J.D. Sterling Co. Ltd. v. A. Janin Co. Ltd.

CARTWRIGHT J.:-This is an appeal from a judgment of the Court of Queen's Bench (Appeal Side)' which, by a majority, allowed an appeal from a judgment of Batshaw J. to the extent of reducing the amount of damages awarded to the appellant from $52,000 to $31,916. Choquette and Badeaux JJ. dissenting would have dismissed the appeal.

In this Court, the appellant asks that the judgment at trial be restored; the respondent asks that the appeal be dismissed and by way of cross-appeal asks that the action be dismissed with costs or, alternatively, that a new trial be ordered to assess the damages, if any, to which the appellant is entitled.

The action arose from the fact that while the parties were engaged in performing contracts with the City of Montreal to build an underground covered collector sewer 1 [1966] Que. Q.B. 85.

R.C.S.

running parallel to a stream known as the "Little Rivibre St. Pierre" the respondent, by the erection of certain culverts in the stream, caused the flooding of the works sCOa aTD being executed by the appellant damaging the works and A. causing the immobilization for some days of the heavy equipment being used by the appellant.

CartwightJ. At the trial the respondent denied liability, but in this - Court only two points were raised, first, the quantum of damages and, second, the submission made by the respondent that if damages had been caused for which the respondent was responsible the right of action for those damages was that of a company known as Miron Company Limited and not of the appellant. This second submission was rejected unanimously in the Courts below and at the conclusion of the argument of counsel for the appellant in this Court, counsel for the respondent was informed that we were all of opinion that it was rightly rejected for the reasons given by Batshaw J. and that he need not deal with it.

The claim for damages was itemized in the Declaration and totalled $110,600. This was slightly amended at the trial and, as amended was as follows:

$30,254.00 (2) Installation et enlivement de barrages temporaires

4,104.00 (3) Construction d'un talus 4tanche et nettoyage et assbchement des tranchies d'excavation ........

6,208.00 (4) Pour immobilisation d'6quipement et retards dans

I'ex6cution des travaux .......................

52,634.00 (5) D6bours6s divers pour travaux sp6ciaux requis ..

5,676.00 (6) Augmentation de frais g6ndraux et perte de b6n6fices ..................................

11,800.00 $110,676.00 After setting out the itemized claim as above the learned trial judge continued:

The interruption of the Plaintiff's work caused by the flood lasted for a period which it was difficult to determine precisely since resumption of the operations could only be effected on a gradual basis. The estimates varied from 7 to 15 days; R. F. Bird, the Executive Vice-President for Sterling, who was its principal witness as to the damages, affirmed that it lasted for about 8 days. To be conservative however, the Plaintiff based its claim on a period of 5.2 days which seems to the Court not to be unwarranted.

This finding was not challenged.

S.O.R.

The learned trial judge disallowed item 6 and in this J.

Court no argument was advanced against his having done The learned trial judge then pointed out that of the remaining amount of $98,876 a sum of $84,812 represented the daily rental value of the equipment claimed on the basis of the calculation explained by the appellant's witness Bird, and the balance of $14,064 represented the total of items 1, 2, 3 and 5 excluding therefrom the portions of those items made up of rental value of equipment. That this is so appears clearly from Exhibit P-14. The amount of damages to be assessed for the claims totalling this $14,064 was fixed by the learned trial judge at $12,000 and no ground has been shewn from disturbing this figure. There remains the item of $84,812 for which the learned trial judge allowed $40,000. As to this item the evidence of the witness Bird supported the claim of $84,812 while that of the respondent's witness Rousseau was to the effect that the amount should be $19,916. The learned trial judge did not accept either of these figures and gave reasons for his refusal to do so. His reasons for not accepting Rousseau's figure were concurred in by Badeaux J. with whom, as already mentioned, Choquette J. agreed.

With respect, I am unable to discern any sufficient reason for reversing the conclusion of the learned trial judge that he should not accept Rousseau's evidence in toto, nor am I able to say from a perusal of the record that his estimate of $40,000 for this item was erroneous. While always hesitant to differ from the judgment of a majority in the Court of Appeal in fixing damages the amount of which is not susceptible of precise arithmetical calculation, it does appear that in the reasons of the majority there was a misapprehension of the basis on which the learned trial judge had proceeded.

As already pointed out, the award of the learned trial judge was made up of two items: (i) $12,000 allowed in respect of a claim of $14,064 (being the total of items 1, 2, 3 and 5 excluding the sum of $32,178 charged in those items for the rental value of equipment) and (ii) $40,000 allowed in respect of a claim of $84,812 (being the total of item 4 and the above sum of $32,178). That this is so is made clear in the reasons of the learned trial judge when, after dealing with the claim for $84,812 and giving his for allowing $40,000 in respect thereof, he says: reasons fralwn$4,0inrsetteefheay:

Having dealt with the $84,812.00, part of Plaintiff's claim of 898,876.00 A. referred to above, there remains the difference of $14,064.00 which represents miscellaneous items of damages other than for rental value of equipment contained in paragraph 29 sub-paragraphs 1, 2, 3 and 5 of the CartwrightJ. declaration. It was conceded that this figure could not be ascertained with mathematical accuracy and represented a rough estimate of the damages involved. In the opinion of the Court this part of the claim could reasonably be assessed at $12,000.00.

Casey J., however, says at the opening of his reasons: This claim was for $110,600.00 divided into six items. The trial judge disallowed No. 6 (811,800.00) and allowed $40,000.00 for No. 4 ($56,400.00 claimed) and $12,000.00 for nos. 1, 2, 3 and 5 (842,400 claimed).

No doubt Rousseau's figure of $19,916 was intended by that witness to represent the amount which in his opinion should have been allowed in respect of the total of $84,812 claimed for rental value of equipment; but I think it probable that Casey J. might not have adopted that figure if he had realized that the appellant's claim in regard to this item, supported as it was by Bird's evidence, was not for $56,400 but for the much larger sum of $84,812. Be that as it may, I have reached the conclusion that the figure arrived at by the learned trial judge and upheld by the reasons of the minority in the Court of Queen's Bench was supported by the evidence and should not have been disturbed.

I would allow the appeal with costs in this Court and in the Court of Queen's Bench (Appeal Side) and restore the judgment of the learned trial judge. I would dismiss the cross-appeal with costs.

Appeal allowed with costs; cross-appeal dismissed with costs.

S.C.R.

[19671