Date: 19980331
Docket: A-674-96
CORAM: DENAULT, J.A.
LÉTOURNEAU, J.A.
CHEVALIER, D.J.A.
BETWEEN:
MURRAY MACKAY
Appellant
and
SCOTT PACKING AND WAREHOUSING CO. (CANADA) LTD.
Respondent
Heard at Montreal, Quebec, Tuesday 31st day of March 1998.
Judgment delivered at Montreal, Quebec, Tuesday 31st day of March 1998.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
Date: 19980331
Docket: A-674-96
CORAM: DENAULT J.A.
LÉTOURNEAU J.A.
CHEVALIER D.J.A.
BETWEEN:
MURRAY MacKAY
Appellant
and
SCOTT PACKING & WAREHOUSING CO. (CANADA) LTD.
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] We are all of view that this appeal should be dismissed with costs.
[2] It is clear that, in adjudicating on the lawsuit for damages, the Trial judge found in favour of the plaintiff who is the appellant before us, but that the respondent was entitled to rely upon the limitation of liability clause in the contract and that the damages were to be assessed in accordance with the terms of that clause. It is also clear that this Court confirmed the decision of the Trial judge when it dismissed the appellant's appeal on December 22, 1995 and ordered that the matter be returned to the Trial judge for a determination of the quantum of damages under the limitation of liability clause which had not been done yet by the Trial judge. This order of the Court of Appeal is in itself more than sufficient authority for the Trial judge to take, as he did, the appropriate and necessary steps to ensure that, in the interest of justice, a final judgment as to the quantum of damages will be issued as imposed upon him by this Court.
[3] This whole saga which started in 1989 has lasted long enough. Ideally, the issue of damages should have been dealt with at the same time as the issue of liability by the Trial judge as this Court said in its previous decision of December 1995, but it was not and we now have to make the best out of the situation. The limitation liability clause is linked to the cubic foot of the cubic capacity of the items lost or damaged. Although such items appear to have been identified, there is on the record no evidence in relation to each one of them as to their specific cubic size.
[4] On the other hand, the evidence reveals that the appellant's goods were put in a twenty-foot container and that there were some left-overs which were later loaded in another container with the items of nine other individuals. The cubic capacity of these containers, bearing in mind that in the case of the second container the Trial judge would have to assess the extent of the space occupied by the appellant, would certainly set the outer limit of the respondent's liability under the clause. The record also reveals that not all the items, however, were lost or damaged. The Trial judge would then have to somewhat arbitrarily determine the size of each item to establish the overall cubic capacity in litigation under the limitation liability clause and we can expect almost for sure a third appeal, this time on the quantum of damages.
[5] We do not think that, in the peculiar circumstances of this case, it is in the interest of justice to leave the Trial judge to struggle with the existing record, especially as he had left the matter open for further guidance should the parties be unable to agree on the quantum of damages. We believe that he is entitled to take the steps that are necessary to factually and satisfactorily determine the quantum of the damages under the limitation liability clause.
Gilles Létourneau
J.A.
FEDERAL COURT OF APPEAL
Date: 19980331
Docket: A-674-96
BETWEEN:
MURRAY MACKAY
Appellant
and
SCOTT PACKING AND
WAREHOUSING CO. (CANADA) LTD.
Respondent
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NUMBER: A-674-96
Appellant
AND
| SCOTT PACKING AND WAREHOUSING CO. (CANADA) LTD. |
Respondent
| PLACE OF HEARING: Montreal (Quebec) |
DATE OF HEARING: March 31, 1998
REASONS FOR JUDGMENT OF THE COURT (DENAULT J.A., LÉTOURNEAU, J.A., AND CHEVALIER D.J.A.)
RENDERED FROM THE BENCH BY: LÉTOURNEAU J.A.
DATED: March 31, 1998
APPEARANCES:
| Me Mireille Tabib for the Appellant |
Me Hugh Christie
| Me Peter E. Manderville for the Respondent |
SOLICITORS OF RECORD:
STIKEMAN, ELLIOTT
| Montreal, (Quebec) for the Appellant |
SMITH & LYONS
| Toronto, (Ontario) for the Respondent |
Email this Content