Supreme Court Judgments

Supreme Court of Canada

Adricon Ltée v. East Angus (Town of), [1978] 1 S.C.R. 1107

Date: 1977-12-20

Adricon Limitée Appellant;

and

The Town of East Angus Respondent.

1977: March 16; 1977: December 20.

Present: Martland, Spence, Pigeon, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Municipal law—Modification of a building contract—Additional costs—Judicial admission by counsel for the Town—Failure to comply with administrative formalities—Burden of proof—Arbitration—Cities and Towns Act, R.S.Q. 1964, c. 193, ss. 26(1) and (2), 610—Municipal Works Act, R.S.Q. 1964, c. 177, ss. 1, 5—Municipal Commission Act, R.S.Q. 1964, c. 170, s. 25 (as amended by 1965 (Que.), c. 55, s. 6)—Code of Civil Procedure, art. 950.

Appeal—Failure to comply with formalities not raised at trial—Role of the Court of Appeal.

In May 1972, appelant (“Adricon”) submitted a bid to respondent (“the Town”) to construct an arena for the sum of $408,000. The contract was not signed until October, after the municipal council had passed a resolution authorizing the architect to make certain changes in the original contract. The effect of one of these changes was that the cost of heating and of materials required for protection from frost would be borne by the owner and not the contractor. The Town, however, did not adopt a resolution explicitly approving this change. After completing the work, Adricon sent the Town a claim for $52,504.12, including $24,754.35 for additional excavation and backfilling, plus $27,749.77 for the cost of heating and other measures to protect against frost. Since the parties were unable to come to an agreement, they submitted their dispute to arbitration. Adricon was unanimously awarded the full amount of its claim. The Town objected to homologation of the award on the grounds that the contract did not give the arbitrators authority over subsequent changes to the contract. The Town made an admission about the part of the claim that concerned excavation and backfilling. After referring indirectly to this admission, the Superior Court judge discussed only the decision given by the arbitrators on the temporary heating, and homologated the arbitral award. The Court of Appeal reversed this decision and dismissed the homologation on the grounds that the Town had not complied with the prescribed adminis-

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trative formalities and therefore could not have bound itself. The Court of Appeal also held the admission made by the Town in Superior Court to be void for the same reasons.

Held: The appeal should be allowed.

The Court of Appeal erred in setting aside the admission made by the Town. This admission by counsel ad litem is an irrevocable judicial admission and is equivalent to a confession of judgment. There is no reason to set aside the general principles of civil law because an admission is made by a municipal corporation, at least when such an admission is made in good faith concerning payment of a debt claimed in good faith. Moreover, this admission concerned additional costs claimed under a clause of the original contract and therefore did not arise out of the changes to this contract. It follows that even without the Town’s admission it could not be said that the arbitrators erred in fact or in law on this point.

With regard to the part of the claim that concerns heating costs, the Court of Appeal maintained that the changes to the contract should not have had any effect because of the failure to comply with administrative formalities. When a municipal corporation is a party to a contract that is neither manifestly ultra vires nor intrinsically unlawful, it is the municipal corporation’s responsibility to plead and to establish its own failure to comply with administrative formalities as well as the nature of any nullity that may result. In the case at bar, the Town did not raise this failure at the trial; it was advanced by the Court of Appeal after its deliberation and without reopening the inquiry or holding a re-hearing, which made it impossible for Adricon to introduce either evidence or opposing arguments. In view of the circumstances, therefore, it is necessary to disregard the irregularities raised by the Court of Appeal, except to comment on what that Court says is the obvious irregularity resulting from the lack of a call for tenders and new bids for the change related to temporary heating. This Court does not agree with the conclusion of the Court of Appeal that any change in the original contract entailing an expenditure of $10,000 or more constitutes a new contract subject to the formalities of s. 610 of the Cities and Towns Act. Such an interpretation would render the execution of a large number of public works impracticable. Nothing in the case at bar justifies the conclusion that the parties intended to evade the law, for example by altering the fixed nature of the contract. In any case, evasion cannot be presumed. It must be alleged and proved. The parties simply made a minor

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change, entailing an increase in the price, and under these conditions s. 610 does not apply.

The question of whether the trial judge was right to homologate the arbitral award remains to be examined. This Court is of the opinion that the arbitrators made no error of law in deciding that the Town could change the building contract otherwise than by an explicit resolution of the municipal council, and that this change was part of the contract. There is therefore no reason to rule on whether the judge who was called upon to homologate their award could re-examine it on the grounds of an error in law. As for the question of whether the Town did in fact agree to change the contract, to which the arbitrators replied in the affirmative, this is a question of fact on which it is not necessary for the Court to express an opinion.

City of St-Léonard v. Gravel, [1973] C.A. 779, affd. [1978] 1 S.C.R. 660; Lalonde et al. v. City of Montreal North, [1978] 1 S.C.R. 672; City of St-Romuald d’Etchemin v. S.A.F. Construction Inc., [1974] C.A. 411, distinguished; SS. “Tordenskjold” v. SS. “Euphemia” (1908), 41 S.C.R. 154; Bain v. City of Montreal (1883), 8 S.C.R. 252; The Queen v. Poirier (1899), 30 S.C.R. 36; Laidlaw v. Crowsnest Southern Ry. Co. (1909), 42 S.C.R. 355; Antoniou v. Union Bank of Canada (1920), 61 S.C.R. 253; Lower St. Lawrence Power Co. v. L’Immeuble Landry Ltée, [1926] S.C.R. 655; Dickson v. Kearney (1888), 14 S.C.R. 743; Prince Albert Pulp Company Ltd. et al. v. The Foundation Company of Canada Ltd., [1977] 1 S.C.R. 200, referred to.

APPEAL from a decision of the Court of Appeal of Quebec[1], reversing a judgment of the Superior Court homologating an arbitral award. Appeal allowed.

Georges Savoie, Q.C., and R. Tanguay, for the appellant.

Albert Rivard, Q.C., for the respondent.

The judgment of the Court was delivered by

BEETZ J.—The appeal is from a decision of the Court of Appeal of Quebec, reversing a judgment of the Superior Court homologating an arbitral award and ordering the Town to pay Adricon the sum of $52,504.12 plus interest for one year at eight per cent, that is $4,200.33, plus costs. A

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summary of the decision of the Court of Appeal has been published: [1976] C.A. 399.

The circumstances that gave rise to the dispute go back to 1972. On May 9, 1972, Adricon submitted a bid to the Town to construct an arena for the sum of $408,000. This offer was not accepted until October 2. The building contract was signed on October 21 during a meeting attended by Adricon’s representatives, the mayor, six municipal councillors, the secretary‑treasurer of the Town and the architect. The architect took minutes of the meeting, which will be discussed later. The municipal council had passed a resolution on October 10 authorizing the architect to [TRANSLATION] “modify the plans for the relocation of the arena in order to allow the contract with the general contractor, Adricon Ltée, to be signed by October 21, 1972”. The same resolution also authorized the mayor, one municipal councillor and the secretary-treasurer to sign the contract on behalf of the Town.

The arena was built on the new site.

After completing the work, Adricon sent the Town a claim for $52,504.12, including $24,754.35 for additional excavation and backfilling (according to the arbitral award), plus $27,749.77 for the cost of heating and other measures to protect against frost. Since the parties were unable to come to an agreement regarding this claim, they submitted their dispute to arbitration in accordance with clause 10.11 of the building contract, which reads in part as follows:

[TRANSLATION] In case of a dispute between the OWNER or the ARCHITECT (acting on his behalf) and the CONTRACTOR, during or after the performance of the work or after the contract has expired or been avoided, or after any breach of its provisions, regarding any matter arising out of the contract, either of the parties to this contract shall be entitled to notify the other party of this dispute and request that it be arbitrated.

Each party shall thereupon appoint an arbitrator, and these arbitrators shall jointly select a third arbitrator. The decision of two of these arbitrators shall be final and binding upon the parties, who agree that their

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disputes shall be settled in this way, by arbitration alone and not by recourse to legal proceedings in any court.

The mandate of the arbitrators is defined more specifically in the arbitral submission contained in the correspondence exchanged by counsel for the parties, and in particular in a letter dated May 9, 1973 from counsel for Adricon to counsel for the Town:

[TRANSLATION] Further to our recent correspondence with the Town of East Angus and yourself and to our discussion, we wish to inform you that our client, Adricon Ltée, has now decided to avail itself of the provisions contained in the specifications for general work on the East Angus Arena, and in particular in clauses 10.5 and 11, which provide for arbitration in case of a dispute between the owner and the contractor.

The dispute concerns the accounts submitted by Adricon Ltée to the Town of East Angus, for additional work required by the architect, and for heating and temporary shelter costs resulting from the delay in performing the work due to the change of site and the change in the expected date of commencement of the work, for both of which the Town of East Angus is responsible.

The designation of the arbitrator chosen by Adricon follows.

On June 4, 1973 counsel for the Town replied, merely to inform counsel for Adricon that an arbitrator had been chosen by the Town.

The two arbitrators agreed on the choice of a third arbitrator. The arbitration took place, and Adricon was unanimously awarded the full amount of its claim with interest for one year at eight per cent, and with the arbitrators’ fees to be paid by the Town.

Adricon applied for homologation (950 C.C.P.). The Town objected to the homologation and obtained leave to present arguments in writing. On the day fixed for the inquiry and hearing the parties called no witnesses, but merely produced various documents all described as exhibits for Adricon. The Town thus presented no evidence in support of its arguments, which moreover consisted entirely of generalities. The Town made an admission, however, about the part of the claim

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that concerned additional excavation and backfilling. In its decision, the Superior Court referred indirectly to this admission: after quoting the submission clause, it noted:

[TRANSLATION] The parties do not dispute the validity of this clause or the form of the submission and they limit the issue to the decision given by the arbitrators on the temporary heating.

Subsequently, the trial judge discussed only the decision given by the arbitrators on the temporary heating.

Clause IJ.7 of the specifications states that the contractor is responsible for providing temporary heating. The minutes taken by the architect on the day the contract was signed mention four changes in the contract. The first three, which are not concerned in the dispute, are really only proposed changes: it is stipulated separately for each of them that the price shall be submitted to the owner before the work is begun. The fourth change mentions that the cost of heating, of the straw to be used and of all materials required for protection from frost while the work is being done shall be borne by the owner. This fourth change does not include an approximate cost and does not stipulate that subsequent approval by the owner is necessary. The minutes end, however, as follows:

[TRANSLATION] The contract was signed for the sum of $408,000.00. The preceding items will be added to the contract upon approval by the owner.

The Town objected to homologation on the grounds that it had merely discussed and had not approved the change in the building contract, and that the arbitrators had therefore exceeded their authority by arbitrating an issue that did not arise out of the contract.

As noted by the trial judge, the arbitrators interpreted [TRANSLATION] “the resolution of October 10, 1972, the decision taken at the meeting of October 21, 1972 and the signature of the contract on the same date as forming a whole binding on the parties”. The trial judge expressed the opinion that this was precisely the issue that had been submitted to them and that it consisted in a question of law: which of the two parties, the Town or the contractor, had to pay the cost of the

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temporary heating mentioned in the contract? He held that, since he could not enquire into the merits of the contestation (art. 950 C.C.P.), he did not have to decide whether the arbitrators had improperly weighed the evidence or erred in law. He therefore dismissed the Town’s objection, because it concerned the merits of the contestation, and he homologated the arbitral award.

In the Court of Appeal the Town acknowledged having made an admission in the Superior Court concerning additional work valued at $24,754.35. However, it also argued in its factum that [TRANSLATION] “a municipal corporation can act only by resolution” and that [TRANSLATION] “the resolutions binding the municipal corporation do not specify approval of heating costs and additional work”.

The Court of Appeal began with the latter argument. It allowed the appeal and dismissed the application for homologation on the basis of certain arguments which did not appear in the record before its decision, and which it apparently advanced proprio motu after its deliberation and without reopening the inquiry or holding a re-hearing, a manner of proceeding to which Adricon objected in this Court. These arguments were as follows: more than a resolution is required to bind the municipal corporation; there must be a by-law providing for appropriation of the necessary funds; in addition, this by-law must be approved by the Municipal Commission and followed by a call for new public tenders; failure to comply with these formalities renders absolutely null the resolution of October 10, 1972 authorizing the architect to modify the plans, as well as the resolution containing the agreements deemed to have been concluded on October 21 when the building contract to give effect to these modifications was signed; this resolution and these agreements are the only basis of Adricon’s claim; accordingly, the arbitral award is invalid because it was based on acts that were absolutely void; the same is true for the same reasons of the admission made by the Town in Superior Court. The Court of Appeal referred to the following provisions: s. 610(1) of the Cities and Towns Act, R.S.Q. 1964, c. 193, concerning the public tenders required for contracts for cer-

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tain municipal works; ss. 1 and 5 of the Municipal Works Act, R.S.Q. 1964, c. 177, regarding appropriation of the moneys required to pay for municipal works; and s. 25 of the Municipal Commission Act, R.S.Q. 1964, c. 170 amended by 1965 (Que.), c. 55, s. 6. The Court of Appeal also referred to certain of its decisions including City of St-Léonard v. Gravel[2], recently confirmed by this Court on September 30, 1977,[3] and City of St-Romuald d’Etchemin v. S.A.F. Construction Inc.[4].

In my view, the Court of Appeal erred in setting aside the admission made by the Town.

The trial judge noted simply that the parties [TRANSLATION] “limit the issue to the decision given by the arbitrators on the temporary heating”, but he homologated the arbitral award for the full amount. The Court of Appeal referred to [TRANSLATION] “the admission made by appellant in Superior Court and acknowledged by it in this Court, regarding the sum of $24,754.35 for additional work”. It must be concluded that the Town acknowledged that the arbitral award was correct with regard to Adricon’s claim for excavation and backfilling. It must also be concluded that the admission was made in Court by counsel for the Town since the parties called no witnesses and submitted no documents on the subject.

This admission at the hearing by counsel ad litem is an irrevocable judicial admission (art. 1245 C.C.) and is equivalent to a confession of judgment (Mignault, Droit civil canadien, Vol. 6, at. pp. 117 to 126; Langelier, De la preuve en matière civile et commerciale, at p. 20, Nos. 44 to 46; Nadeau et Ducharme, Traité de droit civil du Québec, Vol. 9, at pp. 512 to 519, Nos. 605, 606, 607 and 612). Since the Town did not deny the authority of its counsel, if indeed it could have done so on these grounds, and since, moreover, no one disputed the said counsel’s mandate, both the Superior Court and the Court of Appeal had no choice but to give judgment for at least the amount mentioned in the admission. In other words, I do not think that the general principles of civil law regarding judicial admissions should be

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set aside because the party making the admission is a municipal corporation, at least when this admission is made in good faith concerning payment of a debt claimed in good faith. Good faith is presumed, and it has not been called into question by anyone in the case at bar.

Moreover, it appears to me that the Court of Appeal was mistaken with regard to the basis of the admission made by the Town. This admission should be put back into perspective. In finding in favour of Adricon with regard to the additional work of excavation and backfilling, the arbitrators decided that the architect had recognized and approved this work and they referred expressly to clause 2C.3 of the building contract:

[TRANSLATION] Additional excavation:

When the excavation work has been completed to the depth indicated on the plans, the CONTRACTOR shall immediately notify the ARCHITECT SO that the latter may inspect it. If the ARCHITECT considers it necessary, the excavation shall be made still deeper and the CONTRACTOR shall receive additional payment for his work, based on the prices stipulated in his bid for his work. (The emphasis is mine.)

(This clause, incidentally, is not found in the joint record of the Court of Appeal, which merely refers to the specifications in an inset. The specifications are found in the original record.)

The validity of clause 2C.3 in the building contract was not disputed by the Town, whose principal argument was that Adricon’s claim did not arise out of the building contract. The Town’s admission can therefore have only one meaning: this part of Adricon’s claim does arise out of the building contract which binds the Town. Furthermore, the minutes taken by the architect on October 21 do not mention the excavation and backfilling among the desired changes in the contract. Consequently, this additional work does not arise out of these changes. Finally, the only information about this additional work found in the record concerns the cost, the type of work (excavation and backfilling), and the architect’s approval. Under these circumstances, in view of clause 2C.3, and even without the Town’s admission, I could

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not decide, if I were called upon to do so, that the arbitrators erred in fact or in law on this point.

There remains the part of Adricon’s claim that concerns heating costs. According to the Court of Appeal, the changes to the contract regarding this point should not have had any effect even if, and this was not the case, they had been explicitly approved by a resolution of the municipal council.

I do not share this point of view. When a municipal corporation is a party to a contract that is carried out and from which it benefits; when this contract is neither manifestly ultra vires nor intrinsically unlawful; and when the reason advanced to release the municipal corporation from its obligations under the contract is failure to comply with administrative formalities, it is the municipal corporation’s responsibility to plead and to establish its own failure as well as the nature of any nullity that may result. Moreover, it must do so in such circumstances that it remains possible for the other party to oppose it by producing evidence and arguments to the contrary. This last requirement is a general one, not confined to administrative law, and it must be applied with particular strictness at the appellate level: SS. “Tordenskjold” v. SS. “Euphemia”[5], at pp. 163 to 165. The headnote of this decision reads in part as follows:

A Court of Appeal should not consider a ground not previously relied on unless satisfied it has all the evidence bearing upon it that could have been produced at the trial and that the party against whom it is urged could not have satisfactorily explained it under examination.

(See also to the same effect Bain v. City of Montreal[6], at pp. 265, 291 and 292; The Queen v. Poirier[7], at pp. 38 and 39; Laidlaw v. Crowsnest Southern Ry. Co.[8], at pp. 359 and 360; Antoniou v. Union Bank of Canada[9], at pp. 260 and 262; Lower St. Lawrence Power Co. v. L’Immeuble

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Landry Ltée[10], at pp. 661 to 663.) The reasons for not accepting the arguments cited by the Court of Appeal apply even more strongly to administrative law because of the rule Omnia praesumuntur rite acta: see, though only as an analogy, Dickson v. Kearney[11].

That is why it seems necessary to me, in view of the highly unusual circumstances surrounding this case, to disregard, with one exception, the administrative irregularities, if any, that may have affected the Town’s actions.

The only so-called irregularity that calls for comment, because the Court of Appeal said that it was obvious, is the lack of a call for tenders and new bids for the change related to temporary heating. Assuming that there was neither a call for tenders nor any new bids in this connection, I do not therefore conclude, as did the Court of Appeal, that s. 610 of the Cities and Towns Act was contravened:

610. (1) Unless it involves an expenditure of less than $10,000, no contract for the execution of municipal works or the supply of equipment or materials shall be awarded except after a call for public tenders by advertisement in a newspaper.

(2) …

(3) Tenders shall not be called for nor shall the contracts resulting therefrom be awarded except on one or the other of the following bases:

(a) for a fixed price;

(b) at unit prices.

(4) …

(5) …

(6) …

(7) The council shall not, without the previous authorization of the Minister of Municipal Affairs, award the contract to any person except the one who made the lowest tender within the prescribed delay.

It does not follow from this provision that any change in the original contract, even one that entails an expenditure of $10,000 or more, necessarily constitutes a new contract which is itself subject to the formalities prescribed by s. 610. Such an interpretation would render the execution

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of a large number of public works impracticable and I cannot believe that this was the intent of the legislator. Regard must be had to the specific circumstances of each case, such as whether the changes are minor in relation to the contract as a whole, the presence or absence of consideration, and in particular the intent of the parties, since they are clearly not permitted to evade the law by altering, for example, the fixed nature of the contract. In City of St-Romuald d’Etchemin (supra), the parties tried to raise the contract price because of increased labour costs by diverting to the contractor part of a winter works grant to the city: the Court of Appeal concluded, inter alia, that this constituted an unlawful change in an essential term of the contract, namely the fixed price. In other words, they concluded that the parties had evaded s. 610 of the Cities and Towns Act. In order to arrive at this conclusion, however, it was not necessary to hold that any change that adds $10,000 or more to the fixed price alters the fixed nature of the contract and must be subject to the provision of s. 610. Moreover, this was only one of the reasons advanced by the Court of Appeal in City of St‑Romuald d’Etchemin (supra).

In the case at bar as I understand it, the parties had originally agreed in May, when the bids were submitted, that the cost of heating would be borne by Adricon. Since the bids were not accepted until October, however, the parties then stipulated that the cost of heating would be borne by the Town. We do not know whether the parties were able at that time to estimate this cost, which in fact amounted to approximately seven per cent of the fixed price. I see nothing in this set of circumstances to justify the conclusion that the parties intended to evade the law. In any case, evasion cannot be presumed. It must be alleged and proved. In my view, the parties simply made a minor change, entailing an increase in the price but not altering the fixed nature or any essential term of the contract. Under these conditions, s. 610 of the Cities and Towns Act does not apply.

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Since any administrative irregularities committed by the Town must be disregarded, the problem must be approached in another way.

The question is whether the trial judge should have refused to homologate the arbitral award for the reasons advanced by the Town.

The trial judge was undoubtedly correct in identifying the dispute submitted to the arbitrators as follows: which of the parties, the Town or Adricon, had to pay the cost of temporary heating mentioned in the building contract? The trial judge was also correct in saying that the arbitrators ruled only on the dispute submitted to them.

This dispute includes several questions, which the Town maintained must be answered in the negative.

(1) Could the Town change the building contract otherwise than by an explicit resolution of the municipal council?

(2) Did the Town in fact agree to change the contract as Adricon maintains it did?

(3) Was this change part of the contract?

The first and third questions are questions of law. The second is a question of fact.

I will deal first with the questions of law.

The arbitrators implicitly replied in the affirmative to the first question, and in my view they were correct. Suppose that the building contract had been between private individuals. If a judge took into consideration the time that elapsed between the bid and the contract, the change of the season during which the work was performed, the authority given to the architect by the owner to modify the plans and specifications, the architect’s express statement in the presence of the contractor and the owner or his agents that the heating costs would be assumed by the owner contrary to what had originally been agreed; and if the judge concluded that the owner had given his consent, basing this conclusion on art. 988 C.C. regarding tacit consent, art. 1242 C.C. regarding presumptions of fact, and the law of mandate, could such a judge be said to have erred in law? It seems to me that he could not. Why should it be otherwise when the owner is

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a municipal corporation? A municipal corporation is a political body, which falls within the control of the civil law in its relations, in certain aspects, to individual members of society: 356 C.C. The reservation expressed by this article in the words “in certain respects” refers to special provisions of the type found in the Cities and Towns Act. Section 26(1) of this Act provides that a municipal corporation, under its corporate name, shall have perpetual succession and may, inter alia, “enter into contracts, transact, bind and oblige itself and others to itself, within its powers”. It does not specify that a municipal corporation may enter into contracts only by means of an explicit act uttered by itself, contrary to art. 988 C.C. for example. Section 26(2) of the Cities and Towns Act confers upon municipal corporations additional powers which they may exercise by resolution of their councils, but this is an enabling provision and these additional powers are not at issue in the case at bar. No doubt the arbitrators, who were not trained in the law, failed to mention the provisions to which I refer. They do, however, mention the architect’s mandate, his statement in the presence of the Town authorities and the intentions of these authorities. Moreover, they were informed of the delay in executing the work by the provisions of the arbitral submission. The minutes taken by the architect may have been questionable evidence, but there is no indication that their admission was objected to. I therefore can find no error of law on the part of the arbitrators with regard to the first question.

The answer to the third question seems obvious to me. The change in the contract, if any, in connection with the heating cannot be regarded as anything other than a part of the contract. It is a minor part of an elaborate plan and cannot exist apart from the contract. It must therefore be governed by the general provisions of the contract including the submission clause. There is no indication that the arbitrators thought otherwise.

The second question that the arbitrators had to decide is a question of fact and is related to the merits of the dispute. I do not think it is necessary

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for me to express an opinion on the arbitrators’ reply to this question. Moreover, since I am of the opinion that the arbitrators did not err in law, I shall express no opinion on whether the judge who was called upon to homologate their award could re-examine it on the grounds of an error in law.

The case at bar may be distinguished from City of St-Léonard v. Gravel (supra), in which the municipality’s failure to comply with administrative formalities necessary to the validity of a contract had been explicitly pleaded by the city in its defence in the Superior Court and formed the crux of the issue decided by the Superior Court, the Court of Appeal and this Court. Moreover, in Gravel the municipality had not had the benefit of the work of the engineers who brought the action against it. The same is true in Lalonde et al. v. City of Montreal North[12], also delivered by this Court on September 30, 1977. I will add that in both these cases, before ruling on pure questions of law that had not been discussed at the first hearing, this Court ordered a re-hearing.

I conclude, therefore, that the trial judge had no reason not to homologate the arbitral award.

He did so simply adding the interest for one year at eight per cent which on March 27, 1974, the arbitrators had already included in their award. In its brief, Adricon asks this Court for interest at eight per cent from the time notice of the arbitral award was served. This request appears to be justified and may be granted under s. 52 of the Supreme Court Act; see also Prince Albert Pulp Company Ltd. et al. v. The Foundation Company of Canada Ltd.[13].

The arbitrators included payment of their fees in the enacting terms of their award. The Superior Court judgment omits this provision and this Court has not been asked to restore it. I can only express the opinion that the arbitrators are entitled to their fees if they have not already been paid.

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I would allow the appeal, with costs in all courts; I would set aside the judgment of the Court of Appeal and restore and vary the judgment of the Superior Court as follows: all words following the amount of the judgment are replaced by: “with interest at the rate of eight per cent per annum from the date of service of the abitration award”.

Appeal allowed with costs.

Solicitors for the appellant: Barnard, Fournier, Savoie & Associates, Sherbrooke.

Solicitors for the respondent: Desmarais, Scott & Rivard, Sherbrooke.