Date: 20000418
Docket: A-647-98
CORAM : DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
LES ENTREPRISES A.B. RIMOUSKI INC.
AND ALDÈGE BANVILLE
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
Hearing held at Montréal, Quebec, on Wednesday, April 12, 2000
Judgment delivered at Ottawa, Ontario, on Tuesday April 18, 2000
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
DÉCARY J.A.
Date: 20000418
Docket: A-647-98
CORAM : DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
LES ENTREPRISES A.B. RIMOUSKI INC.
AND ALDÈGE BANVILLE
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1] This is an appeal from a decision of Mr. Justice Denault of the Trial Division dismissing Mr. Banville's action as assignee of the rights of Les Entreprises A.B. Rimouski Inc. (A.B. Rimouski) in an action for breach of contract against the respondent.
[2] In his judgment dated October 11, 1996, Denault J. dismissed the action brought by Mr. Banville in his personal capacity and as assignee of the rights of A.B. Rimouski. In a judgment dated June 26, 1998, this Court upheld the conclusions of Denault J. regarding Mr. Banville's personal action and allowed his appeal in his capacity as assignee of the rights of A.B. Rimouski. The Court then referred the matter back to Denault J. for reconsideration of the merits of A.B. Rimouski's contractual remedy.
[3] On October 9, 1998, Denault J. dismissed Mr. Banville's action in his capacity as assignee on the grounds that A.B. Rimouski had failed to complete the work specified in its contract with the respondent. Denault J. was of the view that the respondent was justified under the circumstances in terminating the contract and in turning to the surety to have the work completed. It is that decision that is before us on appeal.
[4] First, Mr. Banville maintains that Denault J. should have reopened the hearing after this Court referred the matter back to him. He also maintains that Denault J. should have reconsidered his personal action. These arguments are based on a misunderstanding of the Court of Appeal's judgment. It suffices to say that the judgment only set aside the part of Denault J.'s decision that dealt with Mr. Banville's rights in his capacity as assignee and that the matter was remitted to the Trial Judge for reconsideration. Moreover, the judgment of this Court authorized the judge to reopen the hearing if he thought it appropriate to do so. Therefore, Denault J. only had to dispose of Mr. Banville's action in his capacity as applicant-assignee and had no obligation to hear from the witnesses again.
[5] In a lengthy argument, Mr. Banville also disagrees with the findings of fact made by the Trial Judge. In essence, he maintains that the contract between A.B. Rimouski and the Crown was unreasonable and impossible to perform in accordance with the plans and specifications prepared by the respondent and that, under the circumstances, the appellant cannot be blamed for failing to carry out the work as specified in the contract.
[6] On this issue, the Trial Judge said the following:
[7] ... after a thorough examination of the evidence, I consider that in the case at bar the defendant was justified in putting Entreprises A.B.in default to fulfill the contract for the demolition of the wharf at Cap-Chat in accordance with the plans and specifications and to notify the surety company to have the work finished.
[8] The plans and specifications did in fact adequately describe both the boundaries of the demolition of the wharf, which were established from the original plan of the wharf and the plan of the wharf as it was built, and the boundaries for excavation both for the removal of the wharf itself and for the removal of the debris nearby.
[9] The evidence further indicated that 1) in its bid, Entreprises A.B. underestimated the quantity of material to be excavated; 2) it did not have the necessary equipment to dig to the desired depth-at the beginning of the work it was using only a John Deere 892 D-LC excavator; and 3) the company did not remedy the shortcomings identified during the performance of the contract, despite being duly notified to do so.
[10] Moreover, the dive reports, underwater photographs, and video filmed after Enterprises A.B. left the job site, as well as the large amount of debris removed from the sea floor by the firm Verreault Navigation, which was hired by the surety to complete the contract, amply demonstrate that Enterprises A.B. did not perform all of the work specified in the contract. Under the circumstances, the defendant was justified in withholding the balance under the contract, namely $218,122.25 and turning to the surety to have the work completed.
[7] Mr. Banville takes issue with the Trial Judge's understanding of the facts as well as the conclusions he drew from them. It is settled law that findings of fact made by a Trial Judge cannot be overturned in the absence of palpable and overriding error. Although Mr. Banville has established that he had a different view of the evidence presented at trial, he was unable to establish that the Trial Judge made palpable errors in interpreting the evidence.
[8] The appeal should be dismissed. Under the circumstances, I would not award costs.
Marc Noël
J.A.
"I concur.
Robert Décary J.A."
"I concur.
Gilles Létourneau J.A."
Certified true translation
Mary Jo Egan, LLB
Date: 20000418
Docket: A-647-98
Ottawa, Ontario, Tuesday, April 18, 2000
CORAM : DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
LES ENTREPRISES A.B. RIMOUSKI INC.
AND ALDÈGE BANVILLE
Appellants
- and -
HER MAJESTY THE QUEEN
Respondent
JUDGMENT
The appeal is dismissed without costs.
Robert Décary
J.A.
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-647-98
STYLE OF CAUSE:
LES ENTREPRISES A.B. RIMOUSKI INC.
AND ALDÈGE BANVILLE
Appellants
-and-
HER MAJESTY THE QUEEN
Respondent
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: APRIL 12, 2000
REASONS FOR JUDGMENT BY NOEL J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
DÉCARY J.A.
DATED: APRIL 18, 2000
APPEARANCES:
Aldège Banville FOR HIMSELF
Stéphane Lilkoff FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT