J.D. Irving Ltd., Aetna Insurance Co. and Foster Wheeler Ltd. v. Mojan ltée, Fraser-Brace Engineering Co. and Canadian Surety Co., Foster Wheeler Ltd. and J.D. Irving Ltd. and Irving Oil Ltd., (1983) 52 N.B.R.(2d) 361 (TD)

• Judge: Higgins, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: August 15, 1983
• Jurisdiction: New Brunswick
• Citations: (1983), 52 N.B.R.(2d) 361 (TD)

Irving Ltd. v. Mojan ltée (1983), 52 N.B.R.(2d) 361 (TD);

    52 R.N.-B.(2e) 361; 137 A.P.R. 361

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J.D. Irving Limited, Aetna Insurance Company and Foster Wheeler Limited v. Mojan Ltée (defendant), Fraser-Brace Engineering Company Limited and Canadian Surety Company (third parties), Foster Wheeler Limited (fourth party) and J.D. Irving Limited and Irving Oil Limited (fifth parties)

(No. S/C/885/79)

Indexed As: J.D. Irving Ltd., Aetna Insurance Co. and Foster Wheeler Ltd. v. Mojan ltée, Fraser-Brace Engineering Co. and Canadian Surety Co., Foster Wheeler Ltd. and J.D. Irving Ltd. and Irving Oil Ltd.

Répertorié: J.D. Irving Ltd., Aetna Insurance Co. and Foster Wheeler Ltd. v. Mojan ltée, Fraser-Brace Engineering Co. and Canadian Surety Co., Foster Wheeler Ltd. and J.D. Irving Ltd. and Irving Oil Ltd.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Higgins, J.

August 15, 1983.

Summary:

Résumé:

The defendant Mojan was a sub-contractor on an Irving construction project. Mojan was required to use equipment owned and supplied by Irving on the project. Irving sued Mojan for damages arising from the collapse of a crane used on the project.

The New Brunswick Court of Queen's Bench, Trial Division, held that Irving and Mojan were in a bailor-bailee relationship. The Trial Division dismissed Irving's action.

Bailment - Topic 2202

Liability of bailee - Bailment for benefit of bailor and bailee - Bailment for hire - What constitutes - A construction subcontract required the subcontractor to use equipment supplied by the project owner - The equipment's operators were also supplied by the owner, with the implied term that they held the necessary skill to do the job - Generally, the equipment remained the owner's responsibility, while the job the equipment was to do was the responsibility of the subcontractor - The New Brunswick Court of Queen's Bench, Trial Division, held that the relationship between the parties was that of a bailment for hire of the equipment, including supply of skilled services - See paragraphs 8 to 32.

Bailment - Topic 2220

Liability of bailee - Bailment for benefit of bailor and bailee - Evidence - Burden of proof on bailee - A subcontractor hired equipment plus operators from the project owner - The New Brunswick Court of Queen's Bench, Trial Division, held that the subcontractor's duty to account for any damage to the equipment was grounded in the bailment contract - The court held that an onus rested on the subcontractor to disprove negligence only respecting those areas over which it had responsibility under the contract - See paragraphs 32 to 37 - The court held that there was no onus on the subcontractor to prove how the accident causing the damage happened - See paragraph 101.

Evidence - Topic 527

Presentation of evidence - Communication aids - A bailor/owner sued the bailee for negligently damaging the bailed goods - To discharge the onus of proving negligence, the bailee introduced the results of three tests conducted by it - The New Brunswick Court of Queen's Bench, Trial Division, accepted an expert's report with photographs plus testimony from its author, a video presentation of an experiment and a courtroom presentation - See paragraphs 70 to 79.

Cases Noticed:

Morris v. C.W. Martin & Sons, Ltd., [1965] 2 All. E.R. 725, refd to. [para. 18].

Scott Maritimes Pulp Ltd. v. B.F. Goodrich Canada Ltd. et al. (1977), 19 N.S.R.(2d) 181; 24 A.P.R. 181 (N.S.C.A.), refd to. [para. 20].

McKinnon v. Acadian Lines (1977), 24 N.S.R.(2d) 20; 35 A.P.R. 20, refd to. [para. 20].

Catalytic Construction of Canada Ltd. v. Austin Company Ltd. (1957), 8 D.L.R.(2d) 136, consd. [para. 21].

Allison Concrete Ltd. v. C.P.R. (1974), 40 D.L.R.(3d) 237, consd. [para. 21].

Townsend Air Services Ltd. v. Hansen (1975), 54 D.L.R.(3d) 205, consd. [para. 21].

Great Lakes Steel Products Ltd. v. M.E. Doyle Ltd. (1969), 1 D.L.R.(3d) 349, consd. [para. 21].

C.N.R. v. Hamill (1973), 5 Nfld. & P.E.I.R. 340; 43 D.L.R.(3d) 731, consd. [para. 22].

M. v. Sinclair (1980), 15 C.C.L.T. 57, consd. [para. 22].

Acadia Road Contractors Ltd. v. Canadian Surety Co. (1978), 81 D.L.R.(3d) 169 (N.S.S.C.T.D.), affd. 27 N.S.R.(2d) 605; 41 A.P.R. 605, consd. [para. 22].

McCreary v. Therrien, [1952] 1 D.L.R. 153, refd to. [para. 27].

"The Ruapehu" (1925), 21 Ll.L. Rep. 310, refd to. [para. 27].

Arrow Transfer v. Fleetwood Logging (1962), 30 D.L.R.(2d) 631, consd. [para. 34].

R. v. Halifax Shipyards Ltd. (1956), 4 D.L.R.(2d) 566, refd to. [para. 101].

Bosse v. Roy (1972), 4 N.B.R.(2d) 801, refd to. [para. 116].

Levesque v. Comeau, [1970] S.C.R. 1010; 5 N.B.R.(2d) 15, refd to. [para. 116].

Authors and Works Noticed:

Fridman, The Law of Agency (4th Ed.), p. 18 [para. 16].

Halsbury's Laws of England (4th Ed.), vol. 2, pp. 722-723 [para. 22].

Story, The Law of Bailment (9th Ed.), pp. 336, 375 [para. 33].

Leonhart, Fritz, The Coefficient of Friction, pp. 216, 218, 221-222 [para. 71].

Counsel:

John P. Barry, Q.C., Thomas G. O'Neil, J. Richard Hatchette and Paulette Garnett, for J.D. Irving Limited and Aetna Insurance Company;

Eugene J. Mockler, Q.C. and Myrna Athey, for Mojan Ltée;

D. Leslie Smith and Lorna MacKenzie, for Fraser-Brace Engineering Company Limited and Canadian Surety Company;

J. Edward Murphy, Q.C., for Foster Wheeler Limited.

This action was heard before Higgins, J., of the New Brunswick Court of Queen's Bench, Trial Division, on June 7-11 and September 13-17, 1982 and on January 10-14 and 17-20, 1983. The decision of Higgins, J., was delivered on August 15, 1983.