COURT OF APPEAL FOR ONTARIO

CITATION: Hydro Hawkesbury v. ABB AB, 2020 ONCA 54

DATE: 20200128

DOCKET: C67239

Hoy A.C.J.O., Doherty J.A. and Marrocco A.C.J. (ad hoc)

BETWEEN

Hydro Hawkesbury

Plaintiff (Respondent)

and

ABB AB and Pioneer Transformers Ltd.

Defendants (Appellant)

Tara L. Lemke, for the appellant Pioneer Transformers Ltd.

Iain Peck and Laurie Graham, for the respondent Hydro Hawkesbury

Heard and released orally: January 16, 2020

On appeal from the order of Justice Robert Pelletier of the Superior Court of Justice, dated June 26, 2019, with reasons reported at 2019 ONSC 3930.

REASONS FOR DECISION

[1] The motion judge granted summary judgment to the respondent, Hydro Hawkesbury, on its contract claim against the appellant, Pioneer Transformers Ltd. The facts are straight-forward. Hydro Hawkesbury purchased a transformer from the appellant. The transformer failed, causing damage. It appeared that a defective tap changer purchased by the appellant from ABB AB, caused the problem. Hydro Hawkesbury sued the appellant for breach of contract. Hydro Hawkesbury sued the appellant and ABB in tort. The appellant and ABB cross-claimed against each other.

[2] Hydro Hawkesbury moved for summary judgment on its contract claim against the appellant, alleging a breach of the “fit for purpose” warranty in the Sale of Goods Act, R.S.O. 1990, c. S.1. The facts put forward on the motion were largely unchallenged. In our view, they established both the existence of the obligation to provide a device that was fit to perform the intended service and the breach of that obligation.

[3] On the evidence, there was no triable issue either in respect of the existence of the contract, or the breach of the relevant term. However, the appellant argued on the motion and again in this court that granting of summary judgment would not serve the overall interest of justice in that it would prejudice the appellant in its pursuit of its claim against ABB.

[4] We do not agree with this submission. The summary judgment proceedings have ended the litigation as far as Hydro Hawkesbury is concerned. Hydro Hawkesbury abandoned its tort claims as part of the order made in the summary judgment proceedings. There is no risk that findings of fact in respect of the appellant’s contractual relationship with ABB will be inconsistent with any of the findings that were made in the summary judgment proceedings. The motion judge addressed the contractual relationship as it existed between Hydro Hawkesbury and the appellant only. The contractual relationship between the appellant and ABB involves a separate factual inquiry.

[5] This was an appropriate case for summary judgment both having regard to both the state of the evidence and the need to effectively and efficiently use court resources.

[6] The appeal is dismissed.

[7] The issue of the costs of this appeal was not addressed at the hearing. We are inclined to order that Hydro Hawkesbury is entitled to its costs of the appeal, fixed in the amount of $5,000, inclusive of HST and disbursements. However, should the parties wish to make submissions on the issue of costs, they may do so within 10 days following the release of these reasons.

[8] After granting Hydro Hawkesbury’s motion for summary judgment, the motion judge stayed the appellant and ABB’s cross-claims against each other. We provide separate reasons for dismissing the appellant’s appeal of that stay.

“Alexandra Hoy A.C.J.O.”

“Doherty J.A.”

“Marrocco A.C.J.S.C. (ad hoc)”