2012 NLCA 45, 2012 NLCA 45

Date: 20120712 Docket: 07/42 Citation: Eco Zone Engineering Limited v. Grand Falls-Windsor (Town) , 2012 NLCA 45 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : ECO ZONE ENGINEERING LIMITED APPELLANT AND : THE TOWN OF GRAND FALLS-WINDSOR and THE TOWN OF BISHOP FALLS, carrying on business under the name of EXPLOITS REGIONAL SERVICES BOARD FIRST RESPONDENT AND : NEWFOUNDLAND ASSOCIATES LIMITED and WILLIAM NOSEWORTHY SECOND RESPONDENT (DISCONTINUED) Coram: Welsh, Rowe and Hoegg JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General Division) 199601T0167 Application Heard: June 15, 2012 Decision Rendered: July 12, 2012 Reasons for Judgment by Rowe J.A. Concurred in by Welsh and Hoegg JJ.A. Counsel for the Appellant: Ronald S. Noseworthy Q.C.

Counsel for the First Respondent: John Hogan Rowe J.A.: INTRODUCTION [1] On February 14, 2012, this Court issued a decision in the appeal involving Eco Zone and the Town of Grand Falls-Windsor(2012 NLCA 7). Eco Zone has applied to have the Court correct an apparent error in the date specified for termination of the contractbetween the parties. As well, Eco Zone has raised further issues regarding

interpretation of the contract which it submits should havebeen considered by the Court. FACTS [2] This case relates to a 1992 contract for construction by Eco Zone of a waste water treatment facility in Grand Falls-Windsor(the Town). After the Town terminated the contract in 1995, Eco Zone claimed against the Town and the Town counterclaimed againstEco Zone. Following a lengthy trial (200 days), the trial judge awarded a sum to Eco Zone that was far less than Eco Zone had claimed. [3] Eco Zone appealed a wide range of findings of fact and law by the trial judge.

Paragraph 81 of the appeal decisionsummarizes the result: The appeal is dismissed save in one respect. The trial judge erred in law in setting the starting date for the period the Town is to becompensated for its additional engineering costs at the original contract completion date of June 15, 1994; rather that period should startat termination of the contract on September 8, 1995.

The award to the Town for engineering costs is reduced in the manner described inpara. 33. [4] Paragraph 33 of the appeal decision reads: [T]he award for “additional [engineering] services” will be for the period from termination of the contract on September 8, 1995 tocompletion of the project in April 1996.

The award to the Town for engineering costs should be reduced by subtracting from itengineering costs for the period June 15, 1994 to September 7, 1995. [5] Counsel for Eco Zone points out, and counsel for the Town agrees, that the trial judge found that the contract was terminatedon October 16, 1995, rather than September 8, 1995. He submits that it was the manifest intention of this Court to set thecommencement of the award of engineering costs at the date of termination of the contract.

This is correct. (This has the result ofreducing the Town’s damages under its counterclaim against Eco Zone.) Pursuant to rule 15.07 of the Rules of the Supreme Court, 1986,I would correct the date of termination of the contract to be October 16, 1995 and paragraphs 33 and 81 of the appeal decision areamended accordingly. [6] In its application, Eco Zone seeks to have this Court revisit: the Town’s claim for additional engineering services; Eco Zone’sclaim for interest; the filter tile issue; and Change Orders 1, 2 and 6. [7] In regard to the Town’s claim for additional engineering services, Eco Zone applies to add to the record before this Court thetranscript of a witness whose testimony related to this claim.

Eco Zone also applies to add to the record before this Court correspondencedated April 11, 2003 from the engineering firm to the Town, in which is stated an estimate of the cost of extra services, and advises thatan invoice for such services will be forthcoming. Counsel for Eco Zone conceded that this transcript and the correspondence were part ofthe trial record. Had Eco Zone considered that these items were relevant or necessary for the appeal, they should have been included inthe record for the appeal, and brought to this Court’s attention.

The appeal having been heard and a decision rendered, the time forconsideration of these items has passed. Eco Zone also requested that this Court order production of the invoice, if it exists, referred to inthe letter. Again, the time for production of this invoice has passed. The letter, which referred to the invoice, was part of the record.

Had Eco Zone wished to obtain the invoice for purposes of the trial or the appeal, that is when the request should have been made. [8] The grounds on which Eco Zone seeks to have this Court revisit the interest issue, the filter tile issue and change orders 1, 2and 6, would involve reinterpretation of the contract and reconsideration of the trial judge’s factual findings. These issues were arguedon appeal and this Court rendered its decision on each of them. [9] In effect, Eco Zone seeks to have this Court sit on appeal of its own decision (as well as order further document production). That is not our role.

As the Town aptly puts it, if Eco Zone maintains this Court has erred, it must appeal to a higher authority. [10] I would note what Gushue, C.J.N. wrote in Marley Construction Limited v. Mount Pearl (City) (1996), (NLCA), 147 Nfld. & P.E.I.R. 191 (Nfld. C.A.): [4] Rule 15.07 grants to the court the power to correct clerical mistakes or any error arising from an accidental mistake or omissionwhich may occur in a judgment. As well, the rule grants the court jurisdiction to vary a decision where a matter should have beenadjudicated upon, but was not.

There is further an inherent jurisdiction in the court to correct or set aside, “ex debito justitiae”, a decisionthe fundamental basis for which is found to be lacking, e.g., where an appeal has not been heard on its merits but struck out for non-appearance of the appellant when, in fact, the appellant was not properly served.

It must, however, be emphasized that the court has noauthority to re-open a judgment, or an issue in a judgment, where there has been a decision on the merits of the case and it is such that isunder challenge. [5] Even where the jurisdiction is found to exist, the power of the court to set aside should be exercised only in an exceptionalcase. We are not satisfied that this is such a case because the decision was rendered for the reasons given and is supported by thosereasons. Neither, in the circumstances was it in our view necessary to deal with every issue raised by counsel at trial.

Further, and mostsignificantly, the applicant appears to allege errors of law on the part of the court in that findings in the decision which are concernedwith the merits of the appeal itself are now questioned. There is no doubt that we may not correct a mistake of our own in law. Whether

such mistake was made, as is alleged, is for a higher court to determine. (Emphasis added.) See also MacLean v. Carr Estate (1996), (NL CA), 142 Nfld. & P.E.I.R. 25 (Nfld. C.A.) paras. 8 and 16-18 andBeanland v. Beanland (1997), (NL CA), 151 Nfld. & P.E.I.R. 51 (Nfld. C.A.) paras. 41-42. [11] Finally, for the reasons set out above, neither does rule 15.09 give this Court the authority to grant Eco Zone’s request. Rule15.09 applies to appeals and incorporates the powers of amendment that apply to an application at the trial level. CONCLUSION [12] The application is granted in part.

Pursuant to rule 15.07, the date of termination of the contract between the Town and EcoZone, as set out in paragraphs 33 and 81 of appeal decision 2012 NLCA 7, is corrected. References to “September 8, 1995” in thoseparagraphs shall be deleted and “October 16, 1995” substituted. In paragraph 33, the reference to “September 7, 1995” shall be deletedand “October 15, 1995” substituted. In other respects the application is denied. [13] Regarding costs, Eco Zone achieved partial success in that the termination date of the contract was adjusted.

However, the bulkof Eco Zone’s application sought to have this Court revisit much of its previous decision. In this, Eco Zone failed. Taking these factorsinto account, the Town will have its costs from Eco Zone, on a party and party basis, reduced by one-third to reflect Eco Zone’s successon the matter of the termination date. _______________________________ M. H. Rowe J.A. I Concur: __________________________ B. G. Welsh J.A. I Concur: __________________________ L. R. Hoegg J.A.