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Edmonton (City) v. Lovat Tunnel Equipment Inc.

Between The City of Edmonton, plaintiff, and Lovat Tunnel Equipment Inc. and Rotek Incorporated, defendants

[2000] A.J. No. 89
2000 ABQB 40
Action No. 8803-05078

Alberta Court of Queen's Bench
Judicial District of Edmonton
Lee J.

Heard: January 10, 2000.
Judgment: January 27, 2000. Filed: January 28, 2000.
(15 paras.)

Counsel:

Pierre Mousseau and Sandra Anderson, for the applicant Rotek Inc.
Doris Bonora, William Barclay, and Joseph Noel, for the City of Edmonton.
Robert Maxwell and L. Zurowski, for Lovat Tunnel Equipment Inc. respondents.

[Ed. note: An Erratum was filed on February 7, 2000; the correction has been made to the text and the Erratum is appended to this judgment.] REASONS FOR JUDGMENT IN THE MATTER OF A VIEW
LEE J.:-

SUMMARY

The Plaintiff, The City of Edmonton ("the City"), made an application for the Court to take a view of a replacement bearing for the City's M246 Lovat Tunnel Boring Machine. The City proposed that the view occur as follows:

Only counsel for the parties and the Justice be present. No clients will be present.

The bearing will be viewed and the constituent parts will be pointed out by counsel for the Plaintiff. The Plaintiff will use a script approved by all counsel. All counsel will have the opportunity to address questions posed by the Justice.

No evidence will be taken at the view. No court reporter will be present.

The cutter head will be viewed as well but in the position it is in on the ground.

Any comment made about eh cutter head will also be scripted and presented by the Plaintiff's counsel. Again any questions posed by the Justice may be addressed by all counsel.

The view of the bearing will take place just prior to the testimony of Edward Hamre.

On January 26, 2000, Counsel for the City presented me with a proposed script for the view. However, the parties were not yet in firm agreement as to the content of the script. The script is attached as Appendix A to this decision.

ANALYSIS

Rule 253 of the Alberta Rules of Court provides the basis for me to take a view of the bearing.

The judge by whom any action is tried with or without a jury or before whom any action is brought by way of appeal, may inspect any property or thing concerning which any question arises in the action.

The decision in G. & J. Parking v. Oland (1978), 16 A.R. 293 (Q.B.), is of assistance in determining whether I should take a view of the bearing and on what conditions. In that case, Laycraft J. stated at p. 296:

A view by the Court is a procedure to be carried out with a considerable degree of caution. The normal facilities of the court are not available, so that if anything is said at the location, it does not appear in the record of the trial. One party or the other may have missed something said and so have no opportunity to state his position with respect to it. It is therefore desirable that the "view" be just that, rather than a combination of argument, evidence and visual observation.

Accordingly, in Mangion v. Managen Project Management Ltd. (1989), 96 A.R. 122 at 126 (Q.B.), Trussler J. stated:

During the course of the trial I was requested to take a view of the house. Rule 253 of the Rules of Court provides for this procedure.

I made it a condition of my visit to the residence that my attendance be limited to visual observation. Having heard the evidence I was able to identify the problem areas. It was my wish not to have any conversation about what I was seeing as there was no court reporter present to transcribe any relevant commentary into the record.

Based on the foregoing cases, it is not desirable for Counsel to speak during a "view" when a court reporter is not present. However, given the technical nature of this case and the fact that I may not have had the benefit of hearing much evidence in a complex Very Long Trial, I would require that the constituent parts of the bearing be identified to me during my view. Without this, the view will be of limited assistance in helping me understand the evidence presented at trial.

Therefore, I will take a view of the bearing on the condition that Counsel prepare and agree to a script which identifies the constituent parts of the bearing but does not provide any comment regarding any part of the bearing. Moreover, during the view, Counsel themselves will not provide any commentary regarding the bearing. Counsel will only indicate the location of items included in the script.

With respect to the script proposed by the City, I find that the script goes beyond identifying the relevant parts of the bearing. The script identifies the components of the bearing but also states how the bearing works and that certain components are damaged, worn, or rusted.

The content of the proposed script is analogous to a demonstration, in that it details the parts of the bearing, how they operate, and their condition; rather, than simply identifying relevant parts. In Wilson v. Southam (1984), 31 Alta. L.R. (2d) 277 (Q.B.), Dixson J. allowed an application for a view and demonstration of the defendant's computer system, on the basis that a court reporter and court clerk were present. Similarly, in Edmonton Flying Club v. Northward Aviation Ltd., [1978] 4 W.W.R. 421 (Q.B.), Moore A.C.J. (as he then was) went with court reporters and counsel to view a furnace which allegedly malfunctioned and caused a fire.

In Wilson, supra, Dixon J. quoted approvingly from Meyers v. Govt. of Man. (1960), 33 W.W.R. 461 at 469-70 (C.A.), wherein Schultz J. stated:

I think it is a matter of everyday practice in our courts that scale models, or similar objects, are tendered and accepted as real evidence. Such evidence may offer stronger and more convincing proof of the fact claimed than the oral evidence of witnesses. The judge who views them in the courtroom is in no different position there than when, with all the necessary safeguards and conditions met, he views them outside the courtroom [emphasis added].

In the instant case, taking a view of the bearing is appropriate because the bearing cannot be brought to court and given the complexity and nature of this lawsuit a view will be helpful in understanding and applying the evidence. However, normal and necessary court safeguards should still be followed as my observations and Counsel's commentary will constitute evidence upon which, along with all the other evidence, I will make my final decision. As stated by Laycraft J. in G. & J. Parking v. Oland, supra:

A trial judge sitting alone is entitled to take into account that which he sees on his inspection as being, in itself, evidence which is to be related to all the other evidence for the purpose of making the decision

In the proposed script, Counsel intends to review the relevant parts of the bearing and also make comments regarding their function and condition. In essence, Counsel wants to step beyond a strict "view," to a view with commentary. This type of commentary should occur with a court reporter so that it forms part of the record.

Therefore, I will take a view of the bearing with the proposed script on the condition that a Court reporter is present. If this condition is met, Counsel will be permitted to identify the relevant parts of the bearing, provide commentary, and answer any questions that I pose to them. Further, with a court reporter present, Counsel for the City or their experts will be permitted to demonstrate the functioning of the bearing.

To further assist in this regard, I am making provisions for videotape with audio sound of the "view".

CONCLUSION

I find that a view would be of assistance in this case and I am prepared to take a view of the bearing on the condition that:

Counsel prepare and agree to a script outlining the constituent parts of the bearing and agree not to talk during the view, but to identify items contained in the script; OR

A Court Reporter is present during the view which will be videotaped with audio sound.

LEE J.

* * * * *

APPENDIX A

VIEW OF BEARING AND TBM

Bearing

In this building are stored the remains of the bearing which is in question in this lawsuit. The main components, and the components which I wish to describe today, are the outer ring, the inner ring, the raceways in the inner and outer rings, the balls, the ball cages, and the cage grooves which are found in the raceways.

So that we understand the terms which will be utilized, I will give a very brief and simplified description of how a bearing works, with specific references to the component parts which will be described.

A large diameter bearing, of the type which we have here, is comprised of two rings, one of which is fixed, and other of which moves. In between these rings are balls, which allow for this rotational movement. Both the inner and outer rings have raceways, which are basically pathways for the balls. The balls themselves are housed in a cage which fits into a groove located at the bottom of the raceway.

I will now show you some of these parts so that you will have a better understanding of how those components operate.

Sitting up on barrels is the outer ring of the bearing. This is the so-called "fixed" ring, in that it was bolted to the TBM itself. You will note that a segment of the outer ring has been cut out. This was done for testing purposes. You can clearly see the outer ring raceway on the inside circumference of the ring. You can also see the cage groove in the raceway.

I am now showing you one of the ball cages themselves. Many of the cages are in a damaged condition, with different cages being more damaged than others. You can see, for instance, that on this particular cage some of the metal is missing or worn (indicate damage on example chosen).

As previously indicated, the ball cage fits into a groove located on each side of the raceway. We can see here how the cage would fit into the outer ring raceway. When the rings are put together, the cage would float inside the two grooves on each side of the raceway. This would allow the cages themselves to rotate freely with the moving inner ring, although not necessarily at the same speed. There are ten of these ball cages, each of which houses ten balls.

All of these ball cages are here and, as you will see, show various states of wear and damage. We also have in these boxes what remains of the balls and ball segments. As you can see, these too are in various states of damage. One or two of the ball segments may have had flanges welded to them for testing purposes. You will also note that many of these balls or ball segments have rust on them. In that regard, all of these parts have been in storage for a considerable length of time and certainly the rust is not indicative of how the balls appeared upon inspection after failure. Likewise, the other component parts have been stored and moved on a number of occasions.

Going back to the outer bearing ring, you will also note several grooves in the ring itself. These are seal grooves, into which would be fitted seals designed to keep contamination out of the bearing. A small piece of such a seal can be seen in the groove close to the segment cut away. It is in a state of obvious deterioration.

The bearing itself contained a number of seals, not all of which were identical. Those, however, will be better described in evidence. You will also see in the expert information, a number of diagrams which show these seals. There are also seal rings which hold the outside seals. Those rings are also here, and bolt onto the inner ring.

You can also see on the outside of the ring, the original grease holes which are now plugged. These grease holes could not be utilized due to the construction of the TBM. New holes were therefore drilled which intersect the original grease holes in the middle of the ring. The effect of all of this was to reroute the grease so that it could enter at a new location, but be dispersed within the bearing at its original location. There are three grease holes, one of which goes to the bearing raceway itself, while the other two lead to the outside seals. There are four sets of these holes (each comprised of three holes), and those are located approximately 90 degrees apart.

I earlier mentioned that I would not attempt to describe all the marks on the bearing raceway. Obviously, however, the raceway has been damaged. And it may be worthwhile for you to take a few moments to inspect the raceways and observe those markings.

It is also appropriate to advise your Lordship that you will hear evidence about "original grind marks". These are marks that are left from the manufacturing process itself and, where present, are an indication that the raceway is in the as manufactured state. You can see that the raceway on this outer ring, where not damaged, is shiny in appearance and if you look in one of those areas, you can see the original grind lines left from the manufacturing process itself.

Inner Ring

I earlier mentioned that the bearing was comprised of an inner ring and an outer ring. Also present is the inner ring which you can see over here. You will note that there are gear teeth on the inside circumference of the inner ring. Gear pinions fit into these teeth which were connected to ten hydraulic motors, which provided the power to rotate the inner ring of the bearing. The cutting head of the TBM was attached to this inner ring of the bearing and this is what drove the cutting head itself.

You can see that the inner ring of the bearing also contains a raceway, and a cage groove in the raceway. When put together, the two raceways enclose the balls upon which the bearing rotates.

The cutting head of the TBM has been taken off and is sitting in the yard. Unfortunately, as it is sitting on the ground, we can only see the cutting head from one perspective. Likewise, the body of the TBM has been dismantled into two parts and is also in the yard. However, given the manner in which it is being stored, we can only look at the outside of the TBM body. Next, we can go outside to take a look at these parts, and the sand hood which was constructed for the TBM, but before we do, are there any questions which your Lordship would like us to address?

View of TBM

You can see that the body of the TBM is in two segments, both of which are lying with their open ends pointed up and down. Due to the size of the cylinders, we cannot see within them, but this does give you an idea of the size of the machinery which we are talking about.

The smaller cylinder actually has a hole cut in the side and you can have a limited view of the interior. This is the rear end of the TBM out of which the ribs would be pushed. Unfortunately, it is the other cylinder which contained most of the working parts.

As you will remember, however, we do have pictures of the TBM in the courtroom, and there are also pictures of the TBM contained in our submissions.

Cutting Head

You can see the cutting head which is sitting on blocks. The portion which is on the ground would be the area to which the bearing would attach. Unfortunately, that part of the cutting head cannot be seen.

You can, however, see the nose cone, or tip, of the cutting head, which would be the most forward point in the TBM.

You can also see the cutting teeth attached to the cutting head.

As well, you can see the flood doors of the cutting head. These doors can be opened or closed as may be required.

Basically, the whole cutting head rotates and the teeth thereby cut into the ground ahead of the TBM. That material is then passed through the flood doors and dumped onto a conveyor system. The conveyor system then takes the dirt to the rear end of the TBM and dumps it into a waiting rail car.

This TBM is fitted with what is called an eccentric cutter. This simply means that the head can be programmed to cut more on one side than on the other. This has the effect of turning the TBM along a curved tunnel path. This mechanism can be seen on the cutting head.

Before we proceed to the sand hood, are there any questions which your Lordship would like addressed?

Sand Hood

Here is the sand hood which was constructed for the TBM. The sand hood was constructed during the tunnelling project under discussion, but was never utilized. This whole issue will be a matter which should be addressed in evidence during the trial. As you can see, the sand hood is quite rusted as a result of the material it is built from, and due to the fact that it has been stored outside for a considerable length of time.

Unless your Lordship has any further questions, that concludes the view.

* * * * *

ERRATA

Filed: February 7, 2000

On the first page of the Judgment please note that Joseph Woel should be Joseph Noel

Also on the first and last page the following has been changed to read:

REASONS FOR JUDGMENT IN THE MATTER OF A VIEW of the HONOURABLE MR. JUSTICE DONALD LEE

QL Update: 20000211
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