COURT OF APPEAL FOR ONTARIO
AUSTIN, MOLDAVER AND BORINS JJ.A.
B E T W E E N : )
) Bradley A. Smith
POWELL EQUIPMENT LIMITED ) for the appellant/defendant
)
Plaintiff )
(Respondent) )
)
- and - )
) Douglas C. Shaw
TRACK-CORP EQUIPMENT LTD. ) for the respondent/plaintiff
)
Defendant )
(Appellant) )
)
Heard: May 19, 2000
On appeal from the judgment of Wright J. dated February 2, 1999
made at Thunder Bay.
AUSTIN J.A.:
1This appeal involves three different sums of money:
$30,914.20, $9,579.90, and $1,350.88. With respect to the two
smaller sums, none of us sees any error and we would dismiss the
appeal. With respect to the largest amount, this court is
divided.
2Speaking on behalf of Borins J.A. and myself, I would
dismiss the appeal with regard to the largest sum. In that
regard I need say only that Powell’s error with respect to this
item was in failing to replace the oil cooler or, in the
alternative, in failing to warn Track-Corp to do so.
3The oil cooler was an integral part of the transmission and
it was the transmission which was in for repair. In those
circumstances, Powell’s error was a failure of workmanship
whether it was a failure to replace or a failure to warn.
Accordingly, it fell within the ambit of the warranty and the
trial judge was correct in his conclusion.
4The appeal is therefore dismissed with costs.
“Austin J.A.”
“Borins J.A.”
MOLDAVER J.A. (Dissenting):
5The trial judge found, in the context of the repairs to the
transmission undertaken by Powell in 1993, that Powell was
negligent in failing to alert Track-Corp of the need to replace
the oil cooler. He further found that the failure of the
transmission in 1994, some ten months later, could be traced
directly back to Powell’s failure in this regard. The trial
judge went on however, to find that Powell was not responsible
for the cost of repairing the transmission in 1994 because the
warranty only extended to defects in material and workmanship for
a period of three months after the date of completion of the
repairs.
6With respect, I am of the view that the trial judge erred in
applying the three-month warranty provision to relieve Powell of
its responsibility to bear the cost of fixing the transmission in
- Powell’s negligence, as found by the trial judge, did not
involve defective material or defective workmanship but lay
instead in its failure to alert Track-Corp of the need to replace
the oil cooler. Accordingly, the warranty provision, which
related only to defective materials and workmanship, did not
apply. At very least, the meaning of the word “workmanship” is
ambiguous and in the circumstances, Track-Corp was entitled to
have the ambiguity resolved in its favour.
7It follows, in my view, that Track-Corp was not required to
pay the $30,914.20 repair cost for fixing the transmission in
1994 and the trial judge erred in holding otherwise.
8Apart from this issue, I am not persuaded that the trial
judge committed any further errors in his assessment of Powell’s
claim or Track-Corp’s counter-claim.
9Accordingly, I would allow the appeal and vary paragraph one
of the judgment under appeal in accordance with these reasons.
The net effect of this conclusion is that neither party had any
real success at trial. It follows, in my view, that the parties
should bear their own costs at trial and I would vary paragraph
two of the judgment accordingly.
10The appellant has achieved partial success on appeal. In
the circumstances, I would award the appellant 50 per cent of its
costs of the appeal.
Released: June 2, 2000
“Moldaver J.A.”