Expeditors Canada Inc v Stack Modular Corporation, 2017 ABQB 122

Court of Queen’s Bench of Alberta Citation: Expeditors Canada Inc v Stack Modular Corporation, 2017 ABQB 122 Date: 20160222 Docket: 1603 10638 Registry: Edmonton Between: Expeditors Canada Inc Plaintiff - and - Stack Modular Corporation Defendant _______________________________________________________ Memorandum of Decision of L.A. Smart , Master in Chambers _______________________________________________________ Background [ 1 ] Expeditors Canada Inc. (Expeditors) applies for

summary judgment against Stack Modular Corporation (Stack) for shipping costs of six modular building units from Shanghai, China to Conklin, Alberta. Expeditors provided a quote for the services of $110,818.65 US. The units were packaged and delivered to Shanghai by Dunn Global for the shipping on behalf of Stack. Stack warranted that the transport units were properly loaded and suitable for the carriage. [ 2 ] A Quote dated December 11, 2015 provided that storage, demurrage, detention and other costs incurred beyond Expeditors control was not included in the quotation.

Following the Quote there was a series of emails exchanged between Stack and Expeditors discussing among other things whether the quote was an all-in price. The response was that it was all in for transportation “but any

factors like loading/unloading time or waiting time for trucks at port are billed additional as per the terms of the quote”. [ 3 ] In addition to the Quote a General Agency Agreement And Power Of Attorney With Power To Appoint A Sub-Agent was executed by Stack on December 18, 2015. This Agreement refers to and incorporates by reference the Standard Terms and Conditions of Expeditors Canada, Inc. which included restrictions and limitations on liability. It is acknowledged in the Agreement that they are subject to those standard terms and they are in receipt of it.

Its terms are subject to change only by written notice received from Expeditors and include a provision that Stack shall pay all sums immediately when due without reduction or deferment on account of any claim, counterclaim or set off. It also provides that Stack will indemnify Expeditors against all duties and taxes imposed. [ 4 ] When the containers arrived at the port of Vancouver the units had been damaged in transit as a result of alleged defective packaging.

Significant water damage was noted inside all units ostensibly due to a storm at sea and from being exposed to the elements and rain in Vancouver for several days while a solution was worked out to get them to Conklin. When the units arrived in Conklin it is alleged that straps placed across the top of each unit caused significant damage to the cladding of the units. In addition one unit was dropped off of the back of a truck causing damage inside that unit due to the ceiling being bent down by the force of the drop.

Although all of the information has yet to be collected, Stack says that as a consequence of the damages and delay they have thus far identified additional costs of $150,451.83 CDN. [ 5 ] Expeditors invoiced Stack $192,581.61 CDN which included a charge of $17,586.34 for duty. After deduction of the duty the remaining amount of the invoice would appear to exceed the Canadian equivalent of the Quote by approximately $30,000. No explanation was given for this additional amount. Expeditors also invoiced Stack for demurrage of $32,701.17.

Presumably these were amounts charged to Expeditors while the units were at the port of Vancouver although no evidence of that has been provided. Stack although not expressly saying so appears to attribute some or all of these demurrage costs to delay caused by Expeditors. Discussion [ 6 ] In determining whether or not

summary judgment ought to be granted, I must firstly consider whether or not a fair and just determination can be made on the factual record ( WP v Alberta , 2014 ABCA 404 ). Expeditors takes the view that the written agreements with Stack preclude any ability on the part of Stack to purport to set off or delay payment. There is considerable legal authority supporting that proposition. Stack argues that the restrictions and limitations contained in the written materials were not clearly drawn to their attention and that regardless the email exchange limited their liability in any event to the amount quoted.

In my view it is doubtful that the liability of Stack is limited to the amount quoted simply based on the email exchange. [ 7 ] Regardless, Expeditors must establish entitlement to the amounts invoiced. Based on the Agreement it would seem that judgment in the amount of the Quote and for the duty that was plainly paid on Stacks behalf ought to flow. The difficulty is that there is no evidence to support the amount claimed for duty and other amounts included in the invoice. The extent of and responsibility for demurrage payable is also in dispute.

Uncertainty also flows from invoicing in Canadian dollars when the quote was in US dollars. Decision [ 8 ] Based on the existing record I am not satisfied it is proper to grant

summary judgment for any amount. As a consequence, I do not need to consider whether enforcement of any judgment or partial judgment ought to be stayed pending the determination of the counterclaim and other amounts in dispute. Expeditors is at liberty to reapply with further evidence. Upon my review of the materials filed and the arguments made, I direct that the respective parties bear their own costs of this application. Dated at the City of Edmonton, Alberta this 22 nd day of February, 2017. L.A. Smart M.C.Q.B.A. Appearances: Charles P. Russell QC of McLennan Ross LLP for the Plaintiff

Randolph Langley of Henning Byrne LLP for the Defendant