Canbra Foods Ltd. v. Overwater, (1977) 7 A.R. 506 (CA)

• Judge: Clement, Lieberman and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 16, 1977
• Citations: (1977), 7 A.R. 506 (CA)

Canbra Foods Ltd. v. Overwater (1977), 7 A.R. 506 (CA)

MLB headnote and full text

Canbra Foods Ltd. v. Overwater

Indexed As: Canbra Foods Ltd. v. Overwater

Alberta Supreme Court

Appellate Division

Clement, Lieberman and Haddad, JJ.A.

November 16, 1977.

Summary:

This case arose out of the claim by a rapeseed processor against a farmer for damages for breach of a contract to grow, sell and deliver rapeseed to the processor. The farmer contracted with the processor to grow and deliver rapeseed for a certain price. However, at the time for delivery the price of rapeseed was considerably higher than the contract price, so the farmer sold his rapeseed elsewhere at the higher price. The processor brought an action against the farmer for damages for breach of the contract. The farmer pleaded in his defence that, since the processor was not licensed under the Canada Grain Act, S.C. 1970-71-72, c. 7, the contract was invalid and unenforceable. The Alberta Supreme Court, Trial Division, in a judgment unreported in this series of reports, allowed the processor's action. The farmer appealed.

The Alberta Court of Appeal dismissed the appeal and affirmed the judgment of the Trial Division. The Court of Appeal held that the processor was the operator of a process elevator within the meaning of s. 2(38) of the Canada Grain Act and as such was exempt from the provisions of the Canada Grain Act. See paragraphs 1 to 10.

Damages - Topic 5840

Contracts - Sale of Goods - Breach by seller - Failure to deliver - Determination of delivery date - A contract for the sale and delivery of rapeseed to be harvested in 1973 provided that the buyer "must order the seed to be delivered not later than July 31, 1974" - The seller stated that he intended to deliver in November or December, 1973, but did not - The buyer sent notices to deliver in April, June and July, 1974, to which the seller did not respond - The buyer then purchased rapeseed from the open market, when the price was at its highest - The Alberta Court of Appeal held that the price of the rapeseed when the buyer purchased it in July should be used to determine the buyer's damages and not the lower price in April - See paragraphs 11 to 12.

Trade Regulation - Topic 3706

Marketing of agricultural products - Grain - Federal licensing of grain elevators - Exemptions - Process elevators - Canada Grain Act, S.C. 1970-71-72, c. 7, ss. 2(38), 69(2) - Canada Grain Act Regulations, s. 17 - The Alberta Court of Appeal held that under s. 17 of the Canada Grain Act Regulations a process elevator was exempt from not only the licensing provisions but all the provisions of the Canada Grain Act - See paragraphs 1 to 10.

Cases Noticed:

Montana Mustard Seed Co. Inc. v. Continental Grain Co. (Canada) Ltd. et al. (1975), 15 N.R. 459, dist. [para. 10].

Statutes Noticed:

Canada Grain Act, S.C. 1970-71-72, c. 7, sect. 2(38), sect. 69(1)(b), sect. 69(2)(a) [para. 7].

Canada Grain Act Regulations, sect. 17 [para. 7].

Counsel:

L.W. Yuzda, for the appellant;

C.G. Virtue, Q.C., for the respondent.

This case was heard before CLEMENT, LIEBERMAN and HADDAD, JJ.A., of the Alberta Supreme Court, Appellate Division.

On November 16, 1977, CLEMENT, J.A., delivered the following judgment for the Appellate Division: