2019 NLCA 15, 2019 NLCA 15

Central Disposal Services Limited (appellant) v. Pardy’s Waste Management and Industrial Services Limited (respondent) (17/87) Indexed As: Central Disposal Services Limited v. Pardy’s Waste Management and Industrial Services Limited 2019 NLCA 15 4 C.A.N.L.R. 227 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh, White JJ.A. March 20, 2019

Summary: The respondent entered a contract with a third party company to provide waste management services. The respondent then engaged the appellant as a subcontractor. The respondent terminated that contract without justification. The appellant sued the respondent, arguing that it was entitled to damages for the breach. Despite the contract containing a date for termination, the appellant argued that because the contract between the respondent and third party company had been extended, the subcontract, had it not been unjustifiably terminated, would also have been extended past the written termination date. In a

summary trial, the trial judge rejected that submission and found the appellant was only entitled to damages for breach of contract up until the written date of termination. The appellant appealed arguing the judge had erred in that determination and that the matter was not suitable for

summary trial. Held: Appeal dismissed. Welsh J.A. ( Fry C.J.N.L. and White J.A. concurring): The judge did not err in determining what the termination date of the contract would have been but for the breach.

Summary trial is appropriate where the Court decides that there is a genuine issue with respect to a claim or defence. A judge may grant judgment in favour of any party, either upon an issue or generally, unless the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide the questions of fact or law; or it would be unjust to decide the issues on the application. The trial judge was satisfied that this was an appropriate case for a

summary trial. He found that the affidavit evidence, on which each party cross-examined, provided the basis on which he could make the necessary findings of fact. He then proceeded to apply the law to the facts. There is no basis on which to conclude that the trial judge erred in the exercise of his discretion to proceed by way of a

summary trial. Cases cited: Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87 Rubens v. Sansome , 2017 NLCA 32 Counsel: R. Paul Burgess Q.C., for the appellant; Twila E. Reid, for the respondent. This appeal was heard on January 21, 2019 before Fry C.J.N.L., Welsh and White JJ.A.

The following judgment was filed on March 20, 2019 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] Pardy’s Waste Management and Industrial Services Limited (“Pardy’s”) contracted with Lockerbie & Hole Eastern Inc. (“Lockerbie”) to provide waste management services at the Vale Long Harbour site. Pardy’s then entered into a subcontract with Central Disposal Services Limited (“Central Disposal”). Pardy’s subsequently terminated the subcontract without justification. At issue in this appeal is whether the judge, on a

summary trial, erred in interpreting the contract for purposes of determining the date on which the contract, had it not been breached, would have terminated. Also at issue is whether the matter was suitable for disposition by

summary trial. [ 2 ] Central Disposal’s claim that its relationship with Pardy’s was a partnership or joint venture was rejected by the trial judge, and has not been appealed. Further, the judge concluded that the contract between Pardy’s and Central Disposal was terminated by Pardy’s without justification. That determination also has not been appealed. [ 3 ] The remaining issue, which is the focus of this appeal, is the date of termination of the contract between Pardy’s and Central Disposal.

Central Disposal submitted that, when the contract between Pardy’s and Lockerbie was extended, the subcontract between Pardy’s and Central Disposal, properly interpreted, was also extended.

The judge rejected that submission and concluded that Central Disposal was entitled to damages for breach of contract only until June 15, 2012, the termination date specified in the contract. [ 4 ] For the reasons stated by the trial judge, I would dismiss Central Disposal’s submission that its contract with Pardy’s was not terminated on June 15, 2012 and that its entitlement to damages extended beyond that date (2017 NLTD(G) 77). [ 5 ] Central Disposal also submits that this was not an appropriate case for disposition by

summary trial. Pursuant to rule 17A.01 of the Rules of the Supreme Court, 1986 : A plaintiff or a defendant may, after defence has been filed and at any time prior to the proceeding being placed on a trial list, apply to the Court with supporting affidavit material or other evidence for

summary trial seeking judgment on or dismissal of all or part of the claim in the statement of claim, as the case may be. [ 6 ] Rule 17A.03(2) provides for disposition of a claim by means of a

summary trial: Where the Court decides that there is a genuine issue with respect to a claim or defence, a judge may nevertheless grant judgment in favour of any party, either upon an issue or generally, unless (

a) the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide the questions of fact or law; or (

b) it would be unjust to decide the issues on the application. [ 7 ] The use of a

summary trial procedure is discussed in Hyrniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87 . Karakatsanis J., for the Court, explained: [4] In interpreting these provisions, the Ontario Court of Appeal placed too high a premium on the “full appreciation” of evidence that can be gained at a conventional trial, given that such a trial is not a realistic alternative for most litigants. In my view, a trial is not required if a

summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. [5] To that end, I conclude that

summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. See also: Rubens v. Sansome , 2017 NLCA 32 , at paragraphs 27 to 29 . [ 8 ] In this case, the trial judge was satisfied that this was an appropriate case for a

summary trial. He found that the affidavit evidence, on which each party cross-examined, provided the basis on which he could make the necessary findings of fact. He then proceeded to apply the law to the facts. It is clear from reading the decision as a whole that the judge was satisfied that there was no necessity for a full trial in order to fairly and justly decide the issues raised by Central Disposal, with the exception of an assessment of damages: [71] … In the absence of a problem with the services provided, Central was entitled to the benefits of the contract until June 15, 2012.

While work continued during that period, it was only for the purpose of “winding down” Central’s involvement. I take it that as a result, it would have lost some revenue during that period. Since no evidence was presented to enable an assessment of its losses for that period, I can only order leave to seek assessment of damages, which would have to take into account what Central could have expected had the contract terminated on the date set out therein.

In addition, the actual revenue it received during that period would be considered. … [73] On this issue, while I find there is a genuine issue for trial, I also find that there was sufficient evidence before me to enable a determination of the merits of the claim of Central. Accordingly, I find that, with the exception of Central’s claim for loss of revenue

between May 4 and June 15, 2012, its claim for damages against Pardy’s for termination must fail. I will order the parties have leave to seek assessment of those damages should they be unable to reach agreement. [ 9 ] There is no basis on which to conclude that the trial judge erred in the exercise of his discretion to proceed by way of a

summary trial.

SUMMARY AND DISPOSITION [ 10 ] For the reasons of the trial judge, I would dismiss the appeal with costs under column 3 of the scale of costs in the Court of Appeal Rules . The trial judge’s order granting the parties leave to seek an assessment of damages in that Court remains in force. Appeal dismissed.