Outfitters v. GM Assoc., (1976) 10 Nfld. & P.E.I.R. 399 (NFCA)

JudgeFurlong, C.J., Morgan and Gushue, JJ.A.
CourtNewfoundland Court of Appeal
Case DateApril 06, 1976
JurisdictionNewfoundland and Labrador
Citations(1976), 10 Nfld. & P.E.I.R. 399 (NFCA)

Outfitters v. GM Assoc. (1976), 10 Nfld. & P.E.I.R. 399 (NFCA);

    17 A.P.R. 399

MLB headnote and full text

Outfitters Incorporated Limited v. G.M. Associates Limited and Manion

Indexed As: Outfitters Inc. v. G.M. Associates Ltd. and Manion

Newfoundland Supreme Court

Court of Appeal

Furlong, C.J., Morgan and Gushue, JJ.A.

April 6, 1976.

Summary:

This case arose out of the plaintiff's claim against the defendants for breach of contract. The plaintiff stevedoring company contracted with one of its customers to provide the customer with stevedoring services from September 1, 1967, for five years. The plaintiff then contracted with the defendant, G.M. Associates Limited, for the defendant to service the customer under the plaintiff's agreement. The term of the contract with the defendant was from May 1, 1969, to December 31, 1969, but the agreement was renewable on an annual basis. The agreement contained a covenant that the defendant would not compete with the plaintiff during the contract and a clause for the arbitration of disputes. The plaintiff and the defendant continued to work under the contract for the years 1970, 1971 and 1972. The parties continued to work under the contract into 1973. At that time the defendant bid on a stevedoring contract with the customer. The plaintiff claimed that this was in breach of an agreement in the contract and brought an action against the defendants. On a preliminary motion by the defendant, G.M. Associates Limited, the trial court held in an unreported judgment, that the agreement was in effect in 1973, that the dispute was one arising under the contract and that it should be submitted to arbitration. The defendant, G.M. Associates Limited, appealed the decision on the ground that the trial court erred in holding that the agreement was in effect in 1973.

The Newfoundland Court of Appeal dismissed the appeal. The appeal court held that the actions of the parties in renewing the contract yearly led to the conclusion that the contract was intended to continue in 1973. The appeal court affirmed the trial court's finding that the dispute was one arising under the contract and that it should be taken to arbitration before legal action could be brought.

Arbitration - Topic 2506

Stay of proceedings - Interpretation of contract with respect to arbitrability of dispute - The plaintiff stevedoring company contracted with the defendant for the defendant to provide stevedoring services to the plaintiff's customer - The agreement contained a covenant that the defendant would not compete with the plaintiff during the contract and a clause for the arbitration of disputes - The defendant during the contract bid on a stevedoring contract with the plaintiff's customer, causing a dispute with the plaintiff - The Newfoundland Court of Appeal affirmed a finding of the trial judge that the dispute was one under the contract and that court proceedings should be stayed while it was submitted to arbitration - Paragraphs 5, 6 and 13.

Contracts - Topic 2530

Variation or alteration - By parties - Extension of term by actions of parties - The plaintiff stevedoring company contracted with the defendant for the defendant to provide stevedoring services to a customer of the plaintiff - The term of the plaintiff's contract with its customer was to terminate September 1, 1972 - The contract between the plaintiff and the defendant was for a term from May 1, 1969, to December 31, 1969, but the contract could be renewed annually - The parties worked under the contract with minor changes in 1970, 1971 and 1972 - The defendant continued to work under the contract in 1973, when a dispute arose - The plaintiff argued that the contract expired at the end of 1972 - The Newfoundland Court of Appeal held that the practice of the parties under the contract continued the contract in effect into 1973 - Paragraphs 8 and 9.

Contracts - Topic 4552

Discharge or termination - Cancellation by agreement - The plaintiff stevedoring company contracted with the defendant for the defendant to provide stevedoring services to a customer of the plaintiff - The term of the plaintiff's contract with its customer was to terminate September 1, 1972 - The contract between the plaintiff and the defendant was for a term from May 1, 1969, to December 31, 1969, but the contract could be renewed annually - The parties worked under the contract with minor changes in 1970, 1971 and 1972 - The defendant continued to work under the contract in 1973, when a dispute arose - The plaintiff argued that the contract expired at the end of 1972 - The Newfoundland Court of Appeal held that given the actions of the parties under the contract in renewing it from year to year it would take some affirmative act of termination on the part of one of the parties to terminate the contract - The Court of Appeal held that the contract continued in effect into 1973 - Paragraphs 10 to 12.

Practice - Topic 8800

Appeals - Function of appeal court respecting fact-findings of trial judge - The Newfoundland Court of Appeal held that before the appeal court could interfere with a fact-finding of the trial judge it must be shown that there was a total absence of factual foundation for the finding - The Court of Appeal held that the trial judge's finding that a dispute between the parties was one arising under a contract between them should not be disturbed - Paragraphs 6 to 8.

Cases Noticed:

Greenlund v. Drysdale (1958), 12 D.L.R.(2d) 765, appld. [para. 7].

Harrison v. Crowe (1914), 16 D.L.R. 288, folld. [para. 11].

Counsel:

E. Poole, for the defendants-appellants;

J. Sinnott, for the plaintiff-respondent.

This case was heard on March 24, 1976, before FURLONG, C.J., and MORGAN and GUSHUE, JJ.A., of the Newfoundland Supreme Court, Court of Appeal.

On April 6, 1976, GUSHUE, J.A., delivered the following judgment of the Court:

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