Asea Brown Boveri Inc. v. Transelectrix Technology Inc. et al., (1996) 14 O.T.C. 114 (GD)

JudgeSheard, J.
CourtOntario Court of Justice General Division (Canada)
Case DateJune 27, 1996
JurisdictionOntario
Citations(1996), 14 O.T.C. 114 (GD)

Asea Brown v. Transelectrix Tech. Inc. (1996), 14 O.T.C. 114 (GD)

MLB headnote and full text

Asea Brown Boveri Inc. (plaintiff) v. Transelectrix Technology Inc. and Westinghouse Canada Inc. (defendants)

(Court File No. 93-CQ-31475)

Indexed As: Asea Brown Boveri Inc. v. Transelectrix Technology Inc. et al.

Ontario Court of Justice

General Division

Sheard, J.

August 15, 1996.

Summary:

Ontario Hydro purchased 10 generator transformers from Westinghouse. One of the transformers failed and had to be repaired off site. Asea Brown Boveri (ABB) had purchased Westinghouse's transformer division. Westinghouse remained responsible for its warranty obligations but the work would be done by ABB. Westinghouse issued a purchase order to ABB for the repair of the transformer. There was a dispute between Ontario Hydro and Westinghouse over whether the repair was covered by the warranty. ABB completed the repairs and upon demand by Ontario Hydro returned the transformer. ABB sued Westinghouse under the purchase order for the cost of repairing the transformer.

The Ontario Court (General Division), in a decision reported 8 O.T.C. 161, allowed ABB's action. ABB requested costs on a solicitor and client basis on the ground that the judgment obtained exceeded its March 7, 1995, offer to settle. Alternatively, ABB requested costs on a solicitor and client basis based on its September 25, 1995, offer to settle.

The Ontario Court (General Division) awarded ABB party and party costs up to September 25, 1995, and thereafter on the solicitor and client scale.

Interest - Topic 3501

Statutory interest - On judgments - General - See paragraph 11.

Interest - Topic 5009

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Calculation of - See paragraphs 3 to 10 and 12.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - See paragraphs 1 to 18.

Cases Noticed:

Saint John Tug Boat Co. v. Irving Refinery Ltd., [1964] S.C.R. 614, dist. [para. 7].

Smith v. Hughes (1871), L.R. 6 Q.B. 597, dist. [para. 8].

Sporn v. Herman (1987), 63 O.R.(2d) 95 (S.C. Master), folld. [para. 11].

Niagara Structural Steel (St. Catharines) Ltd. v. LaFlamme (W.D.) Ltd. (1987), 19 O.A.C. 142; 58 O.R.(2d) 773 (C.A.), dist. [para. 16].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 128(1) [para. 4].

Rules of Civil Procedure (Ont.), rule 49.10 [para. 17].

Counsel:

Frank Bowman and E. Christine Innes, for the plaintiff;

Alan J. Lenczner and Robin Martin, for the defendant.

This action was heard on February 18, 26 and 27, and March 1, 4 and 5, 1996, before Sheard, J., of the Ontario Court (General Division), who delivered the following judgment on June 27, 1996. The following supplementary reasons for judgment were released by Sheard, J., on August 15, 1996.

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