Capital Precast Ltd. v. Controls & Equipment Ltd., (2014) 356 Nfld. & P.E.I.R. 283 (NLPC)

• Judge: Orr, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: September 02, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: (2014), 356 Nfld. & P.E.I.R. 283 (NLPC)

Capital Precast v. Controls (2014), 356 Nfld. & P.E.I.R. 283 (NLPC);

    1108 A.P.R. 283

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. OC.021

Capital Precast Ltd. (plaintiff) v. Controls & Equipment Ltd. (defendant)

(Docket 0114C00083)

Indexed As: Capital Precast Ltd. v. Controls & Equipment Ltd.

Newfoundland and Labrador Provincial Court

Small Claims Division

Orr, P.C.J.

September 29, 2014.

Summary:

The plaintiff and defendant were both subcontractors in the construction of a sewage lift station. The plaintiff contracted to build the concrete chambers for the station and the defendant was to supply the pumps. The plaintiff's concrete chambers had to be modified after their completion in order to accommodate the pumps supplied by the defendant. The plaintiff sued the defendant for the cost of the changes, which were calculated at $12,400. The plaintiff alleged that the defendant was either negligent or had breached a contract that formed between the parties.

The Newfoundland and Labrador Provincial Court, Small Claims Division, found that the parties had formed a contract which the defendant breached. The defendant was ordered to pay the plaintiff $12,400 and costs.

Agency - Topic 1176

Authority of agent - Implied authority - General - [See Contracts - Topic 661 ].

Contracts - Topic 661

Parties - Capacity - Contracts by representative of party - General - The plaintiff and defendant were both subcontractors in the construction of a sewage lift station - The plaintiff contracted to build the concrete chambers for the station and the defendant was to supply the pumps - After the plaintiff completed the chambers, one of the defendant's employees (Abbott) advised the plaintiff that the chambers had to be modified to accommodate the pumps - It cost the plaintiff $12,400 to make the modifications - The plaintiff sued the defendant for this amount, asserting that the defendant had breached a contract that its agent (Abbott) made with the plaintiff - The defendant argued that it had not authorized Abbott to enter into such an agreement - The Newfoundland and Labrador Provincial Court, Small Claims Division, found that a separate agreement was made between the plaintiff and the defendant, and the defendant was liable for the cost of the modifications - Abbott was in charge of the project and had the ostensible authority to make the decisions that he did - The plaintiff relied on Abbott and constructed the chambers as per the design that he supplied - Abbott did not tell the plaintiff that the defendant would not pay for the changes or say anything that would lead the plaintiff to believe that the cost of the changes were an issue - See paragraphs 23 to 37.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - [See Torts - Topic 37 ].

Torts - Topic 2

Negligence - General - Negligence defined - [See Torts - Topic 37 ].

Torts - Topic 37

Negligence - Standard of care - Contractors - The plaintiff and defendant were both subcontractors in the construction of a sewage lift station - The plaintiff contracted to build the concrete chambers for the station and the defendant was to supply the pumps - Before constructing the chambers, the plaintiff asked the defendant which hardware needed to be imbedded in the floor of the chambers to accommodate the pumps - The defendant, in accordance with the information it had received from its pump supplier, advised the plaintiff that no hardware was needed - After the plaintiff completed the chambers, the defendant advised that they needed to be modified to accommodate the pumps - It cost the plaintiff $12,400 to make the modifications - The plaintiff sued the defendant for this amount, alleging negligence - The Newfoundland and Labrador Provincial Court, Small Claims Division, held that the defendant's failure to provide accurate information to the plaintiff did not amount to negligence or a breach of the standard of care - The defendant did what was reasonable by inquiring what the requirements were from the engineering department of its supplier - See paragraphs 11 to 22.

Cases Noticed:

Williams v. Thomas Development Corp. et al. (2007), 269 Nfld. & P.E.I.R. 290; 817 A.P.R. 290; 2007 NLCA 54, refd to. [para. 13].

Gay Nineties Icecream Co. Ltd. v. Geo. H. Hamilton & Sons Ltd. et al. (1973), 8 N.B.R.(2d) 381 (Q.B.), refd to. [para. 14].

University of Regina v. Pettick (1986), 51 Sask.R. 270; 23 (Q.B.), refd to. [para. 17].

Freeman and Lockyer v. Buckhurst Park Properties (Mangal) Ltd., [1964] 1 All E.R. 630, refd to. [para. 29].

Hiscock v. Maritime Life Assurance Co. (1999), 171 Nfld. & P.E.I.R. 168; 525 A.P.R. 168 (Nfld. C.A.), refd to. [para. 31].

Springdale Ultramar Ltd. v. Roberts (Dorman) Ltd. (1996), 149 Nfld. & P.E.I.R. 219; 467 A.P.R. 219 (Nfld. T.D.), refd to. [para. 33].

Authors and Works Noticed:

Heal, Construction Partnering: Good Faith in Theory and Practice (1999), 15 Const. L.J. 167, generally [para. 26].

Hudson's Building and Engineering Contracts (12th Ed. 2010), pp. 3-094 [para. 24]; 3-095 [para. 25]; 7-035 [para. 11]; 435 [para. 23].

Linden, Allen M., Canadian Tort Law (9th Ed. 2011), p. 471 [para. 20].

Waddams, Products Liability (2nd Ed. 1980), p. 104 [para. 16].

Counsel:

Andrew Rowe, for the plaintiff;

Randy Stapleton, for the defendant.

This matter was heard at St. John's, N.L., on September 2, 2014, before Orr, P.C.J., of the Newfoundland and Labrador Provincial Court, Small Claims Division, who delivered the following reasons for judgment on September 29, 2014.