Edmonton (City) v. Westinghouse Canada Inc. et al., (2000) 250 A.R. 385 (CA)

• Judge: Fraser, C.J.A., McClung and Hunt, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 17, 2000
• Citations: (2000), 250 A.R. 385 (CA)

Edmonton v. Westinghouse (2000), 250 A.R. 385 (CA);

    213 W.A.C. 385

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. MR.088

The City of Edmonton (appellant/plaintiff) v. Westinghouse Canada Inc., formerly known as Westinghouse Canada Limited, and the said Westinghouse Canada Limited (respondents/defendants)

(Appeal No. 9603-0343-AC)

Indexed As: Edmonton (City) v. Westinghouse Canada Inc. et al.

Alberta Court of Appeal

Fraser, C.J.A., McClung and Hunt, JJ.A.

February 17, 2000.

Summary:

The city purchased two power transformers from Westinghouse. One of the transformers failed 2.5 years later. The city sued Westinghouse in contract and tort, alleging, inter alia, a latent defect in manufacturing. Westinghouse claimed that the city's negli­gent maintenance of the transformer caused the failure and, in any event, liability was excluded under the contract.

The Alberta Court of Queen's Bench, in a judgment reported 179 A.R. 161, dismissed the action. The city failed to prove, on a balance of probabilities, a latent manufactur­ing defect resulting in the loss. Alternatively, the contract excluded liability outside the one year warranty period and the Sale of Goods Act did not assist the city. The city appealed on the grounds that the trial judge erred in failing to draw of inference of defectiveness and in refusing to permit the city to call certain rebuttal evidence.

The Alberta Court of Appeal, Fraser, C.J.A., dissenting, dismissed the appeal.

Evidence - Topic 122

Degree, standard or burden of proof - Burden of proof - Civil actions - [See Sale of Goods - Topic 4120 ].

Evidence - Topic 510

Presentation of evidence - Rebuttal evi­dence - General principles - The city purchased two power transformers from Westinghouse - One of the transformers failed 2.5 years later - The city sued Westinghouse in contract and tort, alleg­ing, inter alia, a latent defect in manufac­turing - Westinghouse claimed that the city's negligent maintenance of the trans­former caused the failure - Each party advanced its own theory of the cause of the failure, complete with credible expert witness testimony - The trial judge refused to permit the city to introduce rebuttal evidence concerning the analytical model used by Westinghouse's expert - The Alberta Court of Appeal held that the trial judge, in exercising his discretion, did not commit any palpable or overriding error - See paragraphs 8 to 10.

Sale of Goods - Topic 4120

Conditions and warranties - Implied or statutory terms as to quality or fitness - Burden of proof - The city purchased two power transformers from Westinghouse - One of the transformers failed 2.5 years later - The city sued Westinghouse in contract and tort, alleging, inter alia, a latent defect in manufacturing - Westinghouse claimed that the city's negli­gent maintenance of the transformer caused the failure - Each party advanced its own theory of the cause of the failure, complete with credible expert witness testimony - The trial judge, noting the onus on the city to prove its case on a balance of probabilities, stated that "the city has not proven its theory of the loss or put another way, Westinghouse has sat­isfied the evidentiary burden of excluding the city's theory as a reasonable hypoth­esis. ... the city has failed to prove on the balance of probabilities that the failure of transformer two was a result of defective manufacture by Westinghouse." - The evidence did not persuade the trial judge that any cause of damage was proved on a balance of probabilities ("enigma position") - The Alberta Court of Appeal held that the trial judge did not err failing to draw an inference that the transformer was defective when confronted with the "enigma position" - See paragraphs 2 to 7.

Torts - Topic 153

Negligence - Evidence - Burden of proof - [See Sale of Goods - Topic 4120 ].

Torts - Topic 4327

Suppliers of goods - Negligence - Manu­facturers - Defective goods - [See Sale of Goods - Topic 4120 ].

Cases Noticed:

Schreiber Brothers Ltd. v. Currie Products Ltd. and Gulf Oil Canada Ltd. (1980), 31 N.R. 335; 108 D.L.R.(3d) 1 (S.C.C.), refd to. [para. 6].

Smythe and Clarke Inc. v. Eurobags (Canada) Inc., [1991] O.J. No. 1148 (Gen. Div.), refd to. [para. 6].

Farmer v. Canada Packers Ltd., [1956] O.R. 657, refd to. [para. 15].

Commonwealth Construction Co. v. Syn­crude Canada Ltd. (1985), 64 A.R. 132; 40 Alta. L.R.(2d) 89 (Q.B.), refd to. [para. 31].

Counsel:

L.W. Olesen, Q.C., and N.E. Cumming, for the appellant;

R.B. Davidson, Q.C., and J.F. McGinnis, for the respondents.

This appeal was heard on February 16-17, 2000, before Fraser, C.J.A., McClung and Hunt, JJ.A., of the Alberta Court of Appeal.

On February 17, 2000, the following memorandum of judgment was delivered orally by the court and the following opin­ions were filed:

Fraser, C.J.A., dissenting - see para­graphs 1, 12 to 36;

McClung and Hunt, JJ.A. - see para­graphs 2 to 11.