Timberline Haulers Ltd. and Norwood Disposal Ltd. v. Grande Prairie (City), (1988) 89 A.R. 188 (QB)

• Judge: Berger, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 03, 1988
• Citations: (1988), 89 A.R. 188 (QB)

Timberline Haulers v. Grande Prairie (1988), 89 A.R. 188 (QB)

MLB headnote and full text

Timberline Haulers Ltd., operating as Norwood Disposal and Norwood Disposal Ltd. (plaintiffs) v. City of Grande Prairie (defendant)

(No. 09463)

Indexed As: Timberline Haulers Ltd. and Norwood Disposal Ltd. v. Grande Prairie (City)

Alberta Court of Queen's Bench

Judicial District of Grande Prairie

Berger, J.

May 3, 1988.

Summary:

A garbage contractor brought an action for damages against the City of Grande Prairie for breach of an agreement which allegedly gave the contractor an exclusive franchise to collect and dispose of all garbage within the city.

The Alberta Court of Queen's Bench dismissed the action. The court held that although the city had the authority to grant an exclusive franchise, the agreement and bylaw in question did not do so. Alternatively, if the contractor had an exclusive franchise it would be disentitled to damages for failing to mitigate its loss.

Damages - Topic 1042

Mitigation - In contract - Reasonable remedial measures - What constitute - A garbage contractor brought an action for damages against the city for breach of an agreement which allegedly gave the contractor an exclusive franchise to collect and dispose of all garbage within the city - The contractor sat back and failed to seek injunctive relief to prevent other contractors from interfering with its exclusive rights - The Alberta Court of Queen's Bench held that if the city were liable for breach of the agreement, it would not award damages, because the contractor failed to take reasonable remedial measures to mitigate its loss - See paragraphs 54 to 55.

Municipal Law - Topic 2445

Contracts by municipality - Contracts to provide services - Garbage collection - A garbage contractor submitted that an agreement with the City of Grande Prairie gave it the exclusive franchise to collect and dispose of all garbage within the city - The Alberta Court of Queen's Bench interpreted the contract and held that it did not give the contractor an exclusive franchise - The court noted that the contract did not require the city to interfere with any arrangement made by commercial businesses with a competitor of the contractor - See paragraphs 41 to 46.

Municipal Law - Topic 3740

Bylaws - Construction or interpretation - Bylaws granting franchises, permits or other special privileges - The Alberta Court of Queen's Bench referred to the statement that "bylaws granting franchises, permits and other special privileges are to be construed most strongly against the grantee and liberally in favour of the public since only those granted in clear and specific terms pass by grant" - See paragraph 33.

Municipal Law - Topic 3768

Bylaws - Scope of - Garbage collection bylaw - Section 199 of the Municipal Government Act authorized the enactment of a bylaw establishing and maintaining a system of garbage collection - The Alberta Court of Queen's Bench held that s. 199 empowered a municipality to grant to one person an exclusive right to collect and dispose of all garbage within the municipality - See paragraphs 21 to 31.

Cases Noticed:

Tower Company (1961) Ltd. v. Frobisher Bay, Village of (334) (1979), 29 A.R. 594, refd to. [para. 26].

Rex v. Bell, [1929] 2 W.W.R. 337, consd. [para. 31].

Jones v. City of Ottawa, Re (1907), 9 O.W.M. 223, consd. [para. 31].

Stronach, Re, [1928] 3 D.L.R. 216 (Ont. C.A.), refd to. [para. 34].

Carter and Sudbury, Re, [1949] 3 D.L.R. 756 (Ont. H.C.), refd to. [para. 34].

New Brunswick Power Co. v. Maritime Transit Ltd., [1937] 4 D.L.R. 376 (N.B.C.A.), refd to. [para. 50].

Arseneau v. LeBlanc (1952), 45 M.P.R. 173 (N.B.C.A.), refd to. [para. 50].

Toronto Transit Commission v. Aqua Taxi Ltd. (1957), 6 D.L.R.(2d) 721 (Ont. S.C.), refd to. [para. 50].

Ottawa-Carleton Regional Transit Commission v. Gala Hospitality (1982), 19 M.P.L.R. 153 (Ont. Co. Ct.), refd to. [para. 50].

Pilkington v. Wood, [1953] 2 All E.R. 810, refd to. [para. 50].

Bailey v. Ornheim (1962), 35 D.L.R.(2d) 402 (B.C.S.C.), refd to. [para. 50].

Baud Corp., N.V. v. Brook; Asamera Oil Corp. Ltd. v. Sea Oil and General Corp. and Baud Corp., N.V. (1978), 23 N.R. 181; 12 A.R. 271 (S.C.C.), refd to. [para. 50].

Ferris v. Rusnak (1984), 50 A.R. 297 (Q.B.), refd to. [para. 50].

Spike v. Rocca Group Ltd. and Muise (1980), 29 Nfld. & P.E.I.R. 1; 82 A.P.R. 1 (P.E.I.S.C.), refd to. [para. 52].

Banco de Portugal v. Waterlow and Sons Ltd., [1932] A.C. 452 (H.L.), refd to. [para. 53].

Statutes Noticed:

City of Grande Prairie Bylaws, Bylaw C-293 [para. 9].

Municipal Government Act, R.S.A. 1980, c. M-26, sect. 199(b), sect. 199(c), sect. 199(e), sect. 199(f) [para. 24].

Authors and Works Noticed:

Black's Law Dictionary (4th Ed.) [para. 36].

Canadian Law Dictionary (1980) [para. 37].

Rogers, The Law of Canadian Municipal Corporations (2nd Ed.), pp. 309 [paras. 21, 22]; 472 [para. 32]; 473 [para. 33]; 1098 [para. 47].

Counsel:

Ian H. Baker, for the plaintiff;

P.G. Sully, for the defendant.

This action was heard before Berger, J., of the Alberta Court of Queen's Bench, Judicial District of Grande Prairie, who delivered the following judgment on May 3, 1988: