Éric Mongeau

The appellant regulator challenged judgments holding that pension plan clauses could limit employer funding obligations after partial termination.

During appellate proceedings, the legislature enacted declaratory amendments expressly reversing the interpretation adopted below.

The majority held declaratory legislation applies immediately to pending matters and that the dispute remained pending because substantive rights had been remitted for determination.

It concluded the administrative decision-maker had to apply the new provisions since prior appellate directions no longer reflected good law after legislative intervention.

The appeal was allowed, with dissenting reasons concluding appellate finality and res judicata barred reopening the legal issue.

Domtar purchased a recovery boiler from C.E. (now ABB and Alstom).

The boiler's superheater developed leaks and cracks due to the use of H-style tie welds.

Domtar replaced the superheater and sued C.E. for latent defects and breach of the duty to inform.

The Supreme Court of Canada held that the excessive cracking constituted a latent defect.

As a manufacturer, C.E. was presumed to know of the defect and failed to rebut this presumption, rendering its limitation of liability clause inapplicable.

C.E. was held liable for the replacement costs.

The Court also dismissed the appeals regarding the insurers, finding Chubb liable on its performance bond and Arkwright not liable due to a latent defect exclusion clause.