Transport Navimex Canada Inc. v. Canada

In Carriage of Goods by Sea on (Updated )

In this matter the Defendant, Transport Canada, had invited the submission of bids to transport cargo to Greenland. The Plaintiff submitted a bid to carry the cargo on the "Glencoe" which was accepted by the Defendant. After acceptance, the Defendant increased the amount of cargo it
wished to transport and purported to terminate the agreement with the Plaintiff on the grounds that the "Glencoe" did not have the capacity to carry the increased cargo. The Plaintiff took the position throughout that the "Glencoe" was capable of carrying the increased cargo and brought this action for breach of contract claiming the costs of chartering the "Glencoe", expenses and lost profits. At trial, the Trial Judge held: (1) that the "Glencoe" was not capable of carrying the increased cargo; (2) that the Defendant had unlawfully and without justification terminated the contract with the Plaintiff; but (3) that the Plaintiff had not suffered any damages. The Plaintiff appealed the first and third findings. On appeal, the Federal Court of Appeal held that the first finding was one of fact based on the Trial Judge’s assessment of expert evidence and that the judge made no "palpable and overriding" or "specific and identifiable" error. Accordingly, this finding was affirmed. However, the third finding that the Plaintiff had suffered no damages was reversed. This finding was based on the fact that the Plaintiff had not personally chartered the "Glencoe". The Court of Appeal held that as the Defendant never questioned the fact that the Plaintiff had chartered the "Glencoe" the Plaintiff did not have a duty to prove this fact. Further, and in any event, the Court of Appeal held that the evidence established that the Plaintiff had chartered the "Glencoe", albeit through a related corporation. As a result, the Court of Appeal held that the Plaintiff was entitled to damages for the chartering of the "Glencoe" and for the lost profit calculated on the basis of the cargo the "Glencoe" could have carried.