Date: October 18, 2002
Docket: S.H. No. 160211
IN THE SUPREME COURT OF NOVA SCOTIA
[Cite as: A.W. Leil Cranes & Equipment (1986) Ltd. v. Pipeline Transport Ltd., 2002NSSC230]
Between:
A.W. LEIL CRANES & EQUIPMENT (1986) LIMITED AND G.W. HOLMES TRUCKING 1990 LIMITED
Plaintiffs
-and-
PIPELINE TRANSPORT LIMITED AND NISKU ENTERPRISES TRANSPORT LIMITED
Defendants
DECISION
Heard before: the Honourable Associate Chief Justice Michael MacDonald at Halifax, Nova Scotia
Dates Heard: July 8, 9, 10, 11 & 12, 2002
Written Release
of Decision: October 18, 2002
Counsel: Geoffrey Saunders, James Rossiter
for the Plaintiff
Douglas A. Caldwell, Q.C., Lloyd Berliner & Robert Pineo
for the Defendant
[1] Two business interests, one based in Nova Scotia, the other in Alberta, joined forces to win a non-union bid to stockpile pipe for the Sable Offshore Energy Project. Five weeks into the venture, disgruntled union workers picketed the project, resulting in a costly work stoppage. In this trial, I have been asked to decide which of the two partners ought to bear the resulting losses. The answer to this question lies in the largely unrecorded discussions leading to this joint venture and ultimate successful bid.
Background
[2] In 1998, Maritimes & Northeast Pipeline Management Limited (“Maritimes”) was constructing a pipeline from the Sable gas fields to mainland Nova Scotia at Goldboro and from there through Nova Scotia and New Brunswick to the United States border. Part of the project included stockpiling the pipe at strategic locations along the proposed route.
[3] Maritimes, through its contractor BFC Marine Limited (“BFC”), retained Mr. Patrick Wilson of Alberta to assist in preparing the tender. Wilson had considerable experience in the pipeline industry and was particularly familiar with the type of specialized equipment needed to complete the task. In fact his company, the Defendant Nisku Enterprises and Transport Ltd. (Nisku), owned and rented this type of machinery to pipeline contractors. BFC asked him to assess the route and to scope the equipment needs with recommendations as to how and where all the necessary machinery could be acquired.
[4] In the course of his work, Wilson contacted local heavy equipment owners to assess their capabilities. This brought him in touch with the Leil family of New Glasgow. For decades this family has been in the business of transporting heavy equipment and materials. In the Maritime Provinces they were acknowledged as leaders in this field with an impressive inventory of specialized equipment designed to carry exceptionally large loads.
[5] The Leil family’s crane rental operations were handled through the Plaintiff A.W. Leil Cranes & Equipment Ltd. (“Leil”) with Allison Leil, Sr. of New Glasgow as the owner and president while Allison Leil, Jr. of Dartmouth served as vice-president. The trucking operations were handled through the Plaintiff G.W. Holmes Trucking 1990 Ltd (“Holmes”) with Allison Leil, Sr’s son-in-law, David MacDonald as manager.
[6] Upon discovering more about the nature of the project and seeing the Leil operations, Wilson could see an attractive opportunity. He realized that several factors had coalesced to uniquely position him to bid the stockpiling contract. His optimism was well founded upon the following factors:
[7] Although pipeline work was historically union based through the Mainline Pipeline Agreement for Canada (MPAC), in the Sable project much of the pipe would be stockpiled in areas away from the main route; thus creating the opportunity for a non-union bid. Nisku was a non-union company and could supply much of the required equipment.
[8] In the event a union bid was necessary, Wilson was still well positioned because of his association with his friend and colleague Andre LeBlanc who was also well-experienced in the industry and who owned a union company; the Defendant Pipeline Transport Ltd. (“PTL”). LeBlanc who had been working on a Quebec project at the time, would be able to manage the project on the ground.
[9] Furthermore it became clear that preference would be given to local bidders. This made an association with the Leil family most attractive. Not only did they have the equipment and the respected local name, they too had the right mix of union and non-union companies. Leil was historically a union company hiring only unionized crane operators. Holmes, on the other hand, was non-union. Despite this, over the years, non-union truck drivers from Holmes worked in harmony with Leil’s unionized operators.
[10] All this set the stage nicely for a partnership between the Wilson/LeBlanc interests and the Leil family. Furthermore, all bases could be covered with both a union (PTL) and a non-union (Nisku) bid.
[11] It was in this context, that the important meetings between Wilson/LeBlanc and the Leil family took place in the summer of 1998; culminating in their written “Joint Venture Partnership Agreement”.
The Meetings
Quebec - Nova Scotia - July 23, 24, 1998
[12] In the course of Wilson completing his work for BFC, and contemplating the possibility of a partnership, the parties arranged a face-to-face meeting. On July 23rd Al Leil, Sr. and David MacDonald took the Leil private plane to Quebec to tour PTL’s ongoing project where LeBlanc was supervisor and Nisku’s equipment was being used.
[13] After Wilson and LeBlanc showed them around and explained the operation, Wilson joined Leil, Sr. and MacDonald in the plane back to Nova Scotia. They arrived in Trenton late on the 23rd. The next day, Wilson toured the Leil operations with MacDonald and Leil, Jr. He was suitably impressed with Leil’s potential as a bidding partner. Later in the day they also flew over part of the proposed route to examine the terrain.
[14] While nothing concrete was decided, promised or represented, these sessions paved the way for serious partnership discussions that would take place in Halifax later in the summer.
Halifax - August 21, 1998
[15] After the tender package was released by Maritimes and the parties exchanged further information about their respective operations, important meetings were arranged for August 21, 1998. These sessions began at the Westin Hotel in Halifax and continued at Leil’s Dartmouth offices. Wilson, LeBlanc, MacDonald and Liel, Jr. attended. They reviewed the stockpiling tender. From the material, it was unclear whether the project would be union or non-union. They, therefore, decided to tender both a union and a non-union bid. Nisku would front the non-union bid while PTL would lead the union bid. In either scenario Nisku and Leil/Holmes would supply the equipment.
[16] Furthermore even if Nisku won the bid, LeBlanc would still be project manager. They agreed on the type of equipment needed and the appropriate rates. Maritimes required safety records and Leil/Holmes would supply the same.
[17] They discussed profit-sharing. Because Leil/Holmes was not willing to share in any losses, understandably Nisku/PTL were not willing to have them share in the profits. However they did agree to compensate Leil/Holmes for the use of their names and for their participation in the project. The formula was a bonus of .10c for every meter of pipe laid.
[18] All this culminated in the following written agreement as set out Exhibit # 2A, Tab 9:
Joint Venture Partnership Agreement
Between: A.W. Leil Cranes & Equipment (1986) Ltd.
P.O. Box 356
New Glasgow, Nova Scotia
B2H 5H2
With: G.W. Holmes Trucking 1990 Ltd.
P.O. Box 356
New Glasgow, Nova Scotia
B2H 5H3
And: Nisku Enterprises Transport Ltd.
1301-4 Street
Nisku, Alberta
T9E 7M9
c/o Andre Leblanc & Pat Wilson
Re: Maritimes & Northeast Pipeline Project - Stockpiling
The above tender will be submitted jointly by all three companies. Upon being successfully awarded the contract all parties agree to the following working arrangement.
1. Nisku Enterprises Transport Ltd. will purchase a numbered Nova Scotia Company to be the operating company for duration of the project.
2. A. W. Leil Cranes & Equipment (1986) Ltd. will have the first rights to provide 50% of cranes required on the project. The project requires 65 to 70 ton conventional cranes based daily on a daily bid rate of $750.00 per day dry lease for 214 days based on 10 hour days.
3. G.W. Holmes Trucking 1990 Ltd. will have the first rights to provide 505 of Tandem Axle Tractors required on the project. The project required 4 to 6 trucks based on daily bid rate of $240.00 per day based on 10 hour days. Dry lease for 214 days or supply on wet lease $480.00 per day.
4. Nisku Enterprises Transport Ltd. will supply the balance of equipment for the project based on the bid rate in the tender.
5. Payment will be with in 5 days of receipt of payment as per the tender.
6. A bonus of $0.10 per metre will be paid to A.W. Leil Cranes & Equipment (1986) Ltd. and G. W. Holmes Trucking 1990 Ltd. upon completion of the project for assistance in completing the project and used [sic] of company names.
The Successful Bid and Subsequent Labour Problems
[19] Following the successful non-union bid, the newly incorporated company G.W. Holmes-Nisku Enterprises (Maritimes) Inc. (“Holmes-Nisku”) entered into the contract with Maritimes on September 25,1998.Work on the project began in October of 1998 and proceeded for the first several weeks without incident. Leil/Holmes initially carried the payroll which was subsequently taken over by Holmes-Nisku.
[20] On November 4, 1998, members of the Labourers International Union of North America (“LIUNA”) picketed the project protesting the use of non-union labour on what they considered to be a union job. This resulted in a three day shut down and resumption only after Nisku-Holmes agreed to much more expensive union contracts; first with LIUNA (Exhibit 2B, Tab 26) and later with the International Union Of Operating Engineers (IUOE).
[21] The work continued until June of 1999 when the IUOE interfered again. It demanded what Wilson termed an “extortion fee” of $50,000 in order to guarantee labour peace and to protect his equipment from vandalism (Exhibit 2B, Tab 41). Wilson felt compelled to pay this in order to protect his equipment. This, for Wilson was the “final straw”.
[22] Effective June 20, 1999 he managed to withdraw from the contract (Exhibit 2C, Tab 64, page 29). It was by then 87% complete. The final 13% was completed by BTL. Leil/Holmes continued to supply equipment after June 20th but, at LeBlanc’s request, they simply invoiced PTL instead of Nisku-Holmes (Exhibit 2C, Tab 68, Page 47). When the work was completed (apparently by BFC who in turn retained PTL) on July 29, 1999, Holmes billed Nisku for the bonus.
The Key Issue - The Plaintiffs’ Alleged Misrepresentations
[23] The key issue in this litigation involves the Plaintiffs’ alleged [mis] representations as to the supply of labour for this project.
[24] It was at the August 21st sessions, that the parties addressed the prospect of union crane operators working with non-union truck drivers in the event of a successful non-union bid. These discussions go the heart of this litigation. Not surprisingly the evidence is conflicting.
[25] Wilson insists that this was an important issue for him, considering that his lower non-union bid was based upon non-union trucking rates. In fact, this was on his “list of things to discuss” at these meetings (Exhibit 6, Page 3). Before me, Wilson testified that both MacDonald and Leil Jr. “assured him that there would be absolutely no problem” [with union crane operators working side-by-side with non- union truck drivers]. He insisted that, given his unfamiliarity of the Maritime Provinces’ labour climate, “he would not have bid the job without the guarantee of [available] crane operators”. In other words he felt totally reliant on MacDonald and Leil, Jr. because of their experience in this area. Furthermore he maintained that Liel/Holmes agreed to supply both the equipment and labour, even in the event of labour unrest. Thus Wilson submits that the financial fallout from the work stoppage (and subsequent expensive union contract) should be to sole responsibility of Liel/Holmes.
[26] For their part MacDonald and Liel, Jr. deny giving any such guarantee. In their experience union crane operators from Leil did in fact work side-by-side with non-union truckers from Holmes without incident. They say that this and no more was reported to Wilson.
[27] Specifically they deny ever guaranteeing a supply of crane operators to the project (especially if it meant crossing a picket line). They agreed to help secure these operators and did just that. They insist that the problem lies solely with Wilson in his failure to tender a conditional bid (providing for increased remuneration in the event the project became unionized).
Analysis
[28] My resolution of this issue is significant and will likely determine the outcome of the entire case. It goes to the heart of not only Nisku’s defense but also its counterclaim.
[29] Having considered all the evidence on this important issue, I find that the Leil/Holmes version of events prevails. In other words, I find that, throughout the entire process, they did no more than confirm that which was historically accurate; namely that unionized crane operators worked side-by-side and in harmony with non-unionized truckers on non-union jobs. While this information no doubt buoyed Wilson into believing that a non-union bid could work, it did not constitute a misrepresentation. In fact, for several weeks these workers did just as expected. Non-union truckers worked side-by-side with unionized crane operators on a non-union job. My reasons for accepting the Leil/Holmes version of events, include the following:
[30] MacDonald and Leil Jr. represented the Leil/Holmes interests at these important August meetings. I found their evidence to be consistent and credible. I believe them when they say they did no more than explain their experiences to that time.
[31] Furthermore I accept their evidence when they insist that the deal was to simply rent equipment and not to provide labourers. I find that they initially carried the payroll not because of an undertaking to provide labour but as an effort to be as helpful as possible in seeing the project successfully completed. I accept their evidence on this issue as being both truthful and accurate.
[32] I was particularly struck by the cross examination of Leil, Jr. who, as a union member himself, bristled with indignation at the suggestion that he would guarantee union labour even in the face of a picket line. He appeared completely candid and even visibly upset at this suggestion. I accept that any optimism he showed for this project was premised upon there being (as he stated) “no labour trouble”.
[33] At the same time, I have trouble with Wilson’s testimony as he relayed his version of events. I am not saying that he intentionally misled the Court. I am simply saying that his version of events, to the extent that it conflicts with MacDonald and Leil, Jr.’s is inaccurate. For example, on discovery, Wilson appeared to agree completely with the Leil Jr./MacDonald version of events. I refer to the following exchange at trial:
Q. And, in fact all you were being told at that meeting was that before they had used unionized crane operators and non-unionized truck drivers and they didn’t really represent anything further than that, did they?
A. They assured us that on this tender that we were doing, that they would have absolutely no problem using their cranes and their truck drivers to do the project in Nova Scotia and New Brunswick.
Q. I am going to refer you to your discovery evidence on that point Mr. Wilson, beginning at page 150 and continuing on page 151:
Q. Sure, but really all they told you was what they had done before, and that is used unionized crane operators and non-unionized truck drivers?
A. That is correct. Yes.
Q. They didn’t represent anything further than that, did they?
A. No.
[34] At trial before me, Wilson acknowledged making this concession on discovery, but attempted to qualify it by insisting that his reply [on discovery] was given in the context of the initial July meetings only. I do not accept this explanation. It is clear to me from the exchanges that followed at trial (both on cross examination and on re-direct), that these discovery questions were asked in the context of Nisku’s Statement of Defence where at paragraph 16, it provides:
16. The Plaintiffs made representations to Nisku which include the following:
...(c) that Nisku would be able to perform the contract with non-union labour and without interference from the relevant local unions ...
[35] These admissions on discovery, I find, refer to Nisku’s plea of misrepresentation generally and were not restricted to the July meetings as Wilson suggests. The discussions in July were general in nature and, as evidenced by Wilson’s notes (Exhibit 6), it was not until August that the parties got into specifics about the feasibility of union and non-union labourers working together. I simply do not accept that Wilson thought he was referring to the July meetings only when he gave those answers on discovery.
[36] Furthermore, the Agreement (Exhibit 2A, Tab 9) which Wilson drafted, makes no reference to Liel/Holmes being required to supply labour. Nor does it refer to any representations or assurances from Leil/Holmes in this regard.
[37] As well, I find a January, 1999 letter written by Wilson to Maritimes’ manager, Ralph Mayer to be significant in the resolution of this issue (Exhibit 2C, Tab 64, Page 16). In it Wilson looks to Maritimes as opposed to Liel/Holmes for redress following the November 1998 work stoppage and subsequent expensive union contract. It reads:
January 29, 1999
Mr. Ralph Mayer
Maritime & Northeast Pipeline
Suite 220, 65 Regent Street
Fredericton, NB E3B 5B4
Dear Sir,
We have received your letter dated November 12, 1998, outlining your position to our request for consideration for compensation. The increased costs of the project are associated with our company being forced to work within the International Labors Industrial Union Agreement.
We do not agree, nor can we accept your position. Under protest, we will proceed with the project as outlined in its Plan of Execution, using due care and diligence to completion. However we feel that the responsibility does not rest entirely with the contractor and we will be asking for assistance to recover additional costs.
In the tender request dated August 5th, 1998, instructions did not specify a union or non-union site. With our limited knowledge of existing labor environment and agreement for the regions, the joint venture partners (Nisku Enterprises, Pipeline Transport Limited, and G. W. Holmes) provided tenders for both option scenarios to assist Maritime & Northeast Pipeline with its decision:
- First Submission - Joint venture between Pipeline Transport Limited and G. W. Holmes using rates from the Pipeline Contractors Association of Canada Union agreement.
- Second submission - Joint venture between G. W. Holmes and Nisku Enterprises using non-union rates.
Acceptance by Maritime & Northeast of the non-union tender led us to believe that this was an acceptable method of operation. Since they are more familiar with the environment, we assumed that using non-union laborers would not be a problem. We did not anticipate the work stoppage on November 4-6, 1998 created by Industrial Laborers Union.
We apologize for the delay in responding to your letter. However, we needed to determine what the actual cost increases are while operating under the Industrial Laborers terms. As we have established this during the last two months of operation, we would be willing to a meeting at your earliest convenience to discuss this matter.
Respectfully,
Pat Wilson [Emphasis added]
[38] I find this letter to be important for several reasons. First, it corroborates Leil/Holmes’ position that Wilson should have arranged a qualified bid that would have Maritimes responsible to pay more should the project become union. This is exactly what Wilson (after the fact) suggests in this letter. Secondly, it suggests that Wilson relied not on Leil/Holmes but on Maritimes when it came to labour problems. The third point goes again to credibility. This letter, which is clearly against Nisku’s interests was not produced by Nisku in its List of Documents but discovered as part of Maritimes’ file (Exhibit 2C, Tab 64). Wilson provided the Court with no satisfactory reason why this document was withheld.
[39] A second letter from Wilson is also relevant in my assessment of this issue. In June of 1999 he again wrote Mayer to further highlight the loss Nisku incurred from the work stoppage and subsequent union contract. He referred to their September, 1998 “pre-tender” meeting and MacDonald’s alleged assurances:
The outstanding issue is the cost of the strike on November 4th and 5th, 1998 caused by A. W. Leil Cranes operators not willing to cross the picket line. At present Nisku Enterprises paid four hours per day plus subsistence to all employees during the strike. G.W. Holmes has invoiced and demanded Nisku Enterprises pay rental for the trucks, cranes, pilot cars and travel expenses when they were not working on those days. As you and myself were in the pre-tender qualifying meeting where we were assured by Dave MacDonald that there would be absolutely no problem working cranes and drivers on a non-union basis on this project. The same statement was made in our meeting on August 24th, 1997 with Andre Leblanc and myself. At present Nisku Enterprises has paid all additional expenses because of the strike but has a hard time paying for equipment that didn’t work. [emphasis added.]
[40] Yet Mayer, in testifying before me, could not recall the discussion of any potential labour problems or guarantees by MacDonald at this meeting. Further Mayer felt that had they been discussed, he would likely have remembered. This is consistent with the MacDonald/Liel, Jr. version of events and inconsistent with Wilson’s recollection.
[41] Another less significant but nonetheless noteworthy fact involves Wilson’s inquiries to third parties about the Maritime Provinces’ labour climate. I refer to his contact with the Irving group. Irving’s information that was totally consistent with that provided by Leil/Holmes; namely that it was not uncommon for unionized crane operators to work non-union jobs. This to some extent corroborates the MacDonald/Liel, Jr. version of events.
[42] A practical look at this problem as well favours the Liel/Holmes version of events. In essence, by their pleas, Nisku and PTL seek to establish that Leil/Holmes promised not only a supply of labour throughout the project but that in the event of labour trouble the unionized crane operators would cross a picket line. From a practical perspective, I cannot imagine anyone from Liel/Holmes making such a representation. Both Liel, Sr. and Liel, Jr. were union members themselves. They knew (and arguably respected) the power of unions and their picket lines. MacDonald was equally familiar with the labour climate. Such a representation would be foolhardy in the circumstances.
[43] Finally, I wish to elaborate on this labour climate issue. Much has been said and acknowledged about Liel/Holmes’ experience with the Maritime Provinces’ labour climate. Yet I find that the labour problems afflicting this project were not geography based but industry based. In other words, the labour unrest resulted from the MPAC which effectively unionized all Canadian pipeline work. This was not a case of unionized crane operators deciding that they no longer wanted to work with non-unionized truckers. Work stopped because the Unionists, believing that the MPAC was being breached, set up a picket line. That issue fell squarely with Nisku/PTL’s area of expertise. It would have therefore been unreasonable for them to rely on Leil/Holmes in these circumstances.
Disposition
[44] My conclusion on this important issue effectively settles all the outstanding claims. In other words Nisku and PTL have relied on these alleged [mis] representations to support both their defences and counterclaims. Nonetheless, I will briefly deal with each individual claim in order:
[45] I will first deal with the disputed claims advanced by Leil/Holmes against Nisku directly involving the November, 1998 work stoppage. Essentially Nisku through Nisku/Holmes calculated deductions to invoices from both Leil and Holmes. In letters dated December 23, 1998, (Exhibit 2B, Tab 32) Nisku’s accountant, Ken Loo explained to Leil:
As we had paid invoice #7601 in full per our December 2nd cheque, #1437, we have adjusted our current payment. We have deducted the $7,079.40 for the work stoppage created by the Industrial Union on November 4-6, 1998. Since the equipment and crane operators only worked for 2 days during the week of November 7th, we do not feel the 5 days billed to us on invoice #7601 is justified.
And to Holmes:
Pleased be advised that we have adjusted the amount of the above invoice by $11,873.75 for the work stoppage created by the Industrial Union on November 4-6, 1998. Since the equipment and personnel only worked for 2 days during the week of November 7th, we do not feel the 5 days billed to us for labor and equipment rental is justified (see attached for adjustments).
[46] Nisku’s defence to this claim is based on breach of contract, the breach being the alleged promise and failure to guarantee workers (even in the event of a picket line). I have decided there was no such promise and therefore there is no breach of contract. This was an improper deduction and the claims are valid. I order judgement against Nisku accordingly. Leil shall have judgement for $7,049 and Holmes shall have judgement for $11,873.; both with interest from the date of the respective invoices to present.
[47] In reaching this conclusion, I fully accept MacDonald’s uncontradicted evidence that, during the work stoppage, he asked LeBlanc to send the men home (to mitigate some of this loss) but LeBlanc refused.
[48] I now turn to the Leil/Holmes claim for the .10c/ meter bonus. By the end of July, 1999 the 577,700 meters of pipe had been offloaded and stockpiled. Holmes invoiced Nisku accordingly (Exhibit 2C, Tab 68, Page 44). The invoice totals $66,435.50 representing a net claim of $57,770 plus HST of $8,665.50. Again, Nisku’s defence to this claim is the alleged breach of contract which I have already rejected.
[49] As well, Nisku maintains that the payment is not triggered because it withdrew from the project before completion. I also reject this defence. In June of 1999, Liel/Holmes was simply asked to invoice PTL instead of Nisku which they did without question or explanation. Wilson in his aforementioned letter of June 15, 1999 to Mayer represented their Joint Partnership Agreement with Nisku as the operating document. It provided for this bonus. Furthermore, by all accounts, the bonus was for Leil/Holmes’ participation in the contract and for the use of the Leil/Holmes names. These terms were met by Leil/Holmes and the project was completed. This amount is due and owing. I order judgement to Holmes accordingly together with interest from the date of the invoice to present.
[50] I now turn to Nisku’s counterclaim. It is based on Leil/Holmes’ alleged negligent misstatements about union/non-union harmony that prompted Nisku to enter into the partnership. As stated above, I have concluded that Leil/Holmes made no such statements or representations as claimed. The counterclaim therefore fails.
[51] Furthermore, even if I am wrong and there was an actionable misstatement, I still have a problem with Nisku’s damages as claimed. Mr. Loo on Nisku’s behalf calculated the loss by analyzing the consequential cost of the work stoppage, consequential expensive union contract and later the so-called “extortion fee”. In other words he calculated what it would take to put Nisku in the same position it would have been in had the alleged misrepresentations been true.
[52] This is the wrong approach. The proper question to ask is “what would it take to return Nisku to the same position had the alleged misrepresentations not been made. I refer to the Nova Scotia Court of Appeal decision of 1874000 Nova Scotia Limited v. Adams (1997), 159 N.S.R. (2nd) 260 where beginning at paragraph 41 Chipman, J.A. notes:
[41] I agree with Collins Barrow that the trial judge has measured the loss on the footing that Shannon should be put in the position he would be had the financial statements of ABM been correct. This, being the test for measuring damages for breach of a contractual warranty, is not the correct test.
[42] The principle applicable to the award of damages here is clear. As the trial judge said, it is the application of it that is difficult.
[43] The trial judge found that Shannon never would have purchased ABM had he known the true financial condition of the company. The exercise therefore is to fix the damages so as to put Shannon as far as possible in the position he would have been had he not invested in ABM.
[53] On the evidence before me it would be difficult if not impossible to calculate this loss. Nisku could say that it would never had entered into the contract. Yet when all is said and done Nisku made a profit in excess of $300,000. on this project. Had Nisku not bid, PTL may very well have won the contract and Nisku would likely have supplied its machinery for a profit. Yet I have no evidence as to what that profit would be. In short, even had there been an actionable misstatement, Nisku’s claim on the evidence presented may have been significantly reduced if not denied.
[54] Finally, I will deal with Liel/Holmes claims against PTL for services outside the partnership agreement. It involves equipment and labour supplied in the summer of 1999. PTL, despite filing a defence and counterclaim, failed to appear or to be represented at trial. Leil, Sr. provided evidence in support of Leil’s claim and tendered the supporting invoices (Exhibit #4). They total $39.973.36. This is a valid claim and I grant judgement accordingly together with interest from the date of each respective invoice to present. Holmes also advanced a claim against PTL covering the same time period. Holmes has abandoned this claim and, accordingly, I make no order. In the absence of any supporting evidence, I dismiss PTL’s counter-claim.
Pre-judgement Interest
[55] At our pretrial conference, counsel felt they could agree on a rate for pre-judgement interest. I assume they still can. If not, I invite written submissions by Mr. Saunders on or before October 25, 2002 and in response by Mr. Caldwell on or before November 6, 2002.
Costs
[56] I trust the parties can agree on costs. If not, I invite written submissions within the same time period provided above. When the issues of pre-judgement interest and costs are settled, I ask Mr. Saunders to prepare the Order for presentation the the Court after Mr. Caldwell has consented as to form.
Michael MacDonald
Associate Chief Justice