Date: 19981009
Docket: T-2674-92
(A-874-96)
BETWEEN: LES ENTREPRISES A.B. RIMOUSKI INC.
and ALDÈGE BANVILLE
Plaintiffs
(Appellant)
AND: HER MAJESTY THE QUEEN
Defendant
(Respondent)
J U D G M E N T
DENAULT J.:
The action of the plaintiff Aldège Banville, as assignee of Les Entreprises A.B. Rimouski Inc., is dismissed, with costs.
PIERRE DENAULT
J.F.C.C.
Certified true translation
M. Iveson
Date: 19981009
Docket: T-2674-92
(A-874-96)
BETWEEN: LES ENTREPRISES A.B. RIMOUSKI INC.
and ALDÈGE BANVILLE
Plaintiffs
(Appellant)
AND: HER MAJESTY THE QUEEN
Defendant
(Respondent)
REASONS FOR JUDGMENT
DENAULT J.:
[1] On October 11, 1996, I dismissed the action of the plaintiff Aldège Banville on the ground that he had not proven any [TRANSLATION] "loss of contract, injury to reputation or loss of solvency" for which he blamed the defendant. This part of the decision was upheld on appeal before the Appeal Division of this Court. There is accordingly no reason to deal with this further here.
[2] In the same decision, I also dismissed the action of Aldège Banville as assignee of Les Entreprises A.B. Rimouski Inc. (Entreprises A.B.). This part of the action involved three heads of damages: No. 1, a first head under which the assignee of Entreprises A.B. claimed damages [TRANSLATION] ". . . for legal costs . . . [and] damages as a result of the defendant"s conduct; No. 2 , a second head under which he claimed damages [TRANSLATION] ". . . for loss of contract, injury to reputation and loss of solvency . . ."; No. 3 , a third head under which he claimed the balance of the amount1 withheld by the defendant on a contract which the latter terminated during its performance.
[3] The Court of Appeal allowed the appeal of the plaintiff-assignee on heads of damages Nos. 1 and 2 on the ground that this remedy for contractual liability was subject to a prescription of five years rather than two years. As for head of damages No. 3, namely the balance withheld by the defendant on the contract, the Court of Appeal considered that before examining the question of the validity of the transfers or assignments between the trustee in bankruptcy for Entreprises A.B. and the Caisse populaire Desjardins of St-Robert-de-Rimouski, and between the latter and Aldège Banville, the sole shareholder of the company, the Court first had to decide whether or not there was a debt owing to the company.
[4] In light of the Court of Appeal"s decision concerning these three heads of damages, I will deal with each one of them separately.
[5] Insofar as the plaintiff-assignee abandoned [it] in his reamended statement of claim for legal costs and damages as a result of the defendant"s conduct (head No. 1 ), this part of the action cannot be allowed, irrespective of the question of prescription, as no evidence was even adduced on this head of damages during the trial.
[6] As for the claim for " . . . loss of contract, injury to reputation and loss of solvency" (head No. 2 ), I already stated in the decision dated October 11, 1996, that nothing in the evidence indicated any injury to the reputation of Entreprises A.B. by the defendant or that its insolvency was attributable to an agent of the Crown. Even though the evidence indicates that Entreprises A.B. went bankrupt in February 1993, it was not however established that the company lost any contract that it sought by the act of a servant of the defendant. A mere allegation, without proof of fault, harm and a causal link between the parties, is not sufficient justification for an adverse judgment.
[7] As for head of damages No. 3, namely the balance withheld on the contract, after a thorough examination of the evidence, I consider that in the case at bar the defendant was justified in putting Entreprises A.B. in default to fulfill the contract for the demolition of the wharf at Cap-Chat in accordance with the plans and specifications and to notify the surety company to have the work finished.
[8] The plans and specifications did in fact adequately describe both the boundaries of the demolition of the wharf, which were established from the original plan of the wharf and the plan of the wharf as it was built, and the boundaries for excavation both for the removal of the wharf itself and for the removal of the debris nearby.
[9] The evidence further indicated that 1) in its bid, Entreprises A.B. underestimated the quantity of material to be excavated; 2) it did not have the necessary equipment to dig to the desired depth - at the beginning of the work it was using only a John Deere 892 D-LC excavator; and 3) the company did not remedy the shortcomings identified during the performance of the contract, despite being duly notified to do so.
[10] Moreover, the dive reports, underwater photographs and video filmed after Entreprises A.B. left the job site, as well as the large amount of debris removed from the sea floor by the firm Verreault Navigation, which was hired by the surety to complete the contract, amply demonstrate that Entreprises A.B. did not perform all of the work specified in the contract. Under the circumstances, the defendant was justified in withholding the balance under the contract, namely $218,122.25, and turning to the surety to have the work completed.
[11] The plaintiff"s action as assignee of Les Entreprises A.B. Rimouski Inc. must accordingly be dismissed with costs.
PIERRE DENAULT
J.F.C.C.
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-2674-92
| STYLE OF CAUSE: Les Entreprises A.B. Rimouski Inc. and Aldège Banville |
- and- Her Majesty the Queen
PLACE OF HEARING: Without appearances
REASONS FOR JUDGMENT: Denault J.
DATED: October 9, 1998
APPEARANCES
Aldège Banville FOR THE PLAINTIFF
Stéphane Lilkoff FOR THE DEFENDANT
SOLICITORS OF RECORD
Aldège Banville FOR THE PLAINTIFF
Rimouski, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
__________________1 Entreprises A.B. originally claimed $218,122.55 on the contract of $489,491.00, which it later reduced to $163,591.91 because of the assignment of part of its debt to the Caisse populaire Desjardins of Saint-Robert-de-Rimouski.