Algo Enterprises Ltd. et al. v. Repap New Brunswick Inc., (2014) 431 N.B.R.(2d) 137 (TD)

• Judge: Walsh, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 07, 2013
• Jurisdiction: New Brunswick
• Citations: (2014), 431 N.B.R.(2d) 137 (TD);2014 NBQB 265

Algo Ent. Ltd. v. Repap N.B.  Inc. (2014), 431 N.B.R.(2d) 137 (TD);

    431 R.N.-B.(2e) 137; 1124 A.P.R. 137

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2015] N.B.R.(2d) TBEd. MR.019

Renvoi temp.: [2015] N.B.R.(2d) TBEd. MR.019

Algo Enterprises Ltd. and NBP Enterprises Inc. (plaintiffs) v. UPM-Kymmene Miramichi Inc. (Successor by Amalgamation to Repap New Brunswick Inc.) (defendant)

(N/C/19/07; 2014 NBQB 265; 2014 NBBR 265)

Indexed As: Algo Enterprises Ltd. et al. v. Repap New Brunswick Inc.

Répertorié: Algo Enterprises Ltd. et al. v. Repap New Brunswick Inc.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Walsh, J.

December 15, 2014.

Summary:

Résumé:

The plaintiff worked for the defendant under logging agreements that covered a particular contract season. At the end of the 2000-2001 season, the plaintiff was told by phone that it was no longer needed as a contractor. In March 2007, the plaintiff sued, asserting that the defendant had wrongfully terminated the contract for the 2001-2002 season.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action.

Editor's Note: For the decision granting the plaintiff's motion to amend its statement of claim, see (2013), 406 N.B.R.(2d) 36; 1053 A.P.R. 36.

Contracts - Topic 1444

Formation of contract - Agreements which are not contracts - Agreements to agree - The plaintiff worked for the defendant under logging agreements that covered a particular contract season - At the end of the 2000-2001 season, the plaintiff was told that it was no longer needed as a contractor - The plaintiff sued, asserting that the defendant had wrongfully terminated the contract for the 2001-2002 season - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action - The defendant had not terminated an existing contract, but had simply refused to enter into a contract for the next season, for which it could not be held liable - The wording of the agreement, "and shall continue from year to year by mutual agreement of both parties", reflected an unenforceable agreement to agree - Although the agreements were not really negotiated each year, many details did change and the plaintiff retained the freedom to not enter into the contract - Nothing in what the plaintiff presented as evidence of "surrounding circumstances" was a basis for reading into an unambiguous contract an obligation on the defendant to give the plaintiff notice or have cause to end the relationship - Further, as there was no evident ambiguity, contra proferentem did not apply - While the agreement stated that the defendant "retains the right to terminate the agreement for any cause" on three days' notice, when read in the context of the entire agreement, it was clear that this was added protection for the defendant if circumstances arose during the contract season that required ending the work - It was not a "termination requirement" - See paragraphs 17 to 54.

Contracts - Topic 7407

Interpretation - General principles - Whole contract to considered - [See Contracts - Topic 1444 ].

Contracts - Topic 7433

Interpretation - Ambiguity - Contra proferentem rule - [See Contracts - Topic 1444 ].

Contracts - Topic 7521

Interpretation - Surrounding circumstances - General - [See Contracts - Topic 1444 ].

Limitation of Actions - Topic 2023

Actions in contract - Actions for breach of contract - When time commences to run - The plaintiff worked for the defendant under logging agreements that covered a particular contract season - The last agreement between the parties was for the period from September 15, 2000 to March 31, 2001 - Sometime in March 2001 (the plaintiff was uncertain of the specific day), the plaintiff was told by phone that it was no longer needed as a contractor - On March 26, 2007, the plaintiff sued - The defendant asserted that, because the plaintiff was uncertain of the date when the phone call was received, the action was out of time - The New Brunswick Court of Queen's Bench, Trial Division, held that the action was commenced within the six year limitation period - The cause of action had not arisen until the expiry of the then existing contract season (March 31, 2001) - The notification given to the plaintiff was an "anticipatory breach", which the plaintiff had not accepted - Therefore, the limitation period ran from the date of performance of the obligation called for in the contract - See paragraphs 6 to 15.

Master and Servant - Topic 303

Nature of relationship - What constitutes an employer-employee relationship - The plaintiff worked for the defendant under logging agreements that covered a particular contract season - At the end of the 2000-2001 season, the plaintiff was told by phone that it was no longer needed as a contractor - In 2007, the plaintiff sued, asserting that the defendant had wrongfully terminated the contract for the 2001-2002 season - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action - Having found that there was no termination of an existing contract, but rather a refusal to enter into another contract, the court also rejected the plaintiff's argument that the contractual relationship here was "akin" to an employment relationship, such that a duty of good faith was implied - The relationship between the plaintiff and the defendant was neither an employer/employee relationship nor akin to one - The plaintiff was in business on its own account - See paragraphs 55 to 65.

Practice - Topic 5205.2

Trials - General - Provisional assessment of damages where no liability found - The plaintiff worked for the defendant under logging agreements that covered a particular contract season - At the end of the 2000-2001 season, the plaintiff was told by phone that it was no longer needed as a contractor - In 2007, the plaintiff sued, asserting that the defendant had wrongfully terminated the contract for the 2001-2002 season - The New Brunswick Court of Queen's Bench, Trial Division, in dismissing the action, declined to provide a provisional assessment of damages - There were "simply too many variables to permit a reasonably reliable determination of the foreseeability or remoteness of damages on a provisional basis and any attempt to do so on various alternative calculations basis smacks of artificiality" - See paragraphs 66 to 69.

Contrats - Cote 1444

Formation du contrat - Ententes qui ne sont pas des contrats - Entente pour s'entendre - [Voir Contracts - Topic 1444 ].

Contrats - Cote 7407

Interprétation - Principes généraux - L'ensemble du contrat doit être considéré - [Voir Contracts - Topic 7407 ].

Contrats - Cote 7433

Interprétation - Ambiguïté - Règle dite contra proferentem - [Voir Contracts - Topic 7433 ].

Contrats - Cote 7521

Interprétation - Circonstances entourant la conclusion du contrat - Généralités - [Voir Contracts - Topic 7521 ].

Employeurs et employés - Cote 303

Nature de la relation - En quoi consiste la relation employeur-employée - [Voir Master and Servant - Topic 303 ].

Prescription - Cote 2023

Actions contractuelles - Actions pour rupture contractuelle - Point de départ du délai de prescription - [Voir Limitation of Actions - Topic 2023 ].

Procédure - Cote 5205.2

Procès - Généralités - Évaluation provisoire des dommages-intèrêts en l'absence d'une conclusion de responsabilité - [Voir Practice - Topic 5205.2 ].

Cases Noticed:

Bhasin v. Hrynew et al. (2014), 464 N.R. 254; 584 A.R. 6; 623 W.A.C. 6; 2014 SCC 71, refd to. [para. 5].

Dupuis v. Moncton (City) (2005), 284 N.B.R.(2d) 97; 742 A.P.R. 97; 2005 NBCA 47, refd to. [para. 12].

Godin v. Star-Key Enterprises Ltd. (2006), 305 N.B.R.(2d) 180; 791 A.P.R. 180; 2006 NBCA 91, refd to. [para. 12].

Oz Optics Ltd. v. Timbercon Inc. (2011), 285 O.A.C. 232 (C.A.), refd to. [para. 20].

Robichaud v. Pharmacie Acadienne de Beresford ltée - see/voir Pharmacie Acadienne de Beresford ltée v. Beresford Shopping Centre Ltd./ltée et al.

Pharmacie Acadienne de Beresford ltée v. Beresford Shopping Centre Ltd./ltée et al. (2008), 328 N.B.R.(2d) 205; 841 A.P.R. 205; 2008 NBCA 12, refd to. [para. 22].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 24].

Creston Moly Corp. v. Sattva Capital Corp. (2014), 461 N.R. 335; 2014 SCC 53, refd to. [para. 24].

Strand Music Hall Co., Re (1865), 55 E.R. 853, refd to. [para. 26].

BG Checo International Ltd. v. British Columia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, refd to. [para. 30].

McClelland and Stewart Ltd. v. Mutual Life Assurance Co. of Canada, [1981] 2 S.C.R. 6; 37 N.R. 190, refd to. [para. 31].

Higgins Estate v. Arseneau (2014), 425 N.B.R.(2d) 109; 1107 A.P.R. 109; 2014 NBCA 65, refd to. [para. 43].

Keays v. Honda Canada Inc. (2008), 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 60].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al. (2001), 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, refd to. [para. 62].

Authors and Works Noticed:

Fridman, G.H.L., The Law of Contract in Canada (6th Ed.), pp. 458 [para. 31]; 463, 464 [para. 42].

McCamus, J.D., The Law of Contract (2005), p. 719 [para. 26].

Mew, Graeme, The Law of Limitations (1991), p. 131 [para. 14].

Counsel:

Avocats:

Rodney J. Gillis, Q.C., for the plaintiffs;

Debora M. Lamont (on January 7, 2013) and Melissa M. Everett-Withers (on November 17, 2014), for the defendant.

This action was heard on January 7, 2013, and November 17, 2014, by Walsh, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following decision on December 15, 2014.