BRANDT INDUSTRIES CANADA LTD v EVRAZ INC NA CANADA

The parties were engaged in a dispute regarding the interpretation and application of two Master Purchase Agreements (“MPAs”). The Plaintiff claimed that the MPAs were not fixed-price and sought damages for termination of contract as well as payment for outstanding invoices and interest.

The Defendant claimed that the MPAs were fixed-price and terminated the contract due to a material breach. The Defendant brought a Counterclaim for damages incurred.

In discussions regarding which witnesses were called, the Court observed that when a notice is served in accordance with Rule 8.15, and there is no objection from the recipient, no adverse interest can be drawn if such witness is not called. 

One of the issues before the Court was whether the Defendant could rely on a repudiatory breach of the Plaintiff, when a repudiatory breach was not specifically pleaded in the Statement of Defence. Rule 13.6(3) requires that a pleading include a statement of any matter on which a party intends to rely that may take another party by surprise. Justice Sidnell held that a repudiatory breach is not a matter specified in Rule 13.6 as being one that may take another party by surprise and thus does not need to be specifically pleaded to be relied upon.

In conclusion, the Plaintiff was partially successful in its claim. Sidnell J. directed the parties to submit written costs submissions in accordance with Rule 10.33.