accepted by the trial judge, indicates that the initial tonnage of 541.45 tons came close to the carrying capacity of the GLENCOE. At the same time, in finding that the increased tonnage imposed by the respondent was unreasonable, the trial judge admitted based on earlier experience with transportation to this destination that the final tonnage could be 10% over the anticipated tonnage and that that percentage could be included in calculating the loss of profits.19 Since this 10% variation is an assumption that was known to and accepted by the respondent and which did not question the carrying capacity of the GLENCOE, the latter should be set at 595.59 metric tons, that is the initial tonnage (541.45) plus 10% (54.14).
[60] The bid submitted by the appellant and accepted by the respondent authorized the appellant to consider a price of $278.00 per "chargeable" ton. The number of "chargeable" tons was to be determined based on the factors of weight and volume, depending on the factor that secured the best income.20 Using this rule as it was applied by the appellant for a cargo of 751.81 metric tons, and reducing it by the rule of three to take into account a cargo of 541.45 metric tons, the appellant could anticipate carrying 715.30 "chargeable" tons.21 Amending this result to take into account the 54.14 additional metric tons,22 we get 786.82 "chargeable" tons. The appellant could thus expect to generate a gross profit of $218,735.96 from carrying the goods which the respondent had undertaken to give it (786.82 "chargeable" tons x $278). According to the appellant"s own figures, the expenses that would have been incurred in producing this gross income amounted to $163,215.45.23 Deducting this amount from the maximum gross amount which the respondent was required to pay under the terms of the bid, the loss of profits amounts to $55,520.51 ($218,735.96 - $163,215.45).
[61] For these reasons, I consider that the appeal should be allowed in part with costs in both courts, including the costs of expert testimony, and that judgment should be rendered awarding the appellant the sum of $75,000 for chartering costs and the sum of $55,520.51 for loss of profits, such amounts to bear interest at the legal rate from June 25, 1985, to which should be added as of that date the indemnity provided for in art. 1619 of the Civil Code of Quebec.
| |
François Chevalier
D.J.A.
|
I concur.
Gilles Létourneau J.A.
I concur.
Marc Noël J.A.
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: TRANSPORT NAVIMEX CANADA INC. v. THE QUEEN |
| DATE OF HEARING: November 30, 1999 |
| REASONS FOR JUDGMENT OF THE COURT BY: Chevalier D.J.A. |
| CONCURRED IN BY: Létourneau J.A. |
APPEARANCES:
| André Joli-Coeur FOR THE APPELLANT |
Cöme Boucher
| Jean Lavigne FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Joli-Coeur, Lacasse, FOR THE APPLICANT |
Lemieux, Simard, St-Pierre
Sillery, Quebec
| Morris Rosenberg FOR THE RESPONDENT |
Deputy Attorney General of Canada
Ottawa, Ontario
__________________
1 [1996] 1 S.C.R. 254, at 278 to 289.
2 [1996] 1 S.C.R. 507, at 564 to 567.
3 Appeal book, page 13, para. 25.
4 Appeal book, page 19, para. 30.
5 Appeal book, page 42.
6 Appeal book, page 42.
7 Appeal book, page 40.
8 Houle v. B.C.N., [1987] R.J.Q. 1518, at 1523.
9 Appeal book, vol. II, transcript, pp. 258 to 263.
10 Appeal book, vol. III, pp. 550 and 551.
11 Appeal book, page 43.
12 Appeal book, page 43.
13 All these figures appear at p. 56 of the appeal book (it should be noted that at the hearing of the appeal the figure of $19,053.21 indicated therein was amended to read $17,321).
14 Appeal book, page 30.
15 Appeal book, p. 47.
16 Transcript, pp. 249 and 250.
17 M.J.B. Enterprises Ltd. v. Construction de Défense (1951) Ltée, [1999] 1 S.C.R. 619.
18 Appeal book, p. 283.
19 Appeal book, p. 46.
20 The weight/volume conversion factor was 2.5 cubic metres per ton weight: clause 9 of the bid, appeal book, p. 283.
21 Appendix A of the respondent"s arguments following the directive of December 23, 1999.
22 Again using the rule of three.
23 Appeal book, p. 363.
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