Winnipeg Airports Authority Inc. v. EllisDon Corp.,

• Jurisdiction: Manitoba
• Judge: Scott
• Neutral Citation: 2011 MBCA 51
• Date: 14 April 2011
• Court: Court of Appeal (Manitoba)

Airports Authority v. EllisDon Corp. (2011), 268 Man.R.(2d) 66 (CA);

      520 W.A.C. 66

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. JN.030

Winnipeg Airports Authority Inc. (appellant/applicant) v. EllisDon Corporation (respondent/respondent)

(AI 11-30-07499; 2011 MBCA 51)

Indexed As: Winnipeg Airports Authority Inc. v. EllisDon Corp.

Manitoba Court of Appeal

Scott, C.J.M.

June 16, 2011.

Summary:

A dispute arose between a general contractor and the owner of the property regarding extra costs related to excavation work on the project. The dispute was submitted to arbitration. The arbitrator's award was in favour of the general contractor. The owner appealed under s. 44(2) of the Arbitration Act.

The Manitoba Court of Queen's Bench, in a decision reported at (2010), 259 Man.R.(2d) 229, dismissed the appeal. The owner applied for leave to appeal under s. 48 of the Act.

The Manitoba Court of Appeal, per Scott, C.J.M., dismissed the application.

Arbitration - Topic 8701

Judicial review (incl. appeals) - Practice - Appeals - Leave to appeal or right to appeal - An airport terminal construction site required a temporary excavation that was four metres deep - The contractor intended to slope the excavation at a 45 degree angle without any support system or shoring - Under s. 26.15(1) of the Workplace Safety and Health Regulation, where a worker was required to enter an excavation deeper than three metres, a support system was required unless, inter alia, the walls were sloped at an angle not greater than 45 degrees - Here, due to unexpected conditions, the slope would not stay intact - Additional work was required - The contractor asserted that the owner was responsible for the costs - An arbitrator agreed - The owner's appeal under s. 44(2) of the Arbitration Act to the Court of Queen's Bench was dismissed - The owner sought leave to appeal under s. 48 of the Act - The Manitoba Court of Appeal, per Scott, C.J.M., dismissed the application - While the appeal was on a question of law (statutory interpretation) and there was a reasonable prospect that it would succeed, the application failed on the third arm of the test - The question of law was not of sufficient importance to engage the court - The mere fact that this was an airport terminal project, which might be considered a "public" project, did not move the issue out of the realm of the purely private interests involved - Although there was a great deal of money involved and considerable public curiosity, this was simply a conventional commercial dispute that had already been reviewed by an experienced arbitrator and a judge.

Practice - Topic 8877

Appeals - Leave to appeal - Grounds for refusal to grant leave - [See Arbitration - Topic 8701 ].

Cases Noticed:

Pelchat v. Manitoba Public Insurance Corp. et al., [2006] Man.R.(2d) Uned. 60; 40 C.C.L.I.(4th) 46; 2006 MBCA 90, refd to. [para. 1].

Shier v. Manitoba Public Insurance Corp. et al., [2007] Man.R.(2d) Uned. 40; 51 C.C.L.I.(4th) 169; 2007 MBCA 76, refd to. [para. 1].

Rolling River School Division v. Rolling River Teachers' Association of the Manitoba Teachers' Society et al. (2009), 236 Man.R.(2d) 249; 448 W.A.C. 249; 2009 MBCA 38, refd to. [para. 12].

Dias v. Manitoba Public Insurance Corp., [2005] Man.R.(2d) Uned. 70; 23 C.C.L.I.(4th) 164; 2005 MBCA 60, refd to. [para. 14].

Lejins v. Manitoba Public Insurance Corp., [2003] Man.R.(2d) Uned. 62; 50 C.C.L.I.(3d) 1; 2003 MBCA 95, refd to. [para. 16].

AB Kung Ltd. v. Augusto, [2009] Man.R.(2d) Uned. 34; 2009 MBCA 66, refd to. [para. 17].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 22].

Minister of National Revenue v. Canada Trustco Mortgage Co., [2005] 2 S.C.R. 601; 340 N.R. 1; 2005 SCC 54, refd to. [para. 22].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 24].

Nowegijick v. Minister of National Revenue, [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 24].

Herda v. Manitoba Public Insurance Corp., [2004] Man.R.(2d) Uned. 43; 10 C.C.L.I.(4th) 186; 2004 MBCA 57, refd to. [para. 29].

Mockford v. Manitoba Public Insurance Corp. et al., [2003] Man.R.(2d) Uned. 8; 2003 MBCA 14, refd to. [para. 30].

Wuziuk v. Director of Social Services (1979), 3 Man.R.(2d) 81 (C.A.), refd to. [para. 32].

Director of Employment Standards Division (Man.) v. Shier et al. (2007), 214 Man.R.(2d) 189; 395 W.A.C. 189; 2007 MBCA 63, refd to. [para. 34].

Jeffrys v. Veenstra, [2004] Man.R.(2d) Uned. 11; 2004 MBCA 6, refd to. [para. 38].

Manitoba Housing Authority v. Bertram (2006), 205 Man.R.(2d) 61; 375 W.A.C. 61; 2006 MBCA 49, refd to. [para. 38].

Burrows v. Ontario, [2003] O.J. No. 5858 (Sup. Ct.), leave to appeal granted [2004] O.J. No. 3217 (Div. Ct.), refd to. [para. 41].

Authors and Works Noticed :

Brown, Donald J.M., Civil Appeals (2009) (Looseleaf), vol. 2, c. 4, paras. 4:3231 [para. 39]; 4:3244 [para. 40]; 4:3541 [para. 20]; 4:3551, 4:3552 [para. 43]; 4:8221 [para. 42]; 4:8230 [para. 19].

Counsel:

S.J. Hammel and D.A. Chicoine, for the applicant;

P.D. Rasmussen and J.G. Edmond, for the respondent.

This application was heard in Chambers on April 14, 2011, by Scott, C.J.M., of the Manitoba Court of Appeal, who pronounced the following decision on June 16, 2011.