Nova, An Alberta Corporation v. Guelph Engineering Co. and Daniel Valve Co. et al., (1989) 100 A.R. 241 (CA)

• Judge: Laycraft, C.J.A., Kerans and Côté, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 27, 1989
• Citations: (1989), 100 A.R. 241 (CA);1989 ABCA 253;100 AR 241;70 Alta LR (2d) 97;[1989] CarswellAlta 157;[1989] AJ No 951 (QL)

Nova v. Guelph Eng. Co. (1989), 100 A.R. 241 (CA)

MLB headnote and full text

Nova, An Alberta Corporation (appellant/plaintiff) v. Guelph Engineering Company, Valve Division of Welmet Industries Limited, The Public Trustee, Administrator Ad Litem of the Estate of Marvin H. Grove, deceased, Daniel Valve Company, a Delaware Corporation doing business as Daniel Industries Inc., M & J Valve Division and Canadian Corporate Management Company Limited (respondents/defendants)

(Appeal No. 19382)

Indexed As: Nova, An Alberta Corporation v. Guelph Engineering Co. and Daniel Valve Co. et al.

Alberta Court of Appeal

Laycraft, C.J.A., Kerans and Côté, JJ.A.

October 27, 1989.

Summary:

The plaintiff operated a high-pressure natural gas pipeline. The defendants designed and manufactured a shutoff valve, which was attached by a transition piece ending in a flange, which was bolted to the pipeline. After an uneventful 11 years the transition piece shattered, gas escaped and the plaintiff suffered a $33,000,000.00 loss. The plaintiff brought a negligence action for damages against the defendants.

The Alberta Court of Queen's Bench, in a judgment not reported in this series of reports, dismissed the action. The trial judge's abbreviated reasons recited that he considered all the expert evidence and accepted as the most reasonable the evidence of the defendants' experts. The plaintiff appealed.

The Alberta Court of Appeal, Côté, J.A., dissenting in part, dismissed the appeal. The court held that the trial judge's short reasons in such a complex case, whether he missed issues or not, raised a legitimate concern as to whether there was an adequate analysis of the case. The court held that this was an appropriate case for the Court of Appeal to retry the case rather than order a new trial. The court held that as the plaintiff failed to prove the defendants' negligence, the action must be dismissed.

Côté, J.A., agreed that the trial judge erred, but would have directed a new trial.

Courts - Topic 2105

Jurisdiction - Appellate jurisdiction - Court of Appeal - Civil appeals - The Alberta Court of Appeal set aside a trial judgment because of truncated reasons - The court stated that generally a new trial was preferable rather than trying the case itself on the transcript, because it was harder for a panel of judges to review the evidence, a new trial would allow for appellate review and the appeal court would not have the special advantage of seeing and hearing the witnesses - However, the Court of Appeal decided to retry the case itself, where the parties wished to avoid a retrial (no issues of credibility, primary facts undisputed), it was a long, expensive trial to which neither side wished to add anything, the only fact-issues of significance were acceptance or rejection of expert testimony and the appellant's grounds of appeal related to a verdict not supported by the evidence, which would normally not lead to a new trial - See paragraphs 46 to 58.

Practice - Topic 6031

Judgments and orders - Reasons for judgment after trial - Sufficiency of - The Alberta Court of Appeal qualified the presumption that "the failure to give reasons for decision does not, without more, constitute an error of law" with the following exceptions: (1) the trier of fact is under a duty to explain himself to the appeal court; (2) the judge must have reasons; the presumption does not exempt the judge from the reasoning process, only of the need to articulate something in order to prove that it happened; (3) you must distinguish the presumption from the "missed issue" rule, where the reasons given or the transcript disclose a missed issue; and (4) where the absence of reasons in a case of great complexity, where time is not a factor, fails to overcome a legitimate concern about the possibility that the decision-maker did not make an adequate analysis of the case - See paragraphs 26 to 45.

Practice - Topic 8800

Appeals - Duty of appellate court regarding fact findings by trial judge - An appellant claimed the trial judge drew the wrong inference from undisputed facts and, since credibility was not an issue, the Court of Appeal must retry the case and make the proper inferences - The Alberta Court of Appeal held that it should not retry a case without first finding palpable and overriding error in the trial judge's assessment of the evidence - The court stated that it was the trial court's role to hear and decide cases; the appellate court's role was to review for error, not to repeat the work of the trier of fact - See paragraphs 5 to 25.

Practice - Topic 8803

Appeals - Whether trial judge must give reasons for rejecting evidence - [See Practice - Topic 6031 above].

Practice - Topic 8808

Appeals - Duty of appellate court respecting conclusions or interpretation of evidence by trial judge - [See Practice - Topic 8800 above].

Practice - Topic 9228

Appeals - New trials - Grounds - Reasons for judgment insufficient - [See Courts - Topic 2105 above].

Torts - Topic 51

Negligence - Causation - General - The plaintiff's high-pressure pipeline was damaged when a transition piece designed and manufactured by the defendants shattered after 11 years of uneventful service - Each side presented expert evidence to explain the cause - The Alberta Court of Appeal dismissed the plaintiff's negligence action, where the plaintiff was unable to prove the defendants' negligence caused the loss - The plaintiff's experts' theories were negated by the evidence; the only non-negated theory (in the defendants' favour) was improbable, but not impossible.

Cases Noticed:

Stein Estate v. Ship "Kathy K", [1976] 2 S.C.R. 802; 6 N.R. 359, appld. [para. 16].

N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; 76 N.R. 212, appld. [para. 17].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6, refd to. [para. 18].

Hood v. Hood, [1972] 1 S.C.R. 244, refd to. [para. 20].

Coghlan v. Cumberland, [1898] 1 Ch. 704, disagreed with [para. 22].

Powell et ux v. Streatham Manor Nursing Home, [1935] A.C. 243 (H.L.), disagreed with [para. 22].

Watt v. Thomas, [1947] 1 All E.R. 582, refd to. [para. 23].

Benmax v. Austin Motor, [1955] 1 All E.R. 326, disagreed with [para. 23].

Maryland Casualty Co. v. Roland Roy Fourrures Inc. (1973), 35 D.L.R.(3d) 591 (S.C.C.), refd to. [paras. 34, 322].

Dorval v. Bouvier, [1968] S.C.R. 288, refd to. [para. 34].

Koschman et al. v. Hay et al. (1977), 80 D.L.R.(3d) 766 (Ont. C.A.), refd to. [para. 34].

R. v. MacDonald, [1977] 2 S.C.R. 665; 14 N.R. 421, appld. [para. 35].

R. v. Harper (1982), 40 N.R. 255 (S.C.C.), refd to. [paras. 35, 322].

Douglas v. Peacock and Skene, [1923] 1 W.W.R. 584 (Alta. S.C.A.D.), refd to. [paras. 38, 269].

Carter v. Ferguson, [1943] 2 W.W.R. 38 (Alta. S.C.A.D.), refd to. [para. 38, 269].

Prudential Trust v. Forseth, [1960] S.C.R. 210, refd to. [para. 47].

S.S. Hontestroom v. S.S. Sagaporack, [1927] A.C. 37, refd to. [para. 47].

Joyce v. Yeomans, [1981] 2 All E.R. 21, agreed with [para. 49].

University of Regina v. Pettick et al. (1986), 51 Sask.R. 270; 38 C.C. L.T. 230 (Q.B.), refd to. [para. 223].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 265].

Bayerische Ruks. Akt. v. Clarkson Puckle Overseas, Times, Jan. 23, 1989, refd to. [para. 265].

Colautti Constr. v. Ottawa (1984), 9 D.L.R.(4th) 265 (Ont. C.A.), refd to. [para. 286].

McCardell's Estate v. Cushman (1988), 94 A.R. 262; 62 Alta. L.R.(2d) 420 (C.A.), refd to. [para. 324].

Toronto v. Cartwright (1914), 50 S.C. R. 215, refd to. [para. 355].

Koschman v. Hay (1977), 80 D.L.R.(3d) 766 (Ont. C.A.), refd to. [para. 357].

Statutes Noticed:

Court of Appeal Act, R.S.S. 1978, c. C-42, sect. 8 [para. 18].

Authors and Works Noticed:

Burrows, Interpretation of Documents (2nd Ed. 1946), pp. 30-32 [para. 315].

Komar, Reasons for Judgment (1980), p. 6 [para. 270].

Salmond and Heuston on Torts (18th Ed. 1981), pp. 501, 505 [para. 303]; 513-514 [para. 295]; 516 [para. 303].

Wigmore on Evidence (Revsd. Ed. 1979), vol. 2, ss. 672, 676, 680 [para. 265].

Counsel:

A.D. Hunter, Q.C., N.K. Machida and A.G.P. Shewchuk, for the appellant;

E.D.D. Tavender, Q.C., and J.W. Rose, for the respondent, Daniel Valve Company; M & J Valve Div.;

J.C. Casey, Q.C., and J.I. Parker, for the respondent, Welmet Industries;

T.H. Ferguson, Q.C., and J.L. Lebo, for the Public Trustee.

This appeal was heard before Laycraft, C.J.A., Kerans and Côté, JJ.A., of the Alberta Court of Appeal.

On October 27, 1989, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Kerans J.A. (Laycraft, C.J.A. concurring) - See paragraphs 1 to 243;

Côté, J.A., dissenting - See paragraphs 244 to 359.