Kenneth Peel

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.

In a personal injury action arising from a car–train collision, the plaintiffs brought a motion under Rule 31.03(2)(b) of the Rules of Civil Procedure seeking leave to examine a second representative of a railway defendant for discovery.

The defendant had already produced a signal inspector responsible for inspecting and maintaining the railway crossing involved in the collision.

The moving party argued that another representative, possibly a general manager, should be examined regarding decisions about upgrading signal equipment and crossing design.

The court held that the moving party had already conducted an extensive examination and had not sought undertakings to obtain further information.

It was not established that satisfactory answers could not be obtained from a single representative without undue expense and inconvenience.

The motion for leave to examine a second representative was therefore dismissed with costs.