Forrest Hume

This is a costs endorsement from the Court of Appeal for Ontario.

The respondents were awarded their costs of the appeal in the sum of $60,000, inclusive of disbursements and applicable taxes.

This decision followed an appeal from a Superior Court judgment and a prior costs order.

The appellant railway company appealed the dismissal of its claim for demurrage charges against the respondent shippers.

The appellant argued it was entitled to charge demurrage under its published tariffs pursuant to the Canada Transportation Act, even without a contract.

The Court of Appeal dismissed the appeal, holding that a contract, express or implied, is required to charge demurrage.

The court found no error in the trial judge's conclusion that no implied contract existed given the respondents' repeated refusals to pay, nor was there any unjust enrichment.

Following the dismissal of the plaintiff's action for unpaid demurrage charges, the court determined the costs payable to the successful defendants.

The court declined to defer the costs decision pending a related arbitration between the defendants and a third party.

After considering the complexity of the case, the principle of indemnity, and the reasonable expectations of the parties, the court awarded the defendants costs in the amount of $250,000 inclusive of taxes and disbursements.

Goderich-Exeter Railway Company Limited (GEXR) sought to recover $378,074 in unpaid demurrage charges from Shantz Station Terminal Ltd. and Parrish and Heimbecker Limited (P&H).

GEXR argued it had the right to levy demurrage based on its published tariff, an express or implied contract, or unjust enrichment.

P&H contended that GEXR lacked contractual or legislative authority, asserting that only Canadian National Railway (CN) could invoice them for demurrage, as per their Memorandum of Understanding (MOU) with CN.

The court found no express or implied contract between GEXR and P&H for demurrage, noting P&H's consistent rejection of GEXR's invoices.

Furthermore, GEXR failed to prove unjust enrichment, as P&H was willing to pay CN for demurrage, and GEXR could not demonstrate a corresponding deprivation or lost opportunity.

The action was dismissed.