606346 Alberta Ltd. et al. v. Abugov et al., (2000) 262 A.R. 258 (QB)

• Judge: Nation, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 25, 2000
• Citations: (2000), 262 A.R. 258 (QB)

606346 Alta. Ltd. v. Abugov (2000), 262 A.R. 258 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. MR.053

606346 Alberta Ltd. and the Metropolitan Centre Inc. and the said the Metropolitan Centre Inc. carrying on business under the firm name and style of the Metropolitan Centre and the said the Metropolitan Centre (plaintiffs) v. Bruce D. Abugov, Zbysek Frank Kaspar, Jack Abugov, Bruce Abugov Design Ltd., Zbysek Frank Kaspar Architect Ltd. and the said Bruce D. Abugov, Zbysek Frank Kaspar, Jack Abugov, Bruce Abugov Design Ltd., and Zbysek Frank Kaspar (defendants)

(Action No. 9501-07651)

Indexed As: 606346 Alberta Ltd. et al. v. Abugov et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Nation, J.

February 25, 2000.

Summary:

A company built a private conference facility. The company sued an architectural and engineering firm for damages resulting from overrun on the budget, delays and acoustical and capacity problems. At issue, inter alia, was whether a cost condition, being that the architectural and engineering firm knew that the company had a specific amount to spend, was implied into the parties' contract.

The Alberta Court of Queen's Bench dismissed the company's action.

Building Contracts - Topic 5084

Architects and engineers - Employment contract - Implied terms - General - A company built a private conference facility - The company sued an architectural and engineering firm for damages resulting from budget overruns, delays and acoustical and capacity problems - The company had initially advised the firm that it only wanted to spend $450,000 - At issue, inter alia, was whether the cost condition was implied into the parties' contract - The Alberta Court of Queen's Bench refused to imply the cost condition into the contract -The professional was not asked to give a cost estimate, but had expressed concern about the budget and the need to keep close tabs on the project - The firm was hired to only provide the architectural and engineering drawings and specifications for a fast tracked project without the anticipation that the firm would be the prime consultant - See paragraphs 36 to 89.

Cases Noticed:

Attorney-General v. Hitchcock, [1847] 1 Ex. 91 (Ex. Ct.), refd to. [para. 10].

Shaw (Gordon) Concrete Products Ltd. v. Design Collaborative Ltd. (1985), 67 N.S.R.(2d) 299; 155 A.P.R. 299 (T.D.), refd to. [para. 38].

Saxby & Pokorny v. Fowler (1977), 2 C.C.L.T. 195 (Alta. C.A.), consd. [para. 40].

Salo v. Komadowski and Komco Ltd. (1981), 8 Man.R.(2d) 134 (Co. Ct.), ref to. [para. 40].

Mills v. Small, [1908] O.W.R. 1041 (C.A.), refd to. [para. 40].

Sharp et al. v. Furber, [1939] 2 W.W.R. 242 (B.C.S.C.), refd to. [para. 40].

Pratt v. St. Albert Protestant Separate School District No. 6, [1969] W.W.R. 62 (Alta. S.C.), refd to. [para. 40].

Vancouver Community College v. Phillips Barrat (1988), 29 C.L.R. 268 (B.C.S.C.), refd to. [para. 46].

Newfoundland Capital Corp., Steele & Steele v. Mettam and Mettam Wright Associates Ltd. (1986), 76 N.S.R.(2d) 189; 189 A.P.R. 189 (S.C.), refd to. [para. 47].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 37 C.C.L.T. 117; 42 R.P.R. 161; 31 D.L.R.(4th) 481; 34 B.L.R. 187, refd to. [para. 90].

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12, 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241; [1993] 2 W.W.R. 321, refd to. [para. 90].

Ares v. Venner, [1970] S.C.R. 608; 14 D.L.R.(3d) 4; 73 W.W.R.(N.S.) 347, refd to. [para. 150].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 150].

Authors and Works Noticed:

McLachlin, Beverley, Canadian Law of Architecture and Engineering (1994), c. 9, pp. 101, 107 [para. 48]; 123 [para. 82].

Sweet, Justin, Legal Aspects of Architecture Engineering and the Construction Process (1970), pp. 163, 164 [para. 38].

Counsel:

Tim Platnich and Greta Reiten (Major Caron), for the plaintiffs;

Brian Kapusianyk (Gowlings Strathy Henderson), for the defendants.

This action was heard before Nation, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on February 25, 2000.