Albionex (Overseas) Ltd. et al. v. ConAgra Ltd. et al., (2011) 270 Man.R.(2d) 293 (CA)

JudgeScott, C.J.M., Hamilton and Chartier, JJ.A.
CourtCourt of Appeal (Manitoba)
Case DateDecember 14, 2011
JurisdictionManitoba
Citations(2011), 270 Man.R.(2d) 293 (CA);2011 MBCA 95

Albionex Ltd. v. ConAgra Ltd. (2011), 270 Man.R.(2d) 293 (CA);

      524 W.A.C. 293

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. JA.009

Albionex (Overseas) Limited and Pagnan S.p.A. (plaintiffs/respondents) v. The Canadian Wheat Board (defendant/appellant) and ConAgra Limited (defendant/respondent)

(AI 10-30-07365)

Albionex (Overseas) Limited and Pagnan (S.p.A.) (plaintiffs/respondents) v. ConAgra Limited (defendant/appellant) and The Canadian Wheat Board (defendant/respondent)

(AI 10-30-07368; 2011 MBCA 95)

Indexed As: Albionex (Overseas) Ltd. et al. v. ConAgra Ltd. et al.

Manitoba Court of Appeal

Scott, C.J.M., Hamilton and Chartier, JJ.A.

December 14, 2011.

Summary:

ConAgra Ltd., a Canadian wheat exporter, agreed to sell wheat to Pagnan S.p.A., an Italian grain trader. Subsequently, with ConAgra's agreement, Albionex (Overseas) Ltd. was substituted as purchaser, with Pagnan's guarantee. The wheat in question was frost-damaged Red Spring Wheat described by the Canadian Wheat Board (CWB) as being of fair milling quality and quite suitable for milling purposes in an information letter provided to ConAgra which was to be distributed to potential wheat purchasers. The wheat was allegedly of poorer quality than expected by the purchasers. Pagnan and Albionex (the plaintiffs) sued ConAgra for damages for breach of contract and breach of the Sale of Goods Act. The plaintiffs also sued the Canadian Wheat Board for damages for negligent misrepresentation respecting the information it distributed respecting the quality of the wheat and for breach of collateral contract. ConAgra cross-claimed against the CWB, claiming that it too had relied upon the CWB's representations.

The Manitoba Court of Queen's Bench, in a decision reported at 242 Man.R.(2d) 258, held that ConAgra breached the conditions of the purchase agreements when it failed to select the best possible lots and failed to provide "the best quality of Ex. Special Bin Wheat" in breach of its undertakings to do so. The court rejected the plaintiffs' Sale of Goods Act argument. The court found the Canadian Wheat Board liable for negligent misrepresentation, for providing misleading information and type samples. The court held that the circumstances did not give rise to a collateral contract involving the CWB. The court allowed ConAgra's cross-claim against the CWB on the basis of negligent misrepresentation. Judgment was entered against the defendants jointly and severally ($642,392.40), inclusive of interest to the date of judgment, plus costs. Judgment in a similar amount was also entered against the CWB. ConAgra and the CWB then appealed their liability and damages, and the CWB appealed Agro's cross-claim judgment. The plaintiffs also cross-appealed, arguing that damages should be increased.

The Manitoba Court of Appeal dismissed the appeals by ConAgra and the CWB and the cross-appeals by Pagnan and Albionex (the plaintiffs).

Fraud and Misrepresentation - Topic 2508

Misrepresentation - Negligent misrepresentation - The Manitoba Court of Appeal, with respect to the standard of review where negligent misrepresentation was claimed, quoted the Ontario Court of Appeal in Ault v. Canada (2011): "Whether or not a statement or implied statement is a misrepresentation is a finding of fact that depends on the trial judge's assessment of the evidence and inferences drawn from the evidence ... Such a finding should not be disturbed unless there is a palpable and overriding error in the trial judge's assessment of the evidence  ..." - See paragraph 54.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - The Manitoba Court of Appeal set out the five elements that had to be satisfied in a claim of negligent misrepresentation: "(1) there must be a duty of care based on a 'special relationship' between the representor and the representee; (2) the representation in question must be untrue, inaccurate or misleading; (3) the representor must have acted negligently in making said misrepresentation; (4) the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted" - See paragraph 92.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - The Manitoba Court of Appeal noted that the first element that had to be satisfied in a claim of negligent misrepresentation was that there had to be a duty of care based on a "special relationship" between the representor and the representee - Whether there was a duty of care was to be determined through the application of a two-part test: (1) whether a prima facie duty of care exists between the parties (i.e., whether there was a sufficiently close relationship between the plaintiff and defendant such that in the reasonable contemplation of the defendant, carelessness on its part might cause damage to the plaintiff (i.e., proximity or neighbourhood); and (2) whether a duty of care existed (i.e., the court had to consider policy reasons that might negate or reduce the duty which in the case of negligent statement would generally relate to the problem of indeterminate liability) - The court referred to the factors to be addressed in determining whether there was a duty of care based on a special relationship - See paragraphs 92 to 99.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - ConAgra Ltd., a Canadian wheat exporter, agreed to sell wheat to Pagnan, an Italian grain trader - Subsequently, with the parties' agreement, Albionex (Overseas) Ltd. was substituted as purchaser - The wheat in question was frost-damaged Red Spring Wheat described by the Canadian Wheat Board (CWB) as being of fair milling quality and quite suitable for milling purposes in an information letter provided to ConAgra which was to be distributed to potential wheat purchasers - The CWB also provided type samples - The wheat was allegedly of poorer quality than expected and Pagnan and Albionex sued the CWB for negligenct misrepresentation - The trial judge held that the CWB was liable for negligent misrepresentation - The CWB owed a duty of care to the wheat purchasers, Pagnan and Albionex - The information provided by the CWB was misleading - It was reasonably foreseeable by the CWB that its accredited exporters and their clients, as well as any potential direct purchasers, would rely on the representations made in the information letter and Table of Data - The CWB's representations as to fair milling quality were negligent as it had been advised by its own expert that the statements in the letter should be modified - Further the CWB acted negligently by forwarding type samples which were superior to the overall quality of this wheat, and stating that those type samples represented the average quality of the wheat - Pagnon relied on the CWB's representation and sustained damages resulting from that reliance - The Manitoba Court of Appeal refused to disturb the decision - See paragraphs 54 to 130.

Practice - Topic 5402

Judgments and orders - General - Currency of judgments (incl. conversion) - In 1983 ConAgra Ltd., a Canadian wheat exporter, agreed to sell wheat to Pagnan, an Italian grain trader - Subsequently, with the parties' agreement, Albionex (Overseas) Ltd. was substituted as purchaser - The wheat in question was frost-damaged Red Spring Wheat described by the Canadian Wheat Board (CWB) as being of fair milling quality and quite suitable for milling purposes in an information letter provided to ConAgra which was to be distributed to potential wheat purchasers - Pagnan and Albionex (the plaintiffs) sued ConAgra and the CWB on a number of grounds - The trial judge found ConAgra liable to the plaintiffs for breach of contract and the CWB liable to the plaintiffs and ConAgra for negligent misrepresentation - The court held that it was fair and equitable that the judgment date be used as the appropriate conversion date for purposes of calculating the amount of the judgment - The Manitoba Court of Appeal refused to disturb the decision - See paragraphs 141 and 142.

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - [See first Fraud and Misrepresentation - Topic 2508 ].

Cases Noticed:

Ault et al. v. Canada (Attorney General) et al. (2011), 274 O.A.C. 200; 2011 ONCA 147, leave to appeal dismissed 428 N.R. 397, refd to. [para. 54].

Knock v. Dumontier et al. (2006), 208 Man.R.(2d) 121; 383 W.A.C. 121; 2006 MBCA 99, refd to. [para. 56].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 56].

Moore (Geoffrey L.) Realty Inc. v. Manitoba Motor League (2003), 173 Man.R.(2d) 300; 293 W.A.C. 300; 2003 MBCA 71, refd to. [para. 77].

King v. Operating Engineers Training Institute of Manitoba Inc. (2011), 270 Man.R.(2d) 63; 524 W.A.C. 63; 2011 MBCA 80, refd to. [para. 77].

Hedley Byrne & Co. v. Heller & Partners Ltd., [1964] A.C. 465 (H.L.), refd to. [para. 91].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 92].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, refd to. [para. 93].

British Columbia v. Imperial Tobacco Canada Ltd. et al. (2011), 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 355 D.L.R.(4th) 513; 2011 SCC 42, refd to. [para. 96].

Smith v. Landstar Properties Inc. (2011), 299 B.C.A.C. 106; 508 W.A.C. 106; 2011 BCCA 44, refd to. [para. 101].

North American Life Assurance Co. v. Pitblado & Hoskin et al. (2009), 245 Man.R.(2d) 111; 466 W.A.C. 111; 2009 MBCA 83, refd to. [para. 102].

Deraps v. Coia et al. (1999), 124 O.A.C. 73 (C.A.), refd to. [para. 102].

Porky Packers Ltd. v. The Pas (Town), [1977] 1 S.C.R. 51; 7 N.R. 569, refd to. [para. 106].

Dixon v. National Business Systems Inc. et al. (1993), 28 B.C.A.C. 15; 47 W.A.C. 15, refd to. [para. 109].

Sirois and Therrien v. New Brunswick Teachers Federation (N.B.T.F.) and L'Association des Enseignants Francophones du Nouveau-Brunswick (A.E.F.N.B.) (1984), 56 N.B.R.(2d) 50; 146 A.P.R. 50 (T.D.), refd to. [para. 109].

Haig v. Bamford et al., [1977] 1 S.C.R. 466; 9 N.R. 43, refd to. [para. 111].

Black v. Lakefield (Village) (1998), 113 O.A.C. 74; 41 O.R.(3d) 741 (C.A.), refd to. [para. 112].

Allison v. Noranda Inc. et al. (2001), 239 N.B.R.(2d) 211; 619 A.P.R. 211; 2001 NBCA 67, refd to. [para. 115].

Spinks v. Canada, [1996] 2 F.C. 563; 195 N.R. 184 (F.C.A.), refd to. [para. 115].

Krawchuk v. Scherbak et al. (2011), 279 O.A.C. 109; 2011 ONCA 352, leave to appeal dismissed 430 N.R. 396, refd to. [para. 116].

Sharbern Holding Inc. v. Vancouver Airport Centre Ltd. et al., [2011] 2 S.C.R. 175; 416 N.R. 1; 306 B.C.A.C. 1; 516 W.A.C. 1; 2011 SCC 23, refd to. [para. 116].

Lesage v. Canadian Forest Products Ltd. (2011), 307 B.C.A.C. 19; 519 W.A.C. 19; 2011 BCCA 259, refd to. [para. 117].

Kripps v. Touche Ross & Co. (1997), 89 B.C.A.C. 288; 145 W.A.C. 288, leave to appeal refused (1997), 225 N.R. 236; 102 B.C.A.C. 230; 166 W.A.C. 230, refd to. [para. 119].

Redmond v. Densmore and French (1997), 153 Nfld. & P.E.I.R. 181; 475 A.P.R. 181 (Nfld. C.A.), refd to. [para. 119].

NBD Bank Canada v. Dofasco Inc. et al. (1999), 127 O.A.C. 338; 46 O.R.(3d) 514 (C.A.), refd to. [para. 120].

Hub Excavating Ltd. v. Orca Estates Ltd. et al. (2009), 269 B.C.A.C. 186; 453 W.A.C. 186; 2009 BCCA 167, refd to. [para. 121].

Grant v. Oracle Corp. Canada Ltd. (1995), 100 Man.R.(2d) 28; 91 W.A.C. 28, refd to. [para. 123].

Brown & Root Services Corp. v. Aerotech Herman Nelson Inc. et al. (2004), 184 Man.R.(2d) 188; 318 W.A.C. 188; 2004 MBCA 63, refd to. [para. 141].

Authors and Works Noticed:

Burns, Peter T. and Blom, Joost, Economic Interests in Canadian Tort Law (2009), p. 371 [para. 122].

Fridman, Gerald Henry Louis, The Law of Torts in Canada (3rd Ed. 2010), p. 339 [para. 106].

Klar, Lewis N., Tort Law (4th Ed. 2008), pp. 237 [paras. 95, 97]; 238 to 240 [para. 102]; 242 [para. 110]; 249 [para. 121].

Rainaldi, Linda A., Remedies in Tort (1987) (Looseleaf), vol. 2, ch. 16.IV, para. 11.2 [para. 100].

Counsel:

C.R. MacArthur, Q.C., and C.M. Unfried, for The Canadian Wheat Board;

G.J. Orle, Q.C., D.C.G. Richert and C.H. Shire, for ConAgra Ltd.;

M. Newman and D.J. Kroft, for Albionex (Overseas) Ltd. and Pagnan S.p.A.

This appeal was heard on February 15 and 16, 2011, before Scott, C.J.M., Hamilton and Chartier, JJ.A., of the Manitoba Court of Appeal. On December 14, 2011, Scott, C.J.M., delivered the following decision for the court.

To continue reading

Request your trial
7 practice notes
  • Table of cases
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Limiting Principles
    • June 21, 2014
    ...84 Albionex (Overseas) Ltd v ConAgra Ltd, 2011 MBCA 95, leave to appeal to SCC refused, [2012] SCCA No 181 .................................. 30 Alcan Aluminium Ltd v Unican International SA (1996), 113 FTR 81 (TD), additional reasons at (1996), 120 FTR 44 (TD) ...................................
  • Compensation for Harm to Economic Interests
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Compensatory Damages
    • June 21, 2014
    ...the minimum level of performance, a factual inquiry may be necessary to determine the mode or level of perform- 27 2012 ONCA 178. 28 2011 MBCA 95, leave to appeal to SCC refused, [2012] SCCA No 181. 29 Hamilton v Open Window Bakery Ltd , [2004] 1 SCR 303. 30 See Agribrands Purina Canada Inc......
  • Winship v. Stantec Consulting Ltd. et al., 2016 ABQB 468
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • August 23, 2016
    ...work; it is also evidence that Winship's reliance on such representations would be reasonable: Albionex (Overseas) Ltd v Conagra Ltd , 2011 MBCA 95 at paras 93-95 and 97, 270 Man R (2d) 293 [ Albionex ], quoting Hercules Management Ltd v Ernst & Young , [1997] 2 SCR 165 at paras 22 and ......
  • Foreign Currency Obligations
    • Canada
    • Irwin Books Conflict of Laws. Second Edition
    • June 21, 2016
    ...and 129-39. Black, above note 6 at 85. See, for example, Stevenson Estate v Siewert, 2001 ABCA 180; Albionex (Overseas) Ltd v Conagra Ltd, 2011 MBCA 95 at para 141. In contrast, the Federal Court has insisted on the rigid breach-date rule: see, for example, Kuehne + Nagel Ltd v Agrimax Ltd,......
  • Request a trial to view additional results
4 cases
  • Winship v. Stantec Consulting Ltd. et al., 2016 ABQB 468
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • August 23, 2016
    ...work; it is also evidence that Winship's reliance on such representations would be reasonable: Albionex (Overseas) Ltd v Conagra Ltd , 2011 MBCA 95 at paras 93-95 and 97, 270 Man R (2d) 293 [ Albionex ], quoting Hercules Management Ltd v Ernst & Young , [1997] 2 SCR 165 at paras 22 and ......
  • Albionex (Overseas) Ltd. et al. v. ConAgra Ltd. et al., 2013 MBQB 310
    • Canada
    • Manitoba Court of Queen's Bench of Manitoba (Canada)
    • December 20, 2013
    ...plaintiffs also cross-appealed, arguing that damages should be increased. The Manitoba Court of Appeal, in a decision reported at (2011), 270 Man.R.(2d) 293; 524 W.A.C. 293 , dismissed the appeals by ConAgra and the CWB and the cross-appeals by Pagnan and Albionex (the plaintiffs). CWB app......
  • Whitehorn Lodge Inc. v. Nuco Inc. et al., 2012 ABQB 701
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • April 23, 2012
    ...165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, refd to. [para. 39]. Albionex (Overseas) Ltd. et al. v. ConAgra Ltd. et al. (2011), 270 Man.R.(2d) 293; 524 W.A.C. 293; 2011 MBCA 95, refd to. [para. Allison v. Noranda Inc. et al. (2001), 239 N.B.R.(2d) 211; 619 A.P.R. 211; 2001 NBCA 6......
  • Albionex (Overseas) Ltd. et al. v. Conagra Ltd. et al., (2012) 439 N.R. 394 (Motion)
    • Canada
    • Supreme Court (Canada)
    • August 30, 2012
    ...Albionex (Overseas) Limited, Pagnan S.p.A and ConAgra Limited , a case from the Manitoba Court of Appeal dated December 14, 2011. See 270 Man.R.(2d) 293; 524 W.A.C. 293; 2011 MBCA 95. See Bulletin of Proceedings taken in the Supreme Court of Canada , August 31, 2012. Motion dismissed. [End ......
3 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Limiting Principles
    • June 21, 2014
    ...84 Albionex (Overseas) Ltd v ConAgra Ltd, 2011 MBCA 95, leave to appeal to SCC refused, [2012] SCCA No 181 .................................. 30 Alcan Aluminium Ltd v Unican International SA (1996), 113 FTR 81 (TD), additional reasons at (1996), 120 FTR 44 (TD) ...................................
  • Compensation for Harm to Economic Interests
    • Canada
    • Irwin Books Remedies: The Law of Damages. Third Edition Compensatory Damages
    • June 21, 2014
    ...the minimum level of performance, a factual inquiry may be necessary to determine the mode or level of perform- 27 2012 ONCA 178. 28 2011 MBCA 95, leave to appeal to SCC refused, [2012] SCCA No 181. 29 Hamilton v Open Window Bakery Ltd , [2004] 1 SCR 303. 30 See Agribrands Purina Canada Inc......
  • Foreign Currency Obligations
    • Canada
    • Irwin Books Conflict of Laws. Second Edition
    • June 21, 2016
    ...and 129-39. Black, above note 6 at 85. See, for example, Stevenson Estate v Siewert, 2001 ABCA 180; Albionex (Overseas) Ltd v Conagra Ltd, 2011 MBCA 95 at para 141. In contrast, the Federal Court has insisted on the rigid breach-date rule: see, for example, Kuehne + Nagel Ltd v Agrimax Ltd,......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT