Norseman Inc. v. Petrie, [2015] A.R. TBEd. DE.135

• Judge: Haymour, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: May 19, 2015
• Citations: [2015] A.R. TBEd. DE.135;2015 ABPC 253

Norseman Inc. v. Petrie, [2015] A.R. TBEd. DE.135

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Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. DE.135

Norseman Inc. (plaintiff) v. Darrin Petrie (defendant)

(P1490301751; 2015 ABPC 253)

Indexed As: Norseman Inc. v. Petrie

Alberta Provincial Court

Haymour, P.C.J.

December 3, 2015.

Summary:

The plaintiff sued for recovery of the balance of the purchase price for a QC tent structure ("QC structure") sold by the plaintiff to the defendant. The plaintiff alleged that the defendant breached the written contract dated October 10, 2013, by failing to pay the balance outstanding after the plaintiff had completed its obligations of delivery and installation of the QC structure on November 26, 2013. The QC structure, a non-engineered building, collapsed in the first four days of January 2014. The plaintiff alleged that the building provided was exactly what the defendant had contracted for and that it collapsed through no fault of the plaintiff. The defendant alleged that the building collapsed as a result of it not being fit for the purposes for which it was sold (Sale of Goods Act, s. 16) entitling the defendant to rescission of the contract and recovery of all monies paid by the defendant to the plaintiff. The defendant also sought recovery of damages for equipment and vehicles that were stored inside the structure when it collapsed. Furthermore, the defendant alleged that the structure was not of merchantable quality (Act, s. 16). Alternatively, the defendant alleged that in reliance on the plaintiff's misrepresentations as to the quality and performance of the QC structure he was induced into purchasing the structure; the representations formed a collateral contract or alternatively formed part of the purchase contract between the parties; and contrary to the plaintiff's representations, the QC structure did not perform nor withstand Alberta winters, thus constituting a fundamental breach of the contract, entitling the defendant to damages arising out of the breach of this collateral agreement. In the further alternative, the defendant alleged that the plaintiff negligently or fraudulently misrepresented the design and performance of the QC structure; at all times the defendant made known to the plaintiff his intended use of the QC structure and relied on the plaintiff's skill and judgment in purchasing the same; the defendant relied on the plaintiff's fraudulent or negligent misrepresentations to his detriment; and the collapse of the building in the first few days of January 2014 deprived the defendant of the entire benefit which constituted a fundamental breach of the contract and entitled the defendant to rescind the contract and seek damages. In the further alternative, the defendant alleged that the QC structure collapsed due to the negligent manner in which the plaintiff or its agents constructed the structure.

The Alberta Provincial Court allowed the plaintiff's action and dismissed the defendant's counterclaim.

Contracts - Topic 1107

Formation of contract - Inducements - See paragraphs 68 to 79.

Contracts - Topic 2253

Terms - Conditions and warranties - What constitutes a warranty - See paragraphs 68 to 79 and 115.

Contracts - Topic 2107

Terms - Express terms - Warranty clauses - See paragraphs 93 to 114.

Contracts - Topic 2123

Terms - Express terms - Exclusionary clauses - Notice of - See paragraphs 100 and 101.

Contracts - Topic 2125

Terms - Express terms - Exclusionary clauses - Persons bound by - See paragraphs 100 and 101.

Contracts - Topic 2181

Terms - Representations - General - See paragraphs 68 to 79.

Contracts - Topic 3730

Performance or breach - Fundamental breach - What constitutes a fundamental breach - See paragraphs 80 to 114.

Contracts - Topic 8406

Collateral agreements - General - What constitutes - See paragraphs 68 to 79 and 115.

Contracts - Topic 9646

Contracts for work, materials and services - Implied terms - Implied warranty as to fitness of purpose - See paragraphs 99 and 106.

Fraud and Misrepresentation - Topic 6

Fraudulent misrepresentation (deceit) - What constitutes - See paragraphs 68 to 79.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - Negligent misrepresentation - See paragraphs 68 to 79.

Sale of Goods - Topic 4057

Conditions and warranties - Warranties - Extent of warranty of fitness - See paragraphs 80 to 114.

Sale of Goods - Topic 4106

Conditions and warranties - Implied or statutory terms as to quality or fitness - Fitness or suitability of goods - See paragraphs 99 and 106.

Sale of Goods - Topic 6101

Performance of contract - Installation - General - See paragraphs 116 to 126.

Sale of Goods - Topic 6507

Breach - Remedies of buyer - Rescission - Fundamental breach - See paragraphs 80 to 114.

Torts - Topic 54

Negligence - Causation - Test for (incl. ''but for'' test and ''material contribution'' test) - See paragraph 126.

Torts - Topic 165

Negligence - Evidence - Presumption of negligence (res ipsa loquitur) - General - See paragraphs 121 and 126.

Torts - Topic 167

Negligence - Evidence - Presumption of negligence (incl. res ipsa loquitur) - Res ipsa loquitur - Inference of negligence - See paragraphs 121 and 126.

Torts - Topic 4358

Suppliers of goods - Negligence - Retailers and wholesalers - Installation of goods sold - See paragraphs 116 to 126.

Counsel:

Daniel Hagg, for the plaintiff;

Sydney Sabine (Sabine & Webb), for the defendant.

This case was heard on March 13 and May 19, 2015, by Haymour, P.C.J., of the Alberta Provincial Court, who delivered the following decision on December 3, 2015.