Tenneco Canada Inc. v. British Columbia Hydro and Power Authority

Tenneco Canada Inc. v. British Columbia Hydro and Power Authority

Clause 18's phrase "cause expressly stated in this clause" is limited to causes enumerated in clause 18(d); clause 18(d) encompasses a "suspension pursuant to clause 16" and expressly lists "Strikes, legal lockouts, and other labour disturbances". The term "Strikes" in that context includes strikes at Tenneco's customers that forced Tenneco to reduce take, and therefore Tenneco was entitled to a Billing Adjustment for the reduction period. Appeal allowed; Billing Adjustment payable June 15, 1992 through July 22, 1992; overpaid amount understood to be $206,222.08 CAD.

Citation
1999 BCCA 415
Parties
Plaintiff (appellant): Tenneco Canada Inc. doing business as Albright & Wilson Americas; Defendant (respondent): British Columbia Hydro and Power Authority
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
28 June 1999
Procedural Posture
Contract/commercial Appeal Concerning Electricity Supply Agreement and Billing Adjustments / Court of Appeal Judgment on Rule 18 a Proceeding (final Disposition)
Outcome
Appeal allowed; declaration that Tenneco is entitled to a Billing Adjustment for the period June 15, 1992 through July 22, 1992 and refund/credit for overpayment
Legal Topics
Force Majeure, Billing Adjustments, Contract Interpretation, Strikes Affecting Third Parties, Demand/standby Charges, Remedies Declaration/refund
Source Language
English
Contract Law Commercial Law Utilities Regulation Labour Law Force Majeure Billing Adjustments Contract Interpretation Strikes Affecting Third Parties +2 more

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Parties

Tenneco Canada Inc. doing business as Albright & Wilson Americas

Plaintiff (appellant)

British Columbia Hydro and Power Authority

Defendant (respondent)

Procedural Posture

Contract/commercial Appeal Concerning Electricity Supply Agreement and Billing Adjustments / Court of Appeal Judgment on Rule 18 a Proceeding (final Disposition)

Legal Issues

  1. 1 Whether a Billing Adjustment under clause 18(a) is triggered by causes "expressly stated in this clause" and what those causes are
  2. 2 Whether the term "suspension pursuant to clause 16" in clause 18(d) includes a reduction in the taking of electricity
  3. 3 Whether the term "Strikes" in clause 18(d) is limited to strikes affecting the contracting party or includes strikes at the customer's premises

Ratio Decidendi

Clause 18's phrase "cause expressly stated in this clause" is limited to causes enumerated in clause 18(d); clause 18(d) encompasses a "suspension pursuant to clause 16" and expressly lists "Strikes, legal lockouts, and other labour disturbances". The term "Strikes" in that context includes strikes at Tenneco's customers that forced Tenneco to reduce take, and therefore Tenneco was entitled to a Billing Adjustment for the reduction period. Appeal allowed; Billing Adjustment payable June 15, 1992 through July 22, 1992; overpaid amount understood to be $206,222.08 CAD.

Court Disposition

Appeal allowed; declaration that Tenneco is entitled to a Billing Adjustment for the period June 15, 1992 through July 22, 1992 and refund/credit for overpayment

Orders

  • Allow the appeal.
  • Declare that the pulp mill strike in 1992 constituted a "Strike" for purposes of subclause 18(a) of the Electricity Supply Agreement.