Penvidic Contracting Co. v. International Nickel Co. of Canada Ltd.,

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Pigeon and de Grandpré, JJ.
• Citation: (1975), 4 N.R. 1 (SCC),[1976] 1 SCR 126,[1976] 1 SCR 386,1975 CanLII 6 (SCC),1975 CanLII 210 (SCC),1975 CanLII 209 (SCC),1975 CanLII 214 (SCC),1975 CanLII 172 (SCC),1975 CanLII 136 (SCC),53 DLR (3d) 748,[1976] 1 SCR 541,[1976] 1 SCR 588,[1975] CarswellOnt 299,[1976] 1 SCR 385,4 NR 1,[1976] 1 SCR 267
• Court: Supreme Court (Canada)
• Date: 28 January 1975

Penvidic Contracting Co. v. Intl. Nickel Co. (1975), 4 N.R. 1 (SCC)

MLB headnote and full text

Penvidic Contracting Co. Ltd. v. International Nickel Company of Canada, Ltd.

Indexed As: Penvidic Contracting Co. v. International Nickel Co. of Canada Ltd.

Supreme Court of Canada

Laskin, C.J.C., Judson, Spence,

Pigeon and de Grandpré, JJ.

January 28, 1975.

Summary:

This case arose out of a claim for damages for breach of a building contract by an owner. The plaintiff contractor agreed to lay railroad track and do the top ballasting for a railroad which the defendant owner constructed in Northern Manitoba. The plaintiff's tender and cost estimates were based on an assumption that the owner would provide a railroad connection and a properly graded road bed. In fact, the road bed was not properly graded and the railroad connection was not available to the plaintiff. The plaintiff used alternative but more costly methods in an attempt to complete the work on time. The trial court awarded the plaintiff $111,577.00 damages for breach of contract, after certain adjustments - see paragraph 1. The trial court stated that the defendant owner breached an implied term respecting site preparation by the owner.

On appeal to the Ontario Court of Appeal the appeal was allowed in part and the judgment against the owner was reduced by $55,642.00 because the plaintiff's claim was based in part on a new contract and the original contract had not been abandoned or abrogated - see paragraph 14.

On appeal to the Supreme Court of Canada the appeal was allowed in part and the judgment of the trial court in favour of the plaintiff for $111,577.00 was restored.

The Supreme Court of Canada stated that the plaintiff's claim was based not on a new contract but on the basis of damages for the breach of the original contract - see paragraph 25.

The Supreme Court of Canada allowed the plaintiff's claim for an additional 25 per ton for ballasting based on the testimony of an expert witness that such a claim was reasonable - see paragraphs 18 and 24.

The Supreme Court of Canada stated that difficulty in ascertaining the amount of the plaintiff's loss is no reason for not awarding substantial damages - see paragraphs 22 and 23.

Building Contracts - Topic 594

The contract - Implied terms - Site preparation by an owner - Contract to lay railroad track - The Supreme Court of Canada stated that the defendant owner breached an implied term respecting site preparation by failing to provide a railroad connection and a properly graded road bed - See paragraphs 16 to 19 - As a result of the breach the builder used alternative but more costly methods in an attempt to complete the work on time - The Supreme Court of Canada awarded the contractor $51,527.00 damages for breach of the implied term.

Damages - Topic 803

Assessment - Where ascertainment of loss is difficult - The Supreme Court of Canada stated that difficulty in ascertaining the amount of the loss is no reason for not awarding substantial damages - See paragraph 22 - The Supreme Court of Canada stated that a verdict which is a matter of guesswork will not be set aside where a judge or jury has done "the best it can" on the facts - See paragraph 23.

Damages - Topic 872

Assessment - Assessment of particular claims - Breach of contract - Assessment of damages for breach by an owner of a building contract to lay railroad track - The Supreme Court of Canada stated that ordinarily such an assessment would be based on proof of the additional costs incurred - The Supreme Court of Canada allowed the plaintiff's claim for an additional 25 per ton for ballasting based on the testimony of an expert witness that such a claim was reasonable - See paragraphs 18 and 24.

Cases Noticed:

Peter Kiewit Sons' Company of Canada Limited et al. v. Eakins Construction Limited, [1960] S.C.R. 361, dist. [para. 15].

British Westinghouse Electric and Manufacturing Company Limited v. Underground Electric Railways Company of London, Limited, [1912] A.C. 673, folld. [para. 21].

Chaplin v. Hicks, [1911] 2 K.B. 786, folld. [para. 22].

Wood v. Grand Valley Railway Company (1913-14), 30 O.L.R. 44, folld. [para. 22].

Counsel:

George D. Finlayson, Q.C., and Alan Lenczner, for the appellant;

Dennis Lane, Q.C., and John M. Roland, for the respondent.

This appeal was heard by the Supreme Court of Canada on November 13 and 14, 1974. Judgment was delivered by the Supreme Court of Canada on January 28, 1975.

The judgment of the Supreme Court of Canada was delivered by SPENCE, J.