Bighorn No. 8 (Municipal District) v. Bow Valley Waste Management Commission, (2013) 578 A.R. 191 (QB)

• Judge: Hall, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 05, 2013
• Citations: (2013), 578 A.R. 191 (QB);2013 ABQB 723

Bighorn No. 8 v. Bow Valley Waste Mgmt. (2013), 578 A.R. 191 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. DE.078

Municipal District of Bighorn No. 8 (plaintiff) v. Bow Valley Waste Management Commission (defendant)

(0801 11124; 2013 ABQB 723)

Indexed As: Bighorn No. 8 (Municipal District) v. Bow Valley Waste Management Commission

Alberta Court of Queen's Bench

Judicial District of Calgary

Hall, J.

December 5, 2013.

Summary:

This action involved the interpretation of a term contained within a sale and purchase agreement entered into between the plaintiff and the defendant. The agreement transferred ownership of a landfill from the plaintiff to the defendant.

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

Contracts - Topic 7401

Interpretation - General principles - Intention of parties (incl. reasonable expectations) - [See Pollution Control - Topic 8061 ].

Contracts - Topic 7409

Interpretation - General principles - Subsequent conduct of parties - [See Pollution Control - Topic 8061 ].

Contracts - Topic 7426

Interpretation - Ambiguity - What constitutes ambiguity - [See Pollution Control - Topic 8061 ].

Contracts - Topic 7430

Interpretation - Ambiguity - Admissibility of extrinsic evidence - [See Pollution Control - Topic 8061 ].

Contracts - Topic 7468

Interpretation - Interpretation of words - Whole of contract to be considered - [See Pollution Control - Topic 8061 ].

Contracts - Topic 7521

Interpretation - Surrounding circumstances - General - [See Pollution Control - Topic 8061 ].

Pollution Control - Topic 8061

Land - Waste disposal - General - This action involved the interpretation of a term contained within a sale and purchase agreement of a landfill entered into between the plaintiff and the defendant - The dispute between the plaintiff and the defendant was, whether "C & D waste [...] tipped" included recyclable materials - The defendant had not paid the hosting fee on recyclables under the agreement - It was on this basis that the plaintiff alleged the defendant had breached the agreement and was in arrears on the payment of the hosting fee for those materials - The Alberta Court of Queen's Bench dismissed the action - The term "C & D waste tipped" was capable of bearing both meanings ascribed to it by the parties - That ambiguity was not resolved by simply looking at the words of the contract as a whole - No definitive assistance in interpreting that term could be obtained from review of the rest of the contract - The subsequent conduct whereby the defendant only paid the plaintiff for waste buried was not persuasive where the defendant did so without input from the plaintiff - The materials delivered to the landfill by the landfill's customers were certainly waste to those customers - However, the agreement related to the ownership and operation of a landfill in which the parties had a mutual interest - To the landfill, recyclables were not "useless remains or byproducts" - Recyclables were useful to the landfill owners - The Stanley and Xenex reports formed part of the factual matrix - The tonnages derived from the Stanley report and the Xenex report, and imported into clause 3.01 of the agreement were tonnages net of recyclables - This fact must be taken to have been known by each of the parties to the agreement - It provided objective evidence as to the intentions of the parties - Accordingly, the plaintiff's claim against the defendant failed based in the main on the objective evidence of intention provided by the Stanley and Xenex reports - See paragraphs 79 to 98.

Cases Noticed:

Nexxtep Resources Ltd. v. Talisman Energy Inc. et al. (2013), 542 A.R. 212; 566 W.A.C. 212; 2013 CarswellAlta 147 (C.A.), refd to. [para. 7].

Clark (A.G.) Holdings Ltd. v. Hoop Realty Inc., [2013] A.J. No. 223, refd to. [para. 7].

Black Swan Gold Mines Ltd. v. Goldbelt Resources Ltd., [1997] 1 W.W.R. 605; 78 B.C.A.C. 193; 128 W.A.C. 193 (C.A.), refd to. [para. 9].

Dumbrell v. Regional Group of Companies Inc. et al. (2007), 220 O.A.C. 64; 2007 ONCA 59, refd to. [para. 10].

Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways), [2010] 1 S.C.R. 69; 397 N.R. 331; 281 B.C.A.C. 245; 475 W.A.C. 245; 2010 SCC 4, refd to. [para. 12].

Scanlon v. Castlepoint Development Corp. et al. (1992), 59 O.A.C. 191; 1992 CarswellOnt 633 (C.A.), refd to. [para. 13].

Sunderji v. Germain Residences Ltd., [2012] A.R. Uned. 585; 2012 ABCA 389, refd to. [para. 14].

Davidson v. Allelix Inc. (1991), 54 O.A.C. 241; 1991 CarswellOnt 933 (C.A.), refd to. [para. 15].

Scalera v. Lloyd's of London (2000), 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161; 2000 SCC 24, refd to. [para. 15].

Dow Chemical Canada Inc. v. Shell Chemicals Canada Ltd. et al. (2010), 477 A.R. 112; 483 W.A.C. 112 (C.A.), refd to. [para. 16].

King v. Operating Engineers Training Institute of Manitoba Inc. (2011), 270 Man.R.(2d) 63; 524 W.A.C. 63; 2011 CarswellMan 485 (C.A.), refd to. [para. 17].

R. v. Jopp Ventures Corp. et al., [2001] B.C.T.C. 1051 (S.C.), refd to. [para. 62].

British Columbia (Minister of Environment, Lands and Parks) v. Alpha Manufacturing Inc. et al. (1997), 96 B.C.A.C. 193; 155 W.A.C. 193 (C.A.), refd to. [para. 62].

GreenIsle Environmental Inc. v. New Brunswick (Minister of the Environment and Local Government) (2007), 311 N.B.R.(2d) 161; 803 A.P.R. 161; 2007 NBCA 9, refd to. [para. 63].

Wimpey (George) Canada Ltd. v. Groveridge Imperial Properties Ltd. (1985), 64 A.R. 174; 40 Alta. L.R.(2d) 339 (Q.B.), refd to. [para. 78].

Hoefel v. Bongard & Co., [1945] S.C.R. 360, refd to. [para. 78].

Counsel:

Dennis K. Yasui, Q.C. (Brownlee LLP), for the plaintiff;

Nick Parker (Reynolds, Mirth, Richards & Farmer LLP), for the defendant.

This action was heard on October 7-11, 2013, by Hall, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on December 5, 2013.