



COURT OF APPEAL FOR ONTARIO

CITATION: Hydro Hawkesbury v. ABB Inc., 2020
    ONCA 53

DATE: 20200128

DOCKET: C67238

Hoy A.C.J.O., Doherty J.A. and
    Marrocco A.C.J. (
ad hoc
)

BETWEEN

Hydro
    Hawkesbury

Plaintiff

and

ABB Inc.
and
Pioneer Transformers Ltd.

Defendants (
Appellant
/
Respondent
)

Tara L. Lemke, for the appellant

Jacqueline Horvat and Alexandria Chun, for the
    respondent

Heard and released orally: January 16, 2020

On appeal from the order of Justice Robert Pelletier of the Superior
    Court of Justice, dated June 26, 2019, with reasons reported at 2019 ONSC 3930.

REASONS
    FOR DECISION


[1]

The appellant appeals the motion judges stay of
    crossclaims between it and its co-defendant, the respondent ABB AB. In its
    crossclaims against ABB, the appellant seeks consequential damages arising as a
    result of a defective tap changer manufactured by ABB, supplied to the
    appellant, and included in a transformer the appellant sold to Hydro Hawkesbury.
    The transformer failed because of the defective tap changer and the motion
    judge granted Hydro Hawkesbury summary judgment against the appellant for
    breach of contract.

[2]

The appellants also appealed from that judgment,
    and we have provided separate reasons for dismissing that appeal.

[3]

After granting Hydro Hawkesburys motion for summary
    judgment against the appellant, the motion judge stayed the crossclaims because
    he found that the standard terms and conditions referred to as Orgalime
    applied to ABBs supply of the tap changer to the appellant. Those terms included
    clauses requiring that disputes between the appellant and ABB are to be resolved
    under the Rules of Arbitration of the International Chamber of Commerce and
    clauses governing substantive law, and  most significantly  excluding
    liability for consequential loss.

[4]

On appeal, the appellant argues that the motion
    judge erred in concluding that Orgalime applied. Relying on
Tilden Rent-a-Car
    Co. v. Clendenning
, 18 O.R. (2d) 601
,
    the appellant argues that ABB was required to specifically bring these clauses in
    Orgalime to its attention and failed to do so.

[5]

The motion judge considered
Tilden
and concluded
    that proper notice and tacit acceptance of the General Conditions were present
    when [the appellant] accepted the terms of the tap changers delivery by ABB:
    at para. 14. We are not persuaded that there is any basis to interfere with his
    conclusion.

[6]

We agree with the motion judge that this case is
    different from
Tilden
.

This is not a case where the signing
    party could not reasonably have been expected to read the contract before
    signing it. As the motion judge noted at paras. 8-10, the appellant was a
    fairly sophisticated corporate consumer and the Orgalime terms and
    conditions, which were readily available, were specifically referred to in two
    documents creating the contractual relationship between the appellant and ABB.
    The two documents were dated two weeks apart and the appellant confirmed the
    second document three days after receiving it. In the circumstances of this
    case, a fairly sophisticated corporate consumer doing business with a foreign
    supplier of electrical components in international markets would reasonably be
    expected to have reviewed the terms of both documents and would expect clauses
    of the type contained in Orgalime.

[7]

Given that Orgalime applies, arbitration was the
    appropriate dispute resolution mechanism, and the motion judge properly stayed
    the action. We note that because the clause in Orgalime excluding liability for
    consequential loss applies whether or not the dispute is resolved by arbitration,
    the appellant did not pursue its argument that ABB was precluded from invoking
    the arbitration clause because of its delay in doing so.

[8]

Accordingly, the appeal is dismissed.

[9]

ABB is entitled to its costs of the appeal,
    fixed in the amount of $5,000, inclusive of HST and disbursements.

Alexandra
    Hoy A.C.J.O.

Doherty
    J.A.

Marrocco
    A.C.J.S.C. (
ad hoc
)


