Court of Appeal for Ontario

CITATION: B & B Automation Equipment Inc. v. Chalmers Suspensions International Inc., 2009 ONCA 360

DATE: 20090504

DOCKET: C48780

O’Connor A.C.J.O., Goudge and Rouleau JJ.A.

BETWEEN:

B & B Automation Equipment Inc.

Defendant (Appellant)

and

Chalmers Suspensions International Inc.

Plaintiff (Respondent)

Counsel:

Bernie Romano, for the defendant (appellant)

Alistair Riswick, for the plaintiff (respondent)

Heard: April 27, 2009

On appeal from the judgment of Justice Peter A. Daley of the Superior Court of Justice dated April 11, 2008.

Endorsement

By the Court:

[1] The appellant argues the trial judge misapprehended the evidence in failing to find that the contract included an implied term that the pretacked assemblies prepared by the respondent and to be presented to the appellant for robotic welding would be within tolerances that allowed the assembly to be robotically welded. In other words, it argued that the respondent had an obligation to ensure that the assemblies were in robotically weldable condition.

[2] We do not agree. The documents that were clearly part of the contract between the parties include the appellant’s proposal. Two provisions of it are relevant here:

(a) “Thank you for your inquiry to B & B Automation with regards to purchasing a robotic weld cell which will finish weld your frame.” [Emphasis added.]

(b) “The fixtures will be constructed in the following manner. A tooled nest will accept your pretacked frame assembly.” [Emphasis added.]

[3] These provisions suggest that the appellant is contracting to create a tooled nest that will be able to accept the respondent’s pretacked assemblies in the form that they were being produced without alteration to the respondent’s pretack facility. There is nothing in the documents to suggest that the respondent undertook to make modifications to its pretack assembly process in order to accommodate the appellant’s robotically welded process. The respondent’s drawings do not depict the assemblies in the form that they would be presented for robotic welding. Rather, the drawings only depict the final product with tolerances after the robotic welding has occurred.

[4] In addition, the evidence was clear that the appellant was the expert in robotic welding and was, therefore, in a better position to know what was required of the pretack assemblies to permit robotic welding. The evidence indicated that the appellant knew before quoting that the respondent’s pretacked assemblies could present some difficulties for robotic welding. If the appellant had intended that the respondent be responsible for providing pretack assemblies in robotically weldable form, it could have included such a requirement in its proposal or invoice. It did not do so.

[5] Moreover, the commercial reality of the arrangement between the parties support the conclusion that it is the appellant who should bear responsibility for ensuring that the assemblies met the standards required for robotic welding. The appellant had the specialized expertise and knowledge of robotic welding and, in addition, was knowledgeable of the capabilities of the respondent’s pretack facility as it had manufactured it. Thus, the commercial realities are consistent with the contract documents.

[6] The appellant relies on the evidence of Richard Goss who represented the respondent at the time the contract was formed. In giving evidence about what might be an implied term in the contract, Mr. Goss spoke of the need to have the component parts of the pretack assembly within certain tolerances. Mr. Goss’s evidence, however, did not go so far as to suggest that the respondent bore the responsibility to ensure that the pretacked assemblies themselves came within certain tolerances.

[7] In the end, there was ample evidence from which the trial judge could conclude that the terms of the contract between the parties did not contain a requirement that the respondent present for robotic welding only pretacked assemblies within tolerances fine enough to ensure the success of that welding. We see no basis to interfere with this finding.

[8] The trial judge concluded that the failure of the robotic weld cell to work properly was largely due to the fact that it was designed without regard to the limitations associated with the respondent’s pretacked assemblies. He concluded that the weld cell designed and produced by the appellant was not reasonably fit for the purpose for which it was intended and that this went to the root of the contract. In our view, this finding was open to him.

[9] The appeal is dismissed. Costs to the respondent on a partial indemnity basis fixed at $15,000.00 inclusive of disbursements and G.S.T.

RELEASED: “DOC” “MAY 04 2009”

“Dennis O’Connor A.C.J.O.”

“S.T. Goudge J.A.”

“Paul Rouleau J.A.”