



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:



Pemberton Benchlands
  Housing Corporation v. Sabre Transport Ltd.,









2009 BCCA 30




Date: 20090130

Docket: CA035912

Between:

Pemberton Benchlands
Housing Corporation

Appellant

(
Plaintiff
)

And

Sabre Transport Ltd.

Respondent

(
Defendant
)




Before:



The Honourable Madam
  Justice Levine





The Honourable Mr. Justice
  Tysoe





The Honourable Madam
  Justice D. Smith









J.A. Henshall



Counsel for the Appellant





J.R. White



Counsel for the Respondent





Place and Date of Hearing:



Vancouver
, British Columbia






January 9, 2009





Place and Date of Judgment:



Vancouver
, British Columbia






January 30, 2009









Written Reasons by
:





The Honourable Madam
  Justice Levine





Concurred in by:





The Honourable Mr. Justice
  Tysoe

The Honourable Madam Justice
  D. Smith




Reasons for Judgment
of the Honourable Madam Justice Levine:

Introduction

[1]

The appellant, Pemberton
Benchlands Housing Corp. (PBH), appeals from the order of Ehrcke J.,
following a summary trial under Rule 18A, dismissing its action against the
respondent, Sabre Transport Ltd. (Sabre).  (His reasons for judgment may be
found at 2008 BCSC 294.)

[2]

PBH sought a declaration that it
had entered into a fixed price construction contract with Sabre, specific
performance of the contract, and in the alternative, damages in lieu of
specific performance for breach of contract.  The trial judge found that PBH
had not established that the parties had entered into a fixed price
construction contract.  PBH claims on appeal that the trial judge erred in his
substantive conclusions, and in summarily dismissing its action.

[3]

In my opinion, the appellant has
not raised any reviewable error.  As further explained in the reasons that
follow, I would dismiss the appeal.

Background

[4]

PBH was incorporated in April 2003
to carry out a joint venture to acquire and develop lands near Pemberton, British Columbia.  Its shareholders were Glacier Creek Development Corporation
and Whistler Service Park Ltd., each owning 50 per cent.  Glacier was owned by
Mr. Serge Côté, and Whistler was owned by Mr. Art Den Duyf, who also owned the
respondent, Sabre.  Glacier was a real estate development company, and Sabre
provided road and civil construction services.  The dispute in these
proceedings concerned the terms and price under which Sabre was to provide site
servicing for the development.

[5]

PBH claimed that the construction
contract was partly written and partly oral.  It alleged that the written terms
were included in two documents:  a CCDC2 form of construction contract
together with an attached 20-page document (referred to by the trial judge as
the Tabulation), or alternatively, only in the Tabulation, which provided for
a fixed price of $2,859,765.  One of the alleged oral terms was that the
contract included a contingency reserve of $500,000.

[6]

In defence, Sabre claimed it
agreed to provide construction services under an oral or implied contract for
time and materials.  It counterclaimed for judgment for $3,351,542.42 for
contract work completed up to May 31, 2005, plus additional amounts for work
completed after that date.

[7]

Sabre applied under Rule 18A for
an order dismissing PBHs action, or alternatively, dismissing PBHs claim that
the parties had entered into a fixed price contract, and for leave to proceed
with its counterclaim.

[8]

The only issue on the summary
trial was whether the construction contract was for a fixed price of $2,859,765
plus a contingency reserve of $500,000.  The trial judge dismissed PBHs
action, and gave leave to Sabre to proceed with its counterclaim.

Reasons for Judgment

[9]

The trial judge considered the two
documents PBH alleged contained the written terms of the contract.  He found
(at para. 24) that the CCDC2 form was not part of any contract between PBH and
Sabre, based on the evidence of Mr. Côté.  Mr. Côté was the president and a
director of PBH.  He testified that he did not know if Mr. Den Duyf had signed
the document, although his signature appeared on it; the CCDC2 form was not
agreed to by PBH and Sabre; and PBH had not used it as a contract.  There was
evidence that Mr. Den Duyfs signature on the CCDC2 form was forged (at para.
22).

[10]

The trial judge then considered
the Tabulation, which he described as follows (at paras. 18-19):

The
second part of Document 345 is an appended 20-page list of construction items
and prices.  For convenience I shall refer to this second part of Document 345
as the Tabulation.  On its first page, it has the heading:

Sabre
Transport

Project:
Pemberton Benchlands, Pemberton, B.C.

Construction
Contract

Authorized
Signature: Pemberton Benchlands Housing _____

Authorized
Signature: Sabre Transport _____

Job
No. 416

December
8, 2003

It then lists in detail items of work, materials and
prices under various sections such as Storm Sewer, Sanitary Sewers,
Waterworks, Roadworks, and so on.  On the bottom of the last page is a
total of the earlier sections, with the words, Construction Cost Summary
$2,859,765.

[11]

The trial judge summarized PBHs
argument that the Tabulation contained the written terms of a fixed contract (at
para. 27):

In support of its theory that the Tabulation contains
the written terms of a fixed price contract, the plaintiff relies on the
following facts:  the Tabulation is headed Construction Contract; it is
signed by Dave Paterson next to the words, Authorized Signature:  Sabre
Transport; it itemizes the work to be done; and the final words on the last
page are Construction Cost Summary $2,859,765.

[12]

Sabres submissions were as
follows (summarized at para. 33):

The defendant counters with the following
submissions:  first, that Dave Paterson did not sign the Tabulation as a
construction contract; second, that even if he did sign it as a contract, he
had no authority to bind Sabre because only Art Den Duyf, as its president,
could do that; third, that even if the Tabulation was a binding contract, the
fact that it consists merely of a twenty-page list of work and prices without
any specific contractual terms demonstrates on its face that it is a time and
materials contract, not one for a fixed price; and finally, the defendant
submits that the conduct of the parties is inconsistent with the existence of a
fixed price contract.

[13]

After reviewing the evidence
surrounding the creation of the Tabulation and the circumstances under which it
was signed by Mr. Paterson, the trial judge found (at para. 40):

The plaintiff relies on the Tabulation as being the
written portion of a fixed price contract that was partly written and partly
oral.  It is clear that Mr. Côté signed that document on behalf of PBH and that
Mr. Paterson, the project manager for Sabre, signed it on the line beside the
words Authorized Signature: Sabre Transport.

[14]

The trial judge noted (at para.
41) that there was fundamental divergence in the evidence about what was said
and done when the document was signed.  PBHs representatives, Mr. Côté and
Mr. Prall, maintained that Mr. Paterson agreed on behalf of Sabre to the price
for the civil work at $2,859,765.  Mr. Patersons evidence was that when
signing the Tabulation he made it clear to Mr. Côté that it was not a contract
and that the $2.85 million was not a contract amount.

[15]

The trial judge accepted Sabres
submissions that it should nonetheless succeed on the summary trial on the
ground that even if Mr. Paterson thought he was signing a contract (which he,
of course, denies), he had no authority to bind Sabre, and therefore, the
Tabulation is not a contract between PBH and Sabre (para. 42).

[16]

The trial judge found (at para.
43) that Mr. Den Duyfs uncontradicted evidence was clear that Mr. Paterson
did not have authority to sign the document on behalf of Sabre.  He concluded
that Mr. Paterson had no actual authority to sign the Tabulation as a contract
binding on Sabre.

[17]

He went on to reject PBHs
argument that Mr. Paterson had apparent authority to sign the Tabulation as a
contract enforceable against Sabre.  He noted that PBH did not develop the
argument or provide any authorities.  He analyzed the issue and concluded (at
paras. 45-46):

In
Rockland Industries, Inc. v. Ameranda Minerals Corp.
of Canada
, [1980] 2 S.C.R. 2, the Supreme Court of Canada referred to the
criteria set out in
Freeman & Lockyer v. Buckhurst Park Properties
(Mangal) Ltd.
, [1964] 2 Q.B. 480 at pp. 505-06 for relying on the apparent
authority of an agent:

If the foregoing analysis of
the relevant law is correct, it can be summarised by stating four conditions
which must be fulfilled to entitle a contractor to enforce against a company a
contract entered into on behalf of the company by an agent who had no actual
authority to do so. It must be shown:

(1)  that a representation
that the agent had authority to enter on behalf of the company into a contract
of the kind sought to be enforced was made to the contractor;

(2)  that such
representation was made by a person or persons who had "actual"
authority to manage the business of the company either generally or in respect
to those matters to which the contract relates;

(3)  that he (the
contractor) was induced by such representation to enter into the contract, that
is, that he in fact relied upon it; and

(4)  that under its
memorandum or articles of association the company was not deprived of the
capacity either to enter into a contract of the kind sought to be enforced or
to delegate authority to enter into a contract of that kind to the agent.

In the present case, the plaintiff has not shown that
anyone with actual authority for Sabre, such as Mr. Den Duyf, made
representations to Mr. Côté or anyone else at PBH that Mr. Paterson was
authorized to enter into a 2.85 million dollar fixed price construction
contract on behalf of Sabre.  The first two necessary conditions for relying on
apparent authority have not, therefore, been established in the evidence.

[18]

In the result, he found (at para.
48) that PBH had not established that the alleged written terms of the contract
were signed by anyone with either actual or apparent authority to bind Sabre,
and dismissed PBHs claim that Sabre had entered into a fixed price
construction contract with it.  As PBHs other claims were dependent on PBH
proving a fixed price construction contract, he dismissed PBHs action, and
granted leave to Sabre to proceed on its counterclaim (at paras. 49-50).

Positions of the Parties on Appeal

[19]

The appellants primary ground of
appeal is that the trial judge erred in not finding that Mr. Den Duyf actually
authorized Mr. Paterson, and represented by his conduct that Mr. Paterson had
authority, to sign a fixed price construction contract in the form of the
Tabulation.

[20]

The appellant argues that actual
authority derived from Sabres obligation under the joint venture agreement to
enter into a fixed price contract for services within the range of $3.1 to $3.5
million, as determined by engineering estimates.  It says that Mr. Den Duyf
agreed to this term, and then left Mr. Paterson to carry out the obligation,
determine the details, and enter into a contract that was not outside the
range.  The appellant did not further specify how Mr. Den Duyfs agreement to
the joint venture agreement resulted in actual authority to Mr. Paterson to
enter into the agreed-upon contract.

[21]

The appellant argues further that,
in any event, by leaving Mr. Paterson to carry out all of Sabres part of the
deal, Mr. Den Duyf by his conduct represented that Mr. Paterson was authorized
to enter into the contract required by the joint venture agreement.  That
conduct included making Mr. Paterson responsible for attending all the
meetings, advancing the project, and carrying out the work as the construction
superintendent and foreman.  The appellant says that Mr. Patersons position
implied that he had authority to sign the contract.  In addition, the appellant
maintains that Mr. Patersons authority was implied since he knew about the
requirements to obtain financing and that the Tabulation was prepared for the
purpose of presenting a fixed price contract as demanded by the bank.

[22]

The respondent argues that Mr.
Côtés evidence was that he knew that Mr. Paterson had limited authority, and
acted accordingly.  There was no evidence that a construction superintendent is
customarily authorized to enter into multi-million dollar contracts.  Mr. Côté
delivered the financing documents to Mr. Den Duyf for his signature, the
financial statements of PBH were delivered to Mr. Den Duyf, and he signed all
the cheques.  Mr. Côtés evidence was that Mr. Den Duyf signed but did not read
the financing documents, the financing documents were not in evidence, and Mr.
Côtés evidence as to what the bank required was contradictory hearsay.  At one
point he said the bank required a contract supported by contractors bids, and
at another point he said it required a fixed price contract.  He also said that
the Tabulation was submitted as a budget, without the $500,000 contingency, to
save bonding expense with the Village of Pemberton.  Thus, the respondent says,
Mr. Côtés evidence as to what the bank required was contradictory, and was
consistent with Mr. Patersons evidence that the Tabulation was not intended as
a fixed price contract.

[23]

As to the obligation under the
joint venture agreement, Mr. Den Duyfs position, on behalf of the respondent,
is that he was aware of the obligation and thought Sabre would be negotiating a
fixed price contract, but the parties never got there.  Mr. Den Duyf did not
know about the Tabulation until after the litigation commenced, in 2005.  The
respondent also points out that Whistler, not Sabre, was the party to the joint
venture agreement, and bound by the obligation to enter into a fixed price
contract.  As this last argument was not raised at the trial, I do not intend
to consider it on the appeal.

[24]

The other issue raised by the
appellant is whether the matter was appropriate for judgment under Rule 18A. 
The appellant says that it will defend the counterclaim on the basis that there
was a fixed price contract, and the risk of inconsistent conclusions on this
issue could embarrass the court.  It will also rely on the joint venture
agreement that is in issue in other proceedings.  Thus, the appellant claims,
this summary trial will not result in more efficient and less expensive
proceedings.  The respondent says that the question of whether there was a
fixed price contract is
res judicata
, and the trial of its claim for
time and materials will be simplified as a result.

Analysis

[25]

In their factums and at the
hearing of the appeal, both parties reviewed the evidence supporting their
respective positions, without much reference to the trial judges findings of
fact.  The appellant did not expressly allege that the trial judge made any
palpable or overriding error in his consideration of the evidence, or that he
erred in law in his understanding or application of the legal principles
relating to ostensible authority.  At best, the appellants argument amounts to
an allegation that the trial judge misapprehended the evidence by failing to
find that Mr. Den Duyf represented by his conduct that Mr. Paterson had the
authority to sign a fixed price contract.

[26]

It is not the role of this Court
to retry the case.  The Court is a court of review and a court of error.  Where
no error is alleged, the Court has no task to undertake in reviewing the
judgment appealed from.

[27]

The trial judge considered the
principles of ostensible authority, had all of the evidence relied on by both
parties before him, and concluded that there was no evidence that contradicted
Mr. Den Duyfs statement that Mr. Paterson did not have authority to sign the
Tabulation.  While he did not expressly summarize the evidence of Mr. Den
Duyfs conduct by reference to whether it amounted to representations
concerning Mr. Patersons authority, he is presumed to know the law (that
conduct may amount to a representation) and the evidence supported his
conclusion.  Nothing in the appellants argument raises a reviewable error.

[28]

Nor did the trial judge err in
deciding this case at a summary trial.  Both parties consented to the matter
being decided under Rule 18A.  In fact, the appellant brought its own
application for judgment under Rule 18A, and, according to the respondent, both
parties urged the trial judge to decide it.  The parties positions at the
summary trial are not determinative of whether the matter is suitable for
disposition under Rule 18A (see
Bacchus Agents (1981) Ltd. v. Dandurand (Philippe)
Wines Ltd.
, 2002 BCCA 138 at para. 28), but they explain why the question
of whether the matter was suitable for disposition under Rule 18A was not
argued before the trial judge.

[29]

The issue of whether there was a
fixed price contract, based on the two documents the appellant relied on, was a
discrete issue in this action.  The fact that the appellant, on appeal, relies
on the terms of the joint venture agreement, and the joint venture agreement is
in issue in other proceedings, does not complicate the matter so that the Rule
18A judgment is unsuitable, inefficient, or unjust: see Rule 18A(8)(b)(i) and
(ii) and 18A(11)(a)(ii).  This case is not like
B.M.P. Global Distribution
Inc. v. Bank of Nova Scotia (c.o.b. Scotiabank)
, 2003 BCCA 534, (2003), 19
B.C.L.R. (4th) 347, where new issues arose on appeal that could not be resolved
based on the record.  There is no new issue on appeal here  just a variation in
the manner in which the issue at the trial was argued.  The resolution of
whether there was a fixed price contract appears to simplify this action.

[30]

The respondent raised a further
argument at the hearing  that the inconsistent evidence of Mr. Côté shows that
the appellant did not think that the Tabulation was a fixed price contract, and
even if Mr. Paterson was authorized to sign it, it was only a budget and not a
contract.  The trial judge did not make that finding, and it is not necessary
to do so to decide this appeal.

Conclusion

[31]

The appellant has not identified
any reviewable error in the reasons or order of the trial judge.

[32]

It follows that I would dismiss
the appeal.

The Honourable Madam Justice Levine

I Agree:

The Honourable Mr. Justice Tysoe

I Agree:

The Honourable Madam Justice D. Smith


