Houweling Nurseries Oxnard Inc. v. Saskatoon Boiler Mfg. Co., 2011 SKQB 181

• Judge: R.S. Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 05, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 181;(2011), 373 Sask.R. 309 (QB)

Houweling Nurseries v. Saskatoon Boiler (2011), 373 Sask.R. 309 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. MY.054

Houweling Nurseries Oxnard, Inc. (plaintiff) v. Saskatoon Boiler Mfg. Co. Ltd. (defendant)

Saskatoon Boiler Mfg. Co. Ltd. (plaintiff by counterclaim) v. Houweling Nurseries Oxnard, Inc. (defendant by counterclaim)

(2003 Q.B. No. 113; 2011 SKQB 181)

Indexed As: Houweling Nurseries Oxnard Inc. v. Saskatoon Boiler Mfg. Co.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

R.S. Smith, J.

May 5, 2011.

Summary:

The plaintiff operated a commercial greenhouse in California. It required boilers that would generate an input firing rate of 52.3 million BTUs/hr with emissions of nitrous oxide (Nox) of less than 30 ppm. In 1996, the defendant agreed to supply four such boilers. None of the boilers performed as required. The plaintiff sued the defendant, seeking damages of $17,859,471 (Cdn) for lost production, increased maintenance costs, losses due to excess fuel consumption and for the future replacement of the boilers (necessary to meet regulatory requirements regarding Nox emissions).

The Saskatchewan Court of Queen's Bench, in a decision reported at (2011), 370 Sask.R. 1, granted the plaintiff judgment for $4,570,578 (US) (total damages before pre-judgment interest and costs). Issues arose regarding currency conversion, the prejudgment interest calculation and costs.

The Saskatchewan Court of Queen's Bench determined the issues.

Interest - Topic 5009

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Calculation of (incl. rate) - The defendant supplied the plaintiff with boilers for the plaintiff's commercial greenhouse in California - None of the boilers performed as required - The plaintiff sued the defendant, seeking damages of $17,859,471 (Cdn) for lost production, increased maintenance costs and other losses - The court granted the plaintiff judgment for $4,570,578 (US) - An issue arose as to the calculation of prejudgment interest - The claim period addressed in the trial judgment was January 1, 1996 to December 31, 2001 - The Saskatchewan Court of Queen's Bench directed that prejudgment interest to the date of judgment (March 14, 2011) was to be calculated as follows: (i) the prorated approach employed by the plaintiff's expert was the preferred method; (ii) for the period prior to December 31, 2001, the prejudgment interest was to be calculated on US dollars; (iii) as of December 31, 2001, there was to be a conversion to Canadian dollars of the judgment amount and the prejudgment interest calculated to that point; and (iv) from and after December 31, 2001, prejudgment interest was to be calculated in Canadian dollars - See paragraphs 8 to 10.

Practice - Topic 7060.2

Costs - Party and party costs - Counsel fees - Motions - The defendant supplied the plaintiff with boilers for the plaintiff's commercial greenhouse in California - None of the boilers performed as required - The plaintiff sued the defendant, seeking damages of $17,859,471 (Cdn) for lost production, increased maintenance costs and other losses - At the conclusion of the plaintiff's case, the defendant brought a non-suit application, which the plaintiff successfully defended - The court granted the plaintiff judgment for $4,570,578 (US) - An issue arose regarding the costs allowed for the non-suit application - The Saskatchewan Court of Queen's Bench applied item 5 from column 4, dealing with a complex opposed motion and accompanying brief of law - The plaintiff was entitled to costs of $700 - See paragraphs 25 and 26.

Practice - Topic 7068

Costs - Party and party costs - Counsel fees - Nontrial matters - The defendant supplied the plaintiff with boilers for the plaintiff's commercial greenhouse in California - None of the boilers performed as required - The plaintiff sued the defendant, seeking damages of $17,859,471 (Cdn) for lost production, increased maintenance costs and other losses - The court granted the plaintiff judgment for $4,570,578 (US) - An issue arose regarding the costs allowed for the plaintiff's counsel to be present when the defendant's experts conducted a site visit of the plaintiff's California facility - The Saskatchewan Court of Queen's Bench characterized the site visit as equal to two full days of court (for first counsel) - Under column 4, the costs for first counsel on a full day basis were $1,000 - The fee award was, therefore, $2,000 - The plaintiff was also entitled to recover disbursements for counsel on that trip (flight and accommodation only) - See paragraphs 21 and 22.

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - The defendant supplied the plaintiff with boilers for the plaintiff's commercial greenhouse in California - None of the boilers performed as required - The plaintiff sued the defendant, seeking damages of $17,859,471 (Cdn) for lost production, increased maintenance costs and other losses - The court granted the plaintiff judgment for $4,570,578 (US) - An issue arose regarding the costs allowed for the plaintiff's experts - The Saskatchewan Court of Queen's Bench concluded that the plaintiff was entitled to recover 75% of the experts' costs that it had incurred - The defendant was entitled to have access to the experts' invoices to determine whether all or part of the invoice should benefit from the 75% recovery - The plaintiff was entitled to redact anything from those invoices that it considered privileged - See paragraphs 15 to 20.

Practice - Topic 7090

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Drafting of pleadings and other documents (incl. statement of facts) - The defendant supplied the plaintiff with boilers for the plaintiff's commercial greenhouse in California - None of the boilers performed as required - The plaintiff sued the defendant, seeking damages of $17,859,471 (Cdn) for lost production, increased maintenance costs and other losses - On December 21, 2009, the plaintiff served a notice to admit facts on the defendant - The trial began on January 4, 2010 - The court granted the plaintiff judgment for $4,570,578 (US) - An issue arose regarding the costs allowed for the plaintiff's notice to admit facts - The Saskatchewan Court of Queen's Bench awarded the plaintiff no costs with respect to the notice to admit facts - The notice to admit facts was extremely detailed - Further, there was the complicating matter of timing - The defendant was not provided with a reasonable opportunity to properly address the notice - See paragraphs 23 and 24.

Practice - Topic 7118.1

Costs - Party and party costs - Special orders - Multiplier - The defendant supplied the plaintiff with boilers for the plaintiff's commercial greenhouse in California - None of the boilers performed as required - The plaintiff sued the defendant, seeking damages of $17,859,471 (Cdn) for lost production, increased maintenance costs and other losses - The court granted the plaintiff judgment for $4,570,578 (US) - The parties agreed that costs were to be calculated under column 4 and that costs for second counsel were to be awarded - Further, due to unaccepted offers to settle from the plaintiff, the plaintiff was entitled to double costs at least from November 2009 (judgment date was March 2011) - The plaintiff asked the court to apply a multiplier under column 4, such that costs would be three times the normal costs under column 4, based on the length and complexity of the action - The Saskatchewan Court of Queen's Bench held that for costs (not including disbursements) awarded under column 4 (including double costs), the plaintiff was entitled to an increase by a factor of .5 - The case was long, multi-faceted and complex - However, any increase in costs was moderated by the award of double costs - See paragraphs 32 to 40.

Cases Noticed:

Creative Touch Millworks Inc. et al. v. Royal Insurance Co. of Canada et al. (1991), 94 Sask.R. 260 (Q.B.), refd to. [para. 34].

Kerrybrooke Development Ltd. and Simpsons-Sears Ltd. v. Ellis-Don Ltd. and Westeel-Rosco Ltd. et al. (1991), 92 Sask.R. 148 (Q.B.), refd to. [para. 34].

Murphy v. Saskatchewan Government Insurance (2007), 306 Sask.R. 211; 2007 SKQB 467, refd to. [para. 34].

Lac La Ronge Indian Band v. Dallas Contracting Ltd. et al. (2002), 228 Sask.R. 46; 2002 SKQB 407, refd to. [para. 34].

Eaton et al. v. HMS Financial Inc. et al. (2010), 486 A.R. 130; 2010 ABQB 364, refd to. [para. 36].

Zust Bachmeier International Air Cargo Inc. v. Klapatiuk et al., [2006] A.R. Uned. 786; 67 Alta. L.R.(4th) 399; 2006 ABQB 875, refd to. [para. 36].

Spar Aerospace Ltd. v. Aerowerks Engineering Inc. et al. (2007), 428 A.R. 18; 82 Alta. L.R.(4th) 396; 2007 ABQB 688, refd to. [para. 36].

Counsel:

R.W. Thompson, Q.C., and C. Chisolm, for the plaintiff;

G.G.W. Semenchuck, Q.C., and A.T. Ailsby, for the defendant.

This matter was heard by R.S. Smith, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on May 5, 2011.