Judgment of the Court
The judgment of the Court was delivered by
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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
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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
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2. 25 cents per ton to cover general costs for ballasting apart from lifting $51,527.77
Footnotes
- [1] [1960] S.C.R. 361.
- [2] [1912] A.C. 673.
- [3] [1911] 2 K.B. 786.
- [4] (1913), 30 O.L.R. 44.