COURT OF APPEAL FOR ONTARIO

CITATION:
Shaw Satellite
    G.P. v. Pieckenhagen, 2012 ONCA 192

DATE: 20120323

DOCKET: C54202 and C54205

MacPherson, LaForme JJ.A., and Pattillo J. (
ad
    hoc
)

BETWEEN

Shaw Satellite G.P., c.o.b. as Shaw Direct

Plaintiff (Respondent)

and

Curt-Michael Pieckenhagen a.k.a. Curt Michael
    Pieckenhagen a.k.a. Curt Pieckenhagen a.ka. Curt-Michael Picckenhagen a.k.a.
    Kurt Micahel, a.k.a. Pat Turner, Kurt Pieckenhagen, Megan Anderson, Julita
    Pieakenhagen, Julite-Luise Pieckenhagen, a.k.a. Jules Luise a.k.a. Jules
    Michael, Vera Pieckenhagen, Christopher Brooks, a.k.a. Chris Brooks a.k.a.
    Andrew Brooks, Nicole Pieckenhagen, 1125749 Ontario Limited, Eccelerated
    Digital, Accelerated Digital Communications Inc., 121429 Ontario Inc., 373041
    Ontario Inc., Graydon Hall Property Management Ltd., GH Capital Corporation,
    Andrew Brooks, Theo Bulk, Jules Luise, Jules Michael, Kurt Michael and Pat
    Turner

Defendants (Appellants)

Michael A. Spears for the appellants Curt-Michael Pieckenhagen, 1125749 Ontario Limited, Eccelerated Digital, Accelerated Digital Communications Inc. and 121429 Ontario  Inc.

Melvyn Solmon, Nancy Tourgis, Jonathon Kappy, for the appellants
    373041 Ontario Inc., Kurt Pieckenhagen, Julita Pieakenhagen, Julite-Luise
    Pieckenhagen, a.k.a. Jules Luise a.k.a. Jules Michael, Vera Pieckenhagen,
    Christopher Brooks, a.k.a. Chris Brooks a.k.a. Andrew Brooks, Nicole
    Pieckenhagen, Graydon Hall Property Management Ltd., GH Capital Corporation

Christopher D. Bredt and Isabella Massimi, for the
    respondent

Heard and released orally: March 21, 2012

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated July 14, 2011.

ENDORSEMENT

[1]

The defendants appeal from the
    order of the motion judge dated July 14, 2011 dismissing their motion under s.
    7(1) of the
Arbitration Act
,
    1991, S.O. 1991, C.17 (the Act) to dismiss or permanently stay the respondent
    Shaw Satellites (Shaw) action commenced in the Superior Court against them
    (the Action).

[2]

The defendants are the owners
    and/or operators of three apartment buildings in Toronto. Shaw alleges that the
    defendants fraudulently obtained its programming and illegally transmitted it
    to hundreds of tenants in their apartment buildings. Shaw alleges that the
    defendants obtained the programming by using mainly fictitious names and
    addresses to obtain a number of Shaw residential subscriber accounts. The
    accounts and receivers associated with them were then used as part of a
    satellite master antennae television system to then transmit the programming to
    the tenants.

[3]

In order to obtain the right to receive and review Shaw
    programming, a subscriber must enter into the Shaw Residential Agreement (the
    Agreement). The Agreement contains a number of terms and conditions including
    that the receivers be located at the residence listed on the customers
    account, that the right to receive programming is restricted to the customers
    residence and the programming cannot be rebroadcast, reproduced or transmitted
    except in accordance with the Agreement. The Agreement also contains an
    arbitration clause which is the subject matter of the dispute before us.

[4]

The motion judge dismissed the appellants motion on three mutually
    exclusive grounds.

[5]

First, he held that the defendants were not entitled to bring a
    motion for a stay pursuant to s. 7(1) of the Act given that they had not
    asserted that they were parties to the arbitration agreement. In so concluding,
    he held that the competence-competence principle did not apply in the
    circumstances of the case.

[6]

Second, and in the alternative, the motion judge held that if the
    competence-competence principle did apply, the case fell within an exception to
    the principle given that the pith and substance of the dispute between the
    parties was outside the jurisdiction of the arbitrator.

[7]

Finally, and in the further
    alternative, and if the exception to the competence-competence principle did
    not apply, the motion judge noted that s. 7(5) of the Act applied and refused
    to grant a partial stay pursuant to that section on the ground that it would
    create, among other things, a multiplicity of proceedings.

[8]

The appellants raise three grounds of appeal:

1.

The motion judge
    erred in finding that the appellants were not entitled to bring a stay motion
    under s. 7(1) of the Act because they did not assert that they were parties to
    the arbitration agreement. In so finding, the appellants submit the motion
    judge misapplied the competence-competence principle;

2.

The motion judge
    erred in holding, in the alternative, that if the competence-competence
    principle did apply, the case at bar was an exception to the principle given
    that the pith and substance of the Action was outside the jurisdiction of the
    arbitrator; and

3.

The motion judge
    further erred in refusing to grant the stay under s. 7(5) of the Act on the
    basis that it would result in a multiplicity of proceedings and certain
    defendants were not party to the arbitration agreement.

[9]

In our view, the motion judge was correct in concluding, as he
    did, that the appellants did not meet the onus of establishing that they are
    entitled to invoke s. 7(1) of the Act. While that conclusion is sufficient to
    deal with the appeal, we also agree with the motion judges alternate finding
    that s. 7(5) applies and his decision to refuse to grant a partial stay of the
    Action under s. 7(5). Accordingly, the appeal must be dismissed.

[10]

The motion judge concluded, correctly in our view that, on the
    facts of this case, the appellants refusal to agree that they are parties to
    the arbitration agreement disentitled them to invoke the arbitration agreement
    under s. 7(1) of the Act. Shaws statement of claim alleges significant issues
    of fraud and illegal activity on the part of the appellants facilitated by the
    Agreement. The claim alleges that while all appellants were part of the
    impugned conduct, only a few entered into the Agreement. The appellants have
    filed no defence to the claim. In the circumstances, we agree with the motion
    judge that the appellants cannot just rely on the statement of claim. It is
    incumbent on them to indicate to the court that they are parties to and bound
    by the Agreement to invoke s. 7(1). To hold otherwise would enable them to take
    the position before an arbitrator that they are not parties to the Agreement
    which in our view would be entirely inappropriate.

[11]

We are mindful that on the hearing
    of the motion, the defendant Curt-Michael Pieckenhagen acknowledged to the
    court that he was attorning to the jurisdiction of the arbitrator.  We agree
    with the motion judge in his supplementary reasons that this attornment comes
    too late to affect the decision.

[12]

In his reasons for decision, the motion judge went on to state
    that in the event his analysis that s. 7(1) did not apply was incorrect then s.
    7(5) of the Act applied. We agree that where a dispute falls within s.7(1), s.
    7(5) of the Act is applicable.

[13]

In the Action, there are 23 defendants, including six
    corporations. The statement of claim alleges that eight individual defendants
    maintained Shaw accounts for the purpose of facilitating their scheme. The
    evidence before the motion judge more specifically established that there are
    nine Shaw residential subscriber accounts associated with the activity alleged
    to be carried on by the defendants. One is in the name of the defendant
    Curt-Michael Pieckenhagen; one in the name of the defendant Chris Brooks,
    Curt-Michaels brother-in-law; and one in the name of the defendant Kurt
    Pieckenhagen, Curt-Michaels father. The remaining six are under false names or
    aliases.

[14]

Accordingly, it is clear that while three of the defendants may
    be subject to the arbitration clause, the remaining 20 would not be. It is also
    clear that the alleged fraudulent and illegal activity involved all of the
    defendants.

[15]

Section 7(5) of the Act gives the court discretion to grant a
    partial stay in circumstances where it is reasonable to separate the matters in
    an action which fall within the scope of the arbitration agreement from those
    that are clearly outside it. See:
Brown v. Murphy
(2002), 59 O.R. (3d)
    404 (C.A.);
Radewych v. Brookfield Homes (Ontario) Ltd.
, [2007] O.J.
    No. 4012 (C.A.).

[16]

In exercising his discretion, the
    motion judge refused to grant a partial stay under s. 7(5) of the Act on the
    basis that it was not reasonable in the circumstances of the case. He noted
    that a partial stay would result in a multiplicity of proceedings, duplication
    of resources, inefficiency, increased costs and delay contrary to s. 138 of the
Courts of Justice Act
. We agree
    with this finding.

[17]

Given the issues in the Action and the numerous parties involved,
    it was within the motion judges discretion to conclude it did not make sense
    to permit the dispute to proceed to arbitration in respect of three defendants
    and allow the Action to continue against the other 20. He was entitled to
    conclude that the issues should be determined for all parties in one forum and
    that the proper forum in this case is the court.

[18]

Accordingly, the appeal is dismissed.

[19]

Costs to the respondent fixed in the amount of $30,000 inclusive
    of disbursements and HST.

J.C. MacPherson J.A.

H.S. LaForme J.A.

L.A.
    Pattillo J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION:
Simao v. Hankook
    Ilbo, 2012 ONCA 175

DATE: 20120321

DOCKET: C52851

Sharpe, Armstrong and Watt JJ.A.

BETWEEN

Yolanda Simao

Plaintiff (Appellant)

and

Hankook Ilbo & The Korea Times Limited and
    Soh Young Jeong

Defendants (Respondents)

James F. Diamond, for the appellant

Bruce G. McEachern, for the respondents

Heard: February 8, 2012

On appeal from the judgment of Justice Randall S. Echlin
    of the Superior Court of Justice, sitting with a jury, dated October 12, 2010.

Sharpe
    J.A.:

[1]

In this libel action, the jury found that the newspaper articles upon
    which the appellant sued did not defame the appellant. The appellant concedes
    that the trial judge properly instructed the jury on the issue. However, she
    asks us to overturn the jurys verdict as perverse and to enter judgment in her
    favour.

[2]

For the following reasons, I conclude that the appellant has not met the
    high threshold of demonstrating that the verdict was so plainly unreasonable
    and unjustthat no jury reviewing the evidence as a whole and acting judicially
    could have reached it:
McCannell v. McLean
, [1937] S.C.R. 341, at p.
    343.

[3]

Accordingly I would dismiss the appeal.

FACTS

[4]

The appellant and her husband are the principals of an immigration
    consulting firm, ProLegal Consulting Group. The respondent Hankook Ilbo &
    The Korea Times Limited operate a Korean-language newspaper, the Korea Times
    Daily, for which the respondent Soh Young Jeong is a reporter. The Korea Times claims
    a circulation of over 100,000 in the Canadian Korean community.

[5]

On February 17, 2007, Korea Times published the first of a series of articles
    written by Jeong, chronicling the plight of 24 South Korean truck drivers who
    claimed that a company, ULSC, and its principal, Geunsuk (Justin) Park, had
    induced them to come to Canada to work. According to the article, the workers
    paid ULSC substantial fees to arrange the work permits. The Korea Times
    reported that despite Parks representations and inducements, the workers never
    found employment in Canada. Simao was mentioned in these articles.

[6]

Simao, who does not speak Korean, was retained by Park. He asked her to
    help find a trucking firm that would fulfill the requirements of the Government
    of Canadas Foreign Worker Program. Simao contacted several trucking firms and
    eventually reached Bill Kalbhenn of Highland Trucking who expressed interest in
    hiring the Korean drivers. Simao submitted an application for a positive labour
    market opinion (LMO) to Human Resources Skills Development Canada (HRSDC)
    on behalf of Highland Transport. An LMO was required to enable the truck
    drivers to obtain the necessary work permits. The application prepared by Simao
    included 24 HRSDC employment contract forms signed by Kalbhenn on behalf of
    Highland. HRSDC provided Simao with the required LMO. Once Simao had obtained
    the LMO, her formal involvement ended and she was paid a fee of $60,000. Highland
    required the drivers to have English language proficiency, a commercial
    drivers licence, two years experience and a US FAST card. As of the date of
    the article, none of the truck drivers had been employed by Highland as the
    company considered their English language proficiency to be inadequate.

[7]

While four subsequent articles were published, it is common ground that
    this appeal turns on the February 17, 2007 article entitled Facing Prospects
    of becoming an Illegal Alien due to Broken Promise of Employment Because of
    its central importance to this appeal, I set out that article in its entirety.

Facing
    Prospects of becoming an Illegal Alien due to Broken Promise of Employment

Korean
    Truckers report an Immigration Consulting Firm

Consulting
    fee plus driving school tuition paid but employment is put off day by day

An Immigration Consulting Firm operated by Koreans was reported
    to the regulating body of the Immigration Consultants for getting a significant
    amount of fees but not fulfilling the promise of employment as a condition of
    paid consultation.

Mr. Geunsuk Park (a.k.a. Justin) has been operating a company
    named ULSC Immigration Inc. together with his sister in Seoul as a
    headquarter and a branch in Toronto. They received more than $13,000 in average
    from each applicant on the condition they would obtain a working visa and a
    job. In addition, they also received license procuring fees. The employment
    positions were truck driver, home caregiver and mechanic. The number of
    applicants is estimated to be approximately 60.

Mr. Jiho Kim (fictitious name), who was a truck driver in
    Korea, and tens of other victims who could not find jobs a few months after
    being issued the working visa and are about to become illegal, filed complaints
    about Mr. Park and his legal representative, Yolanda Simao, to the
    self-regulating body of immigration consultants, the Canadian Society of Immigration
    Consultants (CSIC).

Mr. Kim, who filed the complaints to the CSIC as the
    representative of the victims, said, It was not easy to complain to the police
    to obtain an investigation because the immigration status of all victims is
    insecure. After finding out that Simao, who signed the various contracts, is a
    member of the regulating body, we have spent a long period of time anguishing
    and eventually decided to file the complaints. As the situation develops we
    will report the case to the police as well.

After being told at the Employment Presentation given by ULSC
    held in Seoul that once employed as a truck driver in Toronto, his yearly
    income of $50,000 would be guaranteed and the benefit of permanent residency or
    better comes with it. Mr. Kim paid 7,800,000 won.  5 to 6 months later, Mr.
    Park advised Mr. Kim to come to Canada with his family. Mr. Kim arrived at
    Toronto in July last year together with his family members and obtained a
    working visa in Buffalo, U.S.A. in October last year.

Meanwhile, Mr. Kim obtained an Ontario Truck Drivers License
    (AZ) from A Driving School which was introduced to him by Mr. Park.  The
    tuition was $6,000 for 40 hours of training. It was quite a lot of money, but
    I and others were full of hope because we were told that we would be able to
    earn $18 an hour from the H trucking company in Toronto once we are licensed,
    said Mr. Kim.

Empty Employment Promise

However, there is still no prospect of any job even 4 months
    after they obtained the working visa. The representative of the above trucking
    company said in a telephone conversation with this newspaper on the 16
th
,
    I met with Korean students of the driving school several times and told them
    through Simao that I will hire them once they are qualified. But most of them have
    communication problems and were without a FAST Card (Free And Secure Trade
    Card) which is necessary to enter the U.S. freely and these made the employment
    situation difficult. I have never entered into the employment contract which
    they insist that they received. The signature alleged to be mine on the
    contract must have been faked.

Mr. Kim insisted, The contract was made without an interview,
    not to mention knowing the location of the company. Mr. Park promised to open a
    separate Korean department with a Korean interpreter in the trucking company
    since there were tons of prospective Korean drivers in the trucking company in
    order to create a working environment without worrying about the language.

To this, Mr. Geunsuk Park explained, We obtained the
    employment contract from the company for the applicants based only on
    documents, such as resumes and employment history certificates, because of the
    long distance. But after the working visa was issued, the employment promise
    could not be kept because their lack of communicating ability became an issue.
    He continued, The contracts were made by Simao on behalf of the company and
    the applicants. A 100% refund is warranted if the employment is not successful
    within one month. According to Mr. Park, there are 40 people who obtained the
    working visa already and 10 more are waiting for the visa. There are 10
    students enrolled in the driving school.

The promise of employment within one month has been given
    repeatedly for a few months. Someone even got a promissory note from Mr. Park,
    but it was useless. There are still many people with a Canada Dream in the
    processing stage in Korea. Further damages should be stopped, the victims
    insisted in strong voices.

The victims who range between mid-forties and early fifties in
    age say in one voice that they are unable to work, their children cannot enroll
    in Canadian schools, they have financial difficulties and some even have family
    problems. They further voiced that all they want is to work legally in this
    country through whatever route possible.

[8]

The Korea Times eventually published a correction piece two years
    later:

This is to clarify The Korea Times Daily articles that were
    published on February 17, 21, and 23, 2007, which focused on Korean truck
    drivers and their immigration issues.

The article stated that Ms. Yolanda Simao was the legal
    representative of Mr. Park, Geun Seok and ULSC. This was not correct. Although
    this was mentioned in a phone conversation with Mr. Park on February 16, 2007,
    Ms. Simao asserts that she was not retained or engaged by the truck drivers,
    and acted solely for ULSC.

Ms. Simao did not sign any employment contracts between the
    truck drivers and the truck company H, as incorrectly mentioned in the news
    articles.

The Canadian Society of Immigration Consultants (CSIC)
    concluded last March that she did owe some duties to the drivers, and did not
    provide complete service to them.

TRIAL AND JURY VERDICT

[9]

Simaos position at trial was that the article leaves a reader with the
    impression that she was instrumental in a scheme to take advantage of the
    vulnerable Korean truck drivers and that she was guilty of fraud or forgery.

[10]

Simao
    contended that Jeong had written the article in a mad rush to avoid being scooped
    by another paper and that she had failed to conduct an adequate investigation.
    Particular attention was given the quotation attributed to the representative
    of Highland, Bill Kalbhenn. Jeong had called Kalbhenn as he was catching a
    plane. He asked Jeong to wait until his return to Toronto so he could review
    the HRSDC documents that she claimed were Highland employment contracts.
    However, Jeong pressed on with the interview, and quoted Kalbhenn (as an
    unnamed representative of Highland) as saying I have never entered into the
    employment contract which they insist that they received. The signature alleged
    to be mine on the contract must have been faked. On cross-examination, Jeong
    admitted that these were not his exact words. A tape recording of the
    conversation showed that Kalbhenn denied signing employment contracts with the
    workers. Although he said that there must have been some funny work behind the
    scenes, and that somebodys added or changed or altered or something like
    that, he did not say that his signature had been faked.

[11]

Simao
    advanced a substantial claim for general, aggravated and punitive damages.
    Before this court, her counsel conceded that the respondents had succeeded in
    undermining the evidence and the expert opinion Simao submitted to support the
    claim that she lost income between $194,625 and $360,389.

[12]

The
    respondents position was that the focus of the article was on Park and ULSC as
    the culprits in a scheme that left the South Korean truck drivers stranded in
    Canada without employment. The respondents argued that although the article
    mentioned Simao, it did not directly accuse her of anything more than having
    been Parks legal advisor.

[13]

The
    respondents denied malice and raised the defences of fair comment and qualified
    privilege. They also argued that the damages claimed were excessive.

[14]

The trial
    judge ruled that, as a matter of law, the words of the article were capable of
    bearing the defamatory meaning alleged by Simao. The trial judge charged the
    jury with deciding whether reasonable men and women, reading each article as a
    whole, would understand the words to convey a meaning that discredits the
    plaintiff. Simao concedes that the trial judge properly charged the jury in
    this regard.

[15]

The trial
    judge gave the jury a succinct explanation of the parties positions on this
    issue.

[16]

Simaos position
    was summarized as follows:

The article left any reader with the impression that:

(a)   The
    plaintiff played an official role in inducing a group of vulnerable Koreans to
    leave their native Korea for the illusory promise of better employment
    opportunities in Canada;

(b)   The
    plaintiff allegedly represented all sides in the preparation and filing of all
    contracts between the Koreans and Highland; and

(c)   The
    plaintiff was responsible for preparing the forged employment records.

[17]

The respondents
    position was summarized in the following manner:

The defendants say it is not clear that the articles attacked
    the plaintiff. They say that the basic premise of the libel law is that the
    publication complained of must be of, and concerning, a plaintiff. They say
    that when a reader reads the publication one time, or at most two times, it
    might be very clear that it is the plaintiff who is being attacked. The
    defendants say that this is not so in these articles, and that there was no
    defamation.

[18]

The jury was
    asked to answer a series of questions. We do not have the verdict sheet given
    to the jury but the questions may be gleaned from the trial judges
    instructions:

1.   Are the
    articles complained of defamatory of the plaintiff?

2.   If yes,
    were the articles written and published by the defendant with malice?

3.   If there
    was no malice, is the defence of fair comment available to the defendant?

4.   If there
    was no malice, is the defence of qualified privilege available to the
    defendant?

5.   What amount
    of general damages, including loss of income if proven, should be awarded to
    the plaintiff?

6.   Should the
    plaintiff be awarded punitive and/or aggravated damages, and if so, in what
    amounts?

[19]

However,
    by agreement of the parties, the jury was instructed that if the answer to the
    first question was that the articles did not defame Simao, they should stop at
    that point without answering the remaining questions.

[20]

The jury
    found, in answer to the first question, that the articles complained of are not
    defamatory of the plaintiff. Following the instruction that had been given, the
    jury did not answer any of the remaining questions. The trial judge dismissed
    the action in accordance with the jurys verdict.

ISSUES

1.

Is the jurys
    verdict finding no defamation perverse?

2.

If the jurys
    verdict is perverse, what is the appropriate remedy?

ANALYSIS

1.  Is the jurys verdict finding no defamation
    perverse?

[21]

The
    standard of review for findings of fact made by a jury is well-established. In
Jones
    v. Niklaus
, 2008 ONCA 504, at para. 26, my colleague Armstrong J.A. stated:

Before addressing the above issues, it is necessary to consider
    the standard of review of findings of fact made by a jury. In
Deshane v.
    Deere & Co
.
(1993), 15
    O.R. (3d) 225

at 231 (C.A.), Lacourcière J.A.
    (dissenting on other grounds) said:

The principles governing appellate review of the verdict of
    a jury have been laid down by the Supreme Court of Canada in
McLean v.
    McCannell
,
[1937]
    S.C.R. 341

at p. 343,
[1937] 2
    D.L.R. 639
, so that the verdict of a jury will not be set aside as
    against the weight of evidence unless it is so plainly unreasonable and unjust
    as to satisfy the Court that no jury reviewing the evidence as a whole and
    acting judicially could have reached it. The principle has been re-affirmed in
Vancouver-Fraser Park District v. Olmstead
,
[1975] 2
    S.C.R. 831
at p. 839,
51 D.L.R.
    (3d) 416
, where de Grandpré J., delivering the judgment of the
    court, stated:

All of the relevant cases make it abundantly clear
    that jury verdicts must be treated with considerable respect and must be
    accorded great weight. This does not mean however that they should be regarded
    with awe.

It was in that case also that the court, at p. 836, rejected
    the suggestion that a verdict should be perverse, implying moral turpitude,
    before it could be set aside. Instead, the court adopted a test that examines
    whether the evidence so preponderates against the verdict as to show that it
    was unreasonable and unjust. There is a further principle enunciated by Laskin
    C.J.C. delivering the majority judgment in
Cameron v. Excelsior Life
    Insurance Co.
,
[1981] 1 S.C.R. 138
at p. 142,
119 D.L.R. (3d) 257
, and it is that
    jurys findings are entitled to rational appreciation and to be regarded in as
    favourable a light as the evidence supporting it.

See also Barker (
c.o.b. Mike Barber Auto Sales) v. Zurich
    Insurance Co.

(2001),
    140 O.A.C. 358
(C.A.) at para. 26; and
Plester v. Wawanesa

Mutual
    Insurance Co.

(2006),
    269 D.L.R. (4th) 624
(Ont. C.A.), leave to appeal to S.C.C. refused,
[2006]
    S.C.C.A. No. 315
.

[22]

The
    reluctance to interfere with jury verdicts is especially pronounced in
    defamation actions, particularly on the question of whether or not the words
    complained of bear defamatory meaning: see Raymond E. Brown,
Brown On
    Defamation
, 2d. ed., looseleaf (Toronto: Carswell, 2010), at para. 24.2,
    quoting Scrutton L.J. in
Broome v. Agar
(1928), 138 L.T. 698 (C.A.),
    at p. 700: Libel or no libel is peculiarly a question for the jury; only in
    the most extreme cases should the judge allow his view to override that of the
    constitutional tribunal. See also
Wills v. Carman
(1889), 17 O.R. 223
    (C.A.), at p. 225: It is for the jury to say whether alleged defamatory matter
    published is a libel or not, and the widest latitude is given to them in
    dealing with it.

[23]

In my
    view, Simao has failed to surmount this high hurdle.

[24]

There can
    be little doubt that the main target of the article and the man portrayed as
    being the culprit was Park. Simao is mentioned four times in the article.

[25]

First, the
    article states that a truck driver filed a complaint to the Canadian Society of
    Immigration Consultants about Mr. Park and his legal representative, Yolanda
    Simao. In my view, it was open to the jury to conclude that the ordinary
    reader would not attribute Parks moral culpability in the scheme to Simao
    simply because she was his legal representative. Simao concedes that the
    statement that a complaint has been filed is not defamatory.

[26]

Second,
    the article states that it was Simao who signed the various contracts to
    obtain the required immigration status. Third, the article purports to quote a Highland
    representative (apparently Bill Kalbhenn, though he is not named in the
    article) stating that he told the truck drivers through Simao that he would
    hire them once they were qualified. Fourth, a quotation attributed to Park
    states that [t]he contracts were made by Simao on behalf of the [trucking]
    company and the applicants.

[27]

At the end
    of the day the real question is whether the only reading of the article open to
    the jury is one that accuses Simao of fraud or forgery. Such a reading was
    certainly possible: the article states that she made and signed the
    contracts and that the representative of the trucking company denied signing
    the contracts and claimed that his signature must have been faked.

[28]

However, in
    my view it was open to the jury to conclude that the ordinary reader would not
    read the article in that way. The general thrust of the article is that Park took
    advantage of vulnerable truck drivers and that the trucking company failed to
    live up to its legal obligations. In this context, the jury was entitled to
    find that the ordinary reader would read the claim of faked signatures as no
    more than the trucking companys hollow excuse for reneging on its legal obligations.
    It was open to the jury to conclude that an ordinary reader would interpret the
    words of the article as meaning that there were no faked or forged signatures,
    but rather unscrupulous businessmen trying to evade their legal responsibilities
    at the expense of vulnerable immigrants.

[29]

A lawyer,
    trained to read documents with forensic precision, might well read the article
    differently. But that is not the test. The question for the jury was to
    determine whether
reasonable men and women of ordinary understanding

    not lawyers  reading the article articles as a whole, would take the words to
    convey a meaning that discredits the plaintiff.

[30]

The trial
    judge left the issue of defamatory meaning squarely with the jury. His
    instruction fairly explained the parties positions. The respondents put before
    the jury a possible interpretation of the article that did not defame Simao.
    Her claim was forcefully advanced before the jury but, in the end, the jury
    simply did not accept that ordinary people would understand the article to
    discredit her.

[31]

In
    accordance with the established jurisprudence to which I have referred, it is
    my view that on this record, this court must respect and uphold the jurys
    finding.

2.       If the jurys verdict is perverse, what is the
    appropriate remedy?

[32]

As I would
    not interfere with the jurys verdict, it is unnecessary for me to consider the
    remedy to which the appellant would be entitled.

[33]

I would
    observe, however, that it is difficult to imagine how we could give the
    appellant the primary remedy she seeks, namely judgment on her claim. In this
    regard, it is regrettable that the jury was instructed that it was not
    necessary to answer the remaining questions. As a result, we do not have the
    jurys complete assessment of the case. We do know, however, that the jury had
    the advantage of hearing and assessing both Simao and Jeong in the witness
    stand. The jury plainly was unimpressed by the merit of Simaos claim. Simao
    was not the target of the article upon which she sued yet she advanced a very
    large damage claim. The jury saw the evidence in support of the most tangible
    element of that claim  loss of income  crumble.

[34]

On this
    record, the best the appellant could hope for would be a new trial, and, as I
    would not interfere with the jurys answer to the first question, that remedy
    is precluded.

DISPOSITION

[35]

For these
    reasons I would dismiss the appeal with costs to the respondents fixed in the
    agreed amount of $7,600 inclusive of disbursements and HST.

Robert J. Sharpe J.A.

I agree R.P. Armstrong
    J.A.

I agree David Watt
    J.A.

Released: March 21, 2012


WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An order restricting publication in this proceeding
    under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1)
    or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.5 (1)
Unless an order is made under section
    486.4, on application of the prosecutor, a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is satisfied that the order is
    necessary for the proper administration of justice.

(2)

On application of a justice
    system participant who is involved in proceedings in respect of an offence
    referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a
    judge or justice may make an order directing that any information that could
    identify the justice system participant shall not be published in any document
    or broadcast or transmitted in any way if the judge or justice is satisfied
    that the order is necessary for the proper administration of justice.

(3)

An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice if it is not the purpose of the disclosure
    to make the information known in the community.

(4)

An applicant for an order
    shall

(
a
) apply in writing to the presiding judge or justice or, if
      the judge or justice has not been determined, to a judge of a superior court of
      criminal jurisdiction in the judicial district where the proceedings will take
      place; and

(
b
) provide notice of the
    application to the prosecutor, the accused and any other person affected by the
    order that the judge or justice specifies.

(5)

An applicant for an order
    shall set out the grounds on which the applicant relies to establish that the
    order is necessary for the proper administration of justice.

(6)

The judge or justice may hold
    a hearing to determine whether an order should be made, and the hearing may be
    in private.

(7)

In determining whether to make
    an order, the judge or justice shall consider

(
a
) the right to a fair and public
      hearing;

(
b
) whether there is a real and substantial risk that the
      victim, witness or justice system participant would suffer significant harm if
      their identity were disclosed;

(
c
) whether the victim, witness or justice system participant
      needs the order for their security or to protect them from intimidation or
      retaliation;

(
d
) societys interest in encouraging the reporting of offences
      and the participation of victims, witnesses and justice system participants in
      the criminal justice process;

(
e
) whether effective alternatives are available to protect the
      identity of the victim, witness or justice system participant;

(
f
) the salutary and deleterious
      effects of the proposed order;

(
g
) the impact of the proposed order on the freedom of
      expression of those affected by it; and

(
h
) any other factor that the judge or
      justice considers relevant.

(8)

An order may be subject to any
    conditions that the judge or justice thinks fit.

(9)

Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(
a
) the contents of an application;

(
b
) any evidence taken, information given or submissions made
      at a hearing under subsection (6); or

(
c
) any other information that could identify the person
      to whom the application relates as a victim, witness or justice system
      participant in the proceedings.  2005, c. 32, s. 15.

486.6 (1)
Every person who fails to comply
    with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 205, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. L.S., 2012 ONCA 203

DATE: 20120330

DOCKET: C54108

Rosenberg, Armstrong and Juriansz JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

L.S., L. V., R. V

Appellants

Peter R. Boushy, for the appellants

Andreea Baiasu, for the respondent

Heard and endorsed: March 23, 2012:

On appeal from the decision of Justice Dale Parayeski, of
    the Superior Court of Justice, dated July 29, 2011, dismissing the summary
    conviction appeal against sentence imposed by Justice Bernd E. Zabel of the
    Ontario Court of Justice, dated February 10, 2011.

APPEAL BOOK ENDORSEMENT

[1]

This application for leave to appeal was largely argued on the
    basis that
R. v. Peterson
(2005),
    201 C.C.C. (3d) 220 (Ont. C.A.),
sets the range of 4 to 8 months
    for failing to provide the necessaries for first offenders. We do not agree
    that
Peterson
does set the range for this type of offence.

[2]

We see no error of law and accordingly leave to appeal is
    refused.


COURT OF APPEAL FOR ONTARIO

CITATION: Streamline Foods
    Ltd. v. Jantz Canada Corporation, 2012 ONCA 174

DATE: 20120320

DOCKET: C54450

Simmons, Cronk and Watt JJ.A.

BETWEEN

Streamline Foods Ltd.

Plaintiff (Appellant)

and

Jantz Canada Corporation

Defendant (Respondent)

James M. Wortzman and Karey
    Anne Dhirani, for the appellants Streamline Foods Ltd. and Streamline Foods,
    Inc.

Scott A. Rosen and Bryan Fromstein, for the respondent

Heard and released orally: March 2, 2012

On appeal from the order of Justice Thea Herman of the
    Superior Court of Justice (sitting in the Divisional Court), dated March 15,
    2011, dismissing the appellants appeal from the decision of Master Robert A.
    Muir, dated November 19, 2010.

ENDORSEMENT

[1]

Following the expiry of the relevant limitation
    period, Streamline Foods Ltd. moved to amend its statement of claim by adding
    its parent corporation as a plaintiff and by adding assertions that it was the
    parent corporation that was entitled to some of the damages claimed. Streamline
    relied on misnomer as the basis for its proposed amendments and conceded that
    the amendments were otherwise barred by the operation of the
Limitations
    Act, 2002
.

[2]

Master Muir dismissed the motion, holding
    that "this is not a case of misnomer but rather an attempt to add an
    additional plaintiff."

[3]

Herman J. dismissed the appellants' appeal
    from the Master's decision.

[4]

On appeal to this court, the appellants
    argue that the courts below erred in holding that this was not a case of
    misnomer and further erred in failing to find that s. 21(1) of the
Limitations
    Act, 2002

does not apply to plaintiffs and that the doctrine of
    special circumstances continues to permit the addition of plaintiffs based on
    special circumstances.

[5]

We agree with the courts below that this
    is not a case of misnomer. The appellants sought to add the parent corporation
    of the original plaintiff as a party to the action because it was the parent
    corporation who incurred certain losses, not the original plaintiff. However,
    in order to advance a claim on behalf of the parent corporation, it was
    necessary to add the parent corporation as an additional party and also to
    plead additional material facts to support the parent corporations claims.

[6]

This, in our view, is not misnomer or misdescription.
    The appellants were not seeking to correct the name of a party; rather, they
    were seeking to add a party and to pursue that partys claims.

[7]

On these facts, the special circumstances
    doctrine, even if it survived the enactment of the
Limitations Act,
    2002
, would not assist the appellants.

[8]

In any event, in our
    view,
Joseph v. Paramount Canada's Wonderland
2008 ONCA 469 stands for the proposition that the special circumstances
    doctrine did not survive the enactment of the
Limitations Act, 2002
, as
    the appellants seek to argue. A challenge to that determination would require
    consideration by a five-person panel of this court.

[9]

Costs of the appeal and the leave application
    are to the respondent on a partial indemnity basis, fixed in the amount of
    $10,000, inclusive of disbursements and applicable taxes.

Signed:        Janet
    Simmons J.A.

E.
    A. Cronk J.A.

David
    Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Szpakowsky v. Kramar, 2012
    ONCA 136

DATE: 20120301

DOCKET: C53827

Weiler, Sharpe and Blair JJ.A.

BETWEEN

Lidia Yvonne Szpakowsky

Appellant (Plaintiff)

and

Robert Michael Kramar, Lee Edward Fingold, Evlar
    Investments Ltd., Jorum Gold, Grant Rayner Lawrence Ben Eliezer, George B.
    Callahan, Jerry Herzkopf

Respondents (Defendants)

Jeffrey Langevin, for the appellant

H.J. Doan, for the respondent

Heard: January 31, 2012

On appeal from the order of Justice Harrison.S. Arrell of the
    Superior Court of Justice, dated April 29, 2011.

COST ENDORSEMENT

[1]

In our endorsement of February 6, 2012, ordering that Ms. Szpakowsky pay
    the sum of $15,000 into court as security for costs and directing that the
    pending appeal is stayed pending compliance with that order, we did not deal
    with the issue of costs.  Mr. Doan has written asking that we award costs to
    Mr. Gold  for the proceedings before us.  We have had no communication from
    Mr. Langevin on this issue.

[2]

While Mr. Doan makes an arguable case for costs in favour of his client,
    including reference to a previous offer to settle, we are satisfied in all the
    circumstances as outlined in our earlier endorsement, that no costs should be
    ordered with respect to the hearing before us.  We therefore make no order as
    to costs.

Karen M. Weiler J.A.

Robert J. Sharpe J.A.

R.A. Blair J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
TWI
    Foods Inc. v. Just Energy Corp., 2012 ONCA 150

DATE: 20120309

DOCKET: C53635

Laskin, Cronk and Rouleau JJ.A.

BETWEEN

TWI Foods Inc.

Plaintiff (Respondent/Appellant by way of cross-appeal)

and

Just Energy Corp. and Just Energy Ontario L.P.

Defendants (Appellants/Respondents by way of cross-appeal)

Adrian C. Lang and Sarah Clarke, for the appellants/respondents
    by way of cross-appeal

Ronald Flom, for the respondent/appellant by way of
    cross-appeal

Heard and released orally: March 7, 2012

On appeal and cross-appeal from the judgment of Justice James
    M. Spence of the Superior Court of Justice, dated March 25, 2011.

ENDORSEMENT

[1]

Just Energy argued four points:

(1)

the trial judge erred
        in failing to hold that TWIs claim was barred by the two-year limitation
        period;

(2)

the trial judge erred
        in finding that TWI had no obligation to mitigate;

(3)

the trial judge erred
        in finding that the gas contract had not been validly renewed; and

(4)

the trial judge erred
        in principle in his costs award.

[2]

TWI cross-appealed on the ground that the limitation period should not
    run at all because of fraudulent concealment.

[3]

In Just Energys appeal, we called on TWI only on the issues of
    mitigation and costs.  We did not call on Just Energy on the cross-appeal.

(1)

The Limitation Period

[4]

Although the trial judge found that TWI knew it had a claim by December
    2007, he held that the limitation period for each bill charged TWI after 2007
    started to run at the time each bill was delivered.  That holding was premised
    on his earlier finding that the parties had not validly entered into a renewal
    contract.  In our view, the trial judge did not err in his treatment of the
    running of the limitation period.

(2)

Mitigation

[5]

We are satisfied that it was reasonable for TWI not to have mitigated
    its loss in the light of the following considerations:

(1)

Just Energy consistently
        represented that it had validly renewed the contract;

(2)

TWI repeatedly asked for proof
        that the contract had been validly renewed and yet was never provided with that
        proof; and

(3) Just
        Energy threatened to impose a substantial cancellation fee if TWI terminated
        the parties arrangement for the delivery of gas.

(3)

Validity
    of the Renewal Contract

[6]

There was evidence in the record to support the trial judges finding that
    the parties did not enter into a valid renewal contract.  Accordingly, we defer
    to that finding.

(4)

Costs

[7]

We see no basis for an award of substantial indemnity costs of the
    trial.  Accordingly, we grant leave to appeal costs and reduce the amount
    awarded to reflect partial indemnity costs.  In our opinion, a fair figure is
    $58,000, plus disbursements and HST.

(5)

Fraudulent
    Concealment

[8]

This issue was not raised at trial.  Largely for the reasons set out in
    Just Energys factum on the cross-appeal, we decline to entertain this issue on
    appeal.

[9]

Subject to the adjustment of the costs award at trial, the appeal is
    dismissed and the cross-appeal is also dismissed.  Given the divided success in
    this court, we order no costs of either the appeal or the cross-appeal.

John Laskin J.A.

E.A. Cronk J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Todorovic v. Hamilton
    (City), 2012 ONCA 198

DATE: 20120326

DOCKET: C54412, C54413, C54470 and C54624

MacPherson, LaForme JJ.A. and Pattillo J. (
ad
    hoc
)

BETWEEN

Ranko Todorovic

Plaintiff (Appellant)

and

City of Hamilton

Defendant (Respondent)

AND BETWEEN

Ranko Todorovic

Plaintiff (Appellant)

and

Her Majesty the Queen in right of Ontario

Defendant (Respondent)

Ranko Todorovic, appearing by teleconference

Justyna Hidalgo, for the City of Hamilton

Edmund Huang
    and Kristina Gill, for Her Majesty the Queen in right of Ontario

Heard and released orally: March 22, 2012

On appeal from the orders of Justice Dale Parayeski,
    dated August 25, 2011; from the order of Justice Donald J. Gordon dated September
    14, 2011; and from the order of Justice Dale Parayeski dated September 26,
    2011, of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant, Ranko Todorovic, appeals four orders of superior
    court judges made between August 25 and September 26, 2011, namely:

(1)

the order of Parayeski J. dated
    August 25, 2011 striking out the appellants Statement of Claim in an action
    against the City of Hamilton,

(2)

the order of Parayeski J. dated
    August 25, 2011 striking out the appellants Statement of Claim in an action
    against the City of Hamilton, with the exception of the appellants soccer
    injury claim concerning which the appellant was given permission to file an
    amended Statement of Claim within 30 days,

(3)

the order of Gordon J. dated
    September 14, 2011 dismissing the appellants action against the Government of
    Ontario, and

(4)

the order of Parayeski J. dated
    September 26, 2011 dismissing the appellants action against the Government of
    Ontario.

[2]

In the two actions against the City of Hamilton, the motion
    judge, in a single judgment applying to both actions, struck out all of the two
    Statements of Claim except for the portion in one Statement of Claim dealing
    with an alleged soccer injury sustained by the appellant in a park owned and
    maintained by the City.  On all the claims which he struck, we agree with the
    reasoning and conclusions of the motion judge.

[3]

The order of Gordon J. dismissed the appellants action against
    the Government of Ontario for disclosing no reasonable cause of action.  The
    appellants action was based on allegations that the Crown failed to fund or
    establish additional employment assistance programs that would be satisfactory
    to the appellant and that the Crown failed to ensure a competitive job market
    in Ontario to a standard acceptable to the appellant so that he could obtain a
    job commensurate with his training and experience.

[4]

We agree with Gordon J.s order.

[5]

In the second action against the Government of Ontario, the
    appellant sought orders that the provincial legislature enact laws to address
    alleged abuses of power by local Hamilton MPPs and to establish a more
    democratic Ontario.  In our view, the motion judge was correct to conclude that
    these were matters outside the purview of the courts.

[6]

The four appeals are dismissed.  The respondents City of Hamilton
    and the Crown are entitled to their costs of the appeals fixed at $1000 and
    $300 respectively, inclusive of disbursements and HST.

J.C. MacPherson J.A.

H.S. LaForme J.A.

L.A.
    Pattillo J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION:
Thompsons
    Limited v. 617987 Ontario Inc., 2012 ONCA 178

DATE: 20120321

DOCKET: C52504

Rosenberg, Cronk and Watt JJ.A.

BETWEEN

Thompsons Limited

Plaintiff

(Defendant by
    Counterclaim)

(Respondent)

and

617987 Ontario Inc.

Defendant

(Plaintiff by
    Counterclaim)

(Appellant)

Raymond G. Colautti, for the appellant

John M. Skinner, Q.C., for the respondent

Heard: December 6, 2011

On appeal from the judgment of Justice Kelly Anne Gorman,
    of the Superior Court of Justice, dated September 16, 2010.

Cronk
    J.A.:

I.        Background

[1]

617987 Ontario Inc. carries on a farming and crop-spraying business
    under the trade name Triple P Farms (Triple P) near Chatham, Ontario.  Triple
    P is owned and operated by three brothers: James, Jerry and Dario Prelaz.
    Thompsons Limited (Thompsons) runs a grain elevator and other agriculture-related
    enterprises in various locations throughout southwestern Ontario.

[2]

For more than two decades, Triple P and Thompsons enjoyed a mutually
    beneficial business relationship.  Triple P purchased farming inputs (items
    such as fertilizer, seeds and pesticides required for its farming operations)
    from Thompsons.  In turn, Thompsons contracted with Triple P from time to time
    to buy various of Triple Ps future grain crops for resale by Thompsons to
    third parties.  For many years, Thompsons also hired Triple P to provide custom
    pesticide spraying to some of Thompsons farming customers in the spring of
    each year.

[3]

At the beginning of January 2007, the parties long-standing
    relationship took a turn for the worse.  In May 2006, the parties had entered
    into two soybean contracts (the Soybean Contracts) under which Triple P agreed
    to grow 203 acres of two varieties of soybeans  Renwick and Respond
    soybeans  for Thompsons.  Under the terms of the Soybean Contracts, Thompsons
    agreed to pay Triple P a seed premium of $1.35 per bushel if the soybeans met
    stipulated quality standards.

[4]

In December 2006, after testing the soybeans, Thompsons concluded that
    the Renwick, but not the Respond, soybeans failed to meet the contracted
    quality standards required for payment of the seed premium.  As a result, in
    early January 2007, it informed Triple P that it would not pay the seed premium
    on the Renwick soybeans.  It was prepared to do so, however, in respect of the
    Respond soybeans.

[5]

Triple P disagreed with Thompsons assessment of the quality of the Renwick
    soybeans.  It raised various objections to the testing relied on by Thompsons
    and sought payment of the seed premium on both the Renwick and the Respond soybeans.
    Angry and heated remarks were exchanged between one of the Prelaz brothers and
    a Thompsons employee.  A meeting held at the end of January 2007 between the
    parties, attended by some of Thompsons senior staff, failed to resolve the
    matter or alleviate the hard feelings that had developed on the part of the
    Prelaz brothers.

[6]

Unfortunately, the dispute widened in February 2007 when Thompsons
    informed Triple P that its pesticide spraying contract for the 2007 crop year
    (the 2007 Spraying Contract) would not be awarded to Triple P.  Triple P was of
    the view that a Thompsons representative had orally agreed with, or
    represented to, Triple P in late December 2006 that it would be business as
    usual with respect to Thompsons 2007 spraying work.

[7]

Apart from the Soybean and the 2007 Spraying Contracts, the parties had
    also entered into a series of nine written contracts whereby Triple P agreed to
    grow corn and wheat for Thompsons, to be delivered in 2007 or 2008, for resale
    by Thompsons to its customers (the Futures Contracts).  When the disputes
    concerning the Soybean and the 2007 Spraying Contracts erupted, Triple P
    threatened that it would not deliver the agreed-upon crops to Thompsons under
    the outstanding Futures Contracts.  In early March 2007, one of the Prelaz
    brothers confirmed this position to Thompsons in a discussion with Bill Foran,
    a Thompsons local branch manager with whom Triple P had dealt for many years.
    In the event, Triple P did not deliver the crops contracted for under the
    Futures Contracts.

[8]

Litigation soon followed.  Thompsons sued Triple P in two separate
    actions for damages arising from Triple Ps breaches of the Futures Contracts.
    Triple P defended the actions and also counterclaimed for damages that it
    claimed to have suffered as a result of Thompsons alleged breaches of the
    Soybean and the 2007 Spraying Contracts.

[9]

The actions were consolidated and tried together in January 2010.  The
    trial judge concluded that: (1) Thompsons had established its claims in respect
    of the Futures Contracts; (2) Thompsons was not obliged to pay the claimed seed
    premiums under the Soybean Contracts because the Renwick soybeans fell below
    grade and Triple P had sold the Respond soybeans to a third party; and (3) no
    binding 2007 Spraying Contract had been entered into by the parties.

[10]

Accordingly,
    by judgment dated September 16, 2010, the trial judge awarded Thompsons damages
    in the amount of $108,046.39, inclusive of prejudgment interest, on account of
    Triple Ps breaches of the Futures Contracts, together with costs in the sum of
    $60,000. She dismissed Triple Ps counterclaim.

[11]

Triple P
    appeals.  For the reasons that follow, I would dismiss the appeal.

II.       Facts

[12]

The trial
    judge thoroughly reviewed the evidence at trial in her reasons.  It is
    unnecessary to repeat that review here.  I will refer to the relevant evidence,
    and the pertinent facts as found by the trial judge, as needed in the course of
    my discussion of the grounds of appeal.

III.      Issues

[13]

I would
    frame the issues advanced on appeal by Triple P as follows:

(1)

Did the trial judge err by
    failing to address essential elements of Triple Ps defence to Thompsons
    claims on the Futures Contracts?

(2)

Did the trial judge err by
    failing to address Thompsons duty to mitigate its damages under the Futures
    Contracts and by failing to reduce the damages awarded to Thompsons
    accordingly?

(3)

Did the trial judge err in
    her assessment of the merits of Triple Ps counterclaim: (a) by failing to find
    that Thompsons breached the Soybean and 2007 Spraying Contracts; and (b) in the
    alternative, by failing to address Triple Ps claim that Thompsons negligently
    misrepresented that the 2007 Spraying Contract would be awarded to Triple P?

IV.     Analysis

(1)

Triple Ps Defence to Thompsons Claims on the Futures Contracts

[14]

Triple P
    advances three related submissions in support of its claim that the trial judge
    erred by failing to address essential elements of its defence to Thompsons
    claims on the Futures Contracts.

[15]

First, Triple
    P argues that the parties engaged in a single overall course of dealing, over
    many years, manifested by numerous related and interconnected contracts to
    which a general requirement of good faith dealing applied.  As a result, Triple
    P says, the breach by one party of one of the component contracts entered
    into as part of the parties overall business arrangement precluded the
    breaching party from relying on or seeking redress as against the non-breaching
    party under the other component contracts.  Triple P contends that since Thompsons
    breached the Soybean and 2007 Spraying Contracts, the Futures Contracts were
    discharged and Thompsons was estopped from seeking relief in respect of
    Triple Ps non-performance of the Futures Contracts.

[16]

Triple P next
    submits that, in early March 2007, the parties mutually agreed to terminate all
    their business dealings and go their separate ways (the Termination Agreement).
    In essence, Triple P asserts that Thompsons orally: agreed to sever all
    dealings between the parties; waived its right to insist on performance of or
    otherwise rely on the Futures Contracts; and released Triple P from its
    obligations to perform the Futures Contracts.

[17]

Finally, Triple
    P maintains that the trial judge failed to address and make requisite factual
    findings concerning this defence theory.  In effect, Triple P says that the
    trial judge failed to come to grips with Triple Ps defence to Thompsons
    claims on the Futures Contracts.

[18]

There are
    several difficulties with this argument.  I will first address Triple Ps overall
    business arrangement theory.

[19]

It is
    undisputed that the parties business relationship extended over many years.
    Thompsons argues, however, that the parties dealings involved numerous
    discrete contracts, each of which stood on its own.  As a result, it says, the
    trial judge was required to consider Thompsons claims on the Futures Contracts
    on a stand-alone basis.

[20]

As I read
    her reasons, the trial judge accepted this characterization of the essential
    nature of the parties relationship. In my view, on the record in this case, it
    was open to her to do so.

[21]

The trial
    judge was mindful of the lengthy duration of the parties dealings and of the
    fact that they had entered into many contracts over the years, including the
    contracts at issue. She considered the evidence relating to the parties
    competing claims in respect of each of the disputed contracts and evaluated the
    merits of the claims advanced based on that evidence.

[22]

I see no
    error in this approach.  On the contrary, in my opinion, it was both justified
    and required by the pleadings and by the evidence concerning the contracts at issue.

[23]

In its
    Statement of Defence and Counterclaim, Triple P alleged that Thompsons conduct
    in relation to the Soybean and 2007 Spraying Contracts amounted to a repudiation
    and a fundamental breach of the contractual relationship between the parties,
    as a result of which Triple P advised Thompsons in March of 2007 that it would
    not be delivering on the Futures Contracts.  Triple P further alleged that,
    At that time [Thompsons] accepted the termination of the contractual
    relationship between the parties.

[24]

However,
    nowhere in its pleading does Triple P assert, as it now claims, that the
    relationship between the parties was governed by an overall business arrangement
    consisting of interdependent constituent contracts. Instead, while adverting to
    the lengthy ongoing business relationship between the parties, Triple Ps
    pleading specifically and separately addresses the Soybean, 2007 Spraying and
    Futures Contracts.  Thompsons defended Triple Ps counterclaim on the same
    basis.

[25]

Nor is
    there any suggestion in Triple Ps pleading, as Triple P also now claims in its
    factum, that Thompsons breached an overriding duty of good faith performance
    of contractual duties that imposed an obligation on Thompsons to refrain from
    breaching one set of contractual responsibilities while at the same time trying
    to enforce another.

[26]

Further,
    in its pleading, Triple P claims no damages or other relief on the basis of an
    alleged repudiation and breach by Thompsons of an umbrella business arrangement
    of which the disputed contracts formed but a part.

[27]

Triple Ps
    overall business arrangement theory also lacks support in the language of the
    disputed contracts themselves. The thrust of this theory is that the contracts in
    issue were interdependent  the breach of one contract materially affected the
    rights and obligations of the parties in respect of all the remaining
    contracts.

[28]

But there
    is nothing in the language of the Soybean or Futures Contracts, or in the
    evidence adduced at trial regarding the 2007 Spraying Contract, that indicates
    such interconnection among the contracts. There was no evidence at trial that
    any of these contracts was agreed by the parties to be related or subject to any
    of the other disputed contracts or, indeed, to any other contract at all.

[29]

Finally,
    and importantly, Triple Ps overall business arrangement theory rests on the
    contention that Thompsons breached the Soybean or 2007 Spraying Contracts. The
    trial judge rejected this contention. As I will discuss later in these reasons,
    it is my view that, on the evidentiary record before her, she was correct to do
    so.

[30]

I turn now
    to consideration of the alleged Termination Agreement.

[31]

In
    contrast to the overall business arrangement posited by Triple P, Triple P did
    plead the Termination Agreement.  As I have mentioned, in its Statement of Defence
    and Counterclaim, Triple P alleged that when Thompsons was informed in March
    2007 of Triple Ps decision not to deliver on the Futures Contracts, Thompsons
    accepted the termination of the contractual relationship.

[32]

The trial
    judge was alert to this allegation. She noted in her reasons that Triple P
    claims it advised [Thompsons] of its intention to terminate the [Futures
    Contracts]. Later, when describing Triple Ps position at trial, she stated:

When [Thompsons] refused to pay the seed premium, [Triple P]
    sought to terminate its agreements and relationship with [Thompsons] and
    subsequently did not deliver the contracted commodities. [Triple P] maintain[s]
    that the parties agreed to sever their relationship, and never believed that
    [Thompsons] intended to hold them to the delivery of the relevant commodities.

[33]

The trial
    judge also referred to the provisions of the Futures Contracts, including a term
    thereof that required the written consent of both parties to the cancellation
    of the Futures Contracts. She also alluded to Bill Forans evidence, on behalf
    of Thompsons, that he was informed on March 1, 2007 by Jerry and Dario Prelaz
    that they were all done dealing with us and that they probably wouldnt be
    doing any future business with Thompsons.

[34]

In these
    circumstances, it is simply incorrect to say that the trial judge failed to
    take account of Triple Ps claim of the existence of the Termination Agreement.
    Triple Ps real complaint is that the trial judge failed to find that the
    parties in fact agreed to sever all their business dealings.  In this regard,
    the trial judge accepted that Triple P had sought to terminate the Futures Contracts
    and all other dealings between the parties at the beginning of March 2007 and,
    further, that it had informed Thompsons of this intention.  However, it is
    implicit in her reasons that she rejected the suggestion that Thompsons agreed
    to this course of action, or that it otherwise accepted Triple Ps repudiation
    of its obligations under the Future Contracts.

[35]

There was
    evidence at trial supporting the rejection of the existence of the alleged
    Termination Agreement.  Triple P claimed that the Termination Agreement was
    entered into in early March 2007 during two telephone discussions between Jerry
    Prelaz of Triple P and Wes Thompson, President of Thompsons.  I agree with
    Thompsons submission that nothing in the words attributed by Jerry Prelaz to Wes
    Thompson constituted an agreement by Mr. Thompson that the parties would simply
    walk away from all their existing obligations or a release by him of Triple Ps
    obligations under the Futures Contracts.

[36]

At trial,
    when describing his March 2007 conversations with Wes Thompson, Jerry Prelaz
    testified that they discussed the Soybean and 2007 Spraying Contracts.
    Although Mr. Prelaz claimed he understood from Mr. Thompsons remarks that Mr.
    Thompson was suggesting that Triple P might as well do business somewhere else,
    he also agreed that Mr. Thompson
did not
mention the Futures Contracts
    or whether or not he was looking for [Triple P] to fulfill those.  Nor did
    Mr. Prelaz suggest that he had raised the matter of the Futures Contracts, or
    the termination of all the parties contractual arrangements, with Mr.
    Thompson.  His trial evidence on this matter was consistent with his testimony
    on discovery, which was read-in at trial during his cross-examination,
    regarding the nature of his discussions with Mr. Thompson.

[37]

Thus, based
    on Jerry Prelazs own evidence, Wes Thompson did not discuss, let alone
    expressly agree to terminate, the Futures Contracts during his conversations
    with Mr. Prelaz.  While Mr. Prelaz may have assumed that this was the result of
    his discussions with Mr. Thompson, it was certainly open to the trial judge to
    conclude, as she implicitly did, that Wes Thompson had not committed Thompsons
    to a Termination Agreement of the type posited by Triple P.

[38]

Finally, I
    underscore that the Futures Contracts expressly provide for cancellation in
    writing.  They state, in capital letters: CANCELLATION OF ALL OR ANY PART OF
    THIS CONTRACT REQUIRES THE WRITTEN CONSENT OF BOTH PARTIES. Written consent to
    the cancellation of the Futures Contracts was never provided by either party.

[39]

The Futures
    Contracts also provide that the waiver by Thompsons of any breach by Triple P,
    shall not be construed as a waiver of any future such breach
nor affect or
    limit in any way Thompsons right thereafter to enforce and compel strict
    compliance by [Triple P] with every term and condition hereof
 (emphasis
    added).

[40]

I would
    reject this ground of appeal.

(2)

Thompsons Duty to Mitigate its Damages

[41]

The
    evidence at trial established, and the parties accept, that Triple P informed Thompsons
    in early March 2007 of its intention not to deliver the crops purchased by
    Thompsons under the Futures Contracts. In its Statement of Defence, Triple P
    pleaded that: (1) the relevant market commodity prices in March 2007 were less
    than the prices stipulated in the Futures Contracts; (2) Thompsons had the
    opportunity to fully mitigate its losses and damages by purchasing the
    required commodities at the prevailing market prices when it became aware that
    Triple P would not be delivering on the Futures Contracts; and (3) Thompsons
    would have been better off if it had taken reasonable steps to mitigate its
    damages by purchasing the commodities at the lower prices.

[42]

There was
    no evidence at trial of the prevailing market prices for substitute commodities
    contracts in March 2007.  However, Triple P filed a mitigation chart at
    trial, detailing the prices received by Triple P when it sold the crops forming
    the subject matter of the Futures Contracts to third parties. Based on this
    chart, Triple P argues that Thompsons overstated its damages on some of the
    Futures Contracts and that Thompsons would have suffered no damages on most of
    the Futures Contracts had replacement crops or substitute future grain
    contracts been purchased by Thompsons at market prices in March 2007.

[43]

Triple P
    submits that the trial judge erred by failing to take account of this evidence,
    by failing to make requisite findings regarding Thompsons duty to mitigate
    and, more generally, by failing to consider Triple Ps case on mitigation. I
    disagree for several reasons.

[44]

First, on
    the record before this court, it appears that Triple Ps mitigation chart was
    simply filed at trial and, we were advised during oral argument, referenced by
    Triple Ps counsel during closing submissions.  However, the chart does not
    address the availability of substitute future grain contracts, or the value of
    such contracts, if available, as of March 2007.

[45]

Moreover,
    it does not appear that the contents of the chart were supported by any expert
    or other testimony at trial.  And, no cross-examination of any of Thompsons
    witnesses appears to have been conducted regarding Thompsons alleged failure
    to mitigate its damages.  Since it was Triple Ps position that Thompsons could
    reasonably have avoided some, if not all, of the damages claimed, Triple P bore
    the burden at trial to establish Thompsons failure to mitigate:
Michaels
    v. Red Deer College
, [1976] 2 S.C.R. 324, at p. 332;
Barber v. Vrozos
,
    2010 ONCA 570, 269 O.A.C. 108, at paras. 94-95.

[46]

Second, the
    trial judges reasons indicate that she was aware of Triple Ps claim that
    Thompsons was obliged to mitigate its damages under the Futures Contracts and
    that it failed to do so. She referred to Triple Ps mitigation argument near
    the outset of her reasons.

[47]

It is true
    that the trial judge did not use the term mitigation again in her reasons.  However,
    in her review of the evidence adduced by Thompsons at trial, she summarized
    part of the testimony of Thompsons merchandising manager, Darcy Oliphant,
    regarding the Futures Contracts:

Mr. Oliphant testified that ... once contracts are entered into
    with farmers for the purchase of a specific commodity, Thompsons would sell the
    contract at the locked-in price. [Thompsons] would then gain or lose depending
    on the fluctuating market. However, if the farmer did not deliver the commodity
    on the agreed upon day, Thompsons would be required to buy it from another
    grower in order to satisfy its contract to the third party. The price might be
    higher or lower than the initial contract.

Mr. Oliphant testified that Thompsons expects, and relies on,
    producers to physically deliver the crop contracted for. If there was a crop
    shortage, or drought, the contracts contain terms for its cancellation.
    However, if the crop was simply not delivered, [Thompsons] would wait until the
    last possible date for delivery  as stipulated in the contract, and calculate
    a buy-out price and charge an administrative fee.

[48]

Then, at
    the outset of the analysis section of her reasons, the trial judge returned to
    Mr. Oliphants testimony.  She stated:

Darcy Oliphant took the court through the price contracted with
    [Triple P] versus the market prices for the specific commodities on (generally)
    the last day for buy-out.
[Thompsons was] required to wait until the last
    day for delivery on the contracts before [it] could obtain the commodities
    elsewhere. In each instance the CBOT price per bushel was higher than the
    contracted price. Accordingly, [Thompsons] suffered a monetary loss in having
    to replace the various commodities for resale
. There appears to be no real
    issue as to the quantum of damages [Thompsons] alleges it suffered. Rather, the
    issue appears to be set-off.  [Emphasis added.]

[49]

Contrary
    to Triple Ps submission, these passages reveal that the trial judge was alive to
    Triple Ps mitigation argument. They also indicate, again, that she was
    cognizant of the terms of the Futures Contracts, which included this valuation
    provision:

The producer [Triple P] agrees that if, for any reason, he is
    unable to completely fulfill his obligations as specified by this contract, by
    [a stipulated delivery date], the contract will be valued at the market less 15
    cents bushel administration fee.

[50]

Thus, the
    Futures Contracts themselves provided for the time when the value of each contract
    was to be calculated  the contracted delivery date  and for a valuation
    formula  market price less 15 cents bushel administration fee  in the event
    of non-performance by Triple P.

[51]

According
    to Mr. Oliphant, the effect of this provision if the crop was simply not
    delivered was to require that Thompsons wait until the last possible date for
    delivery  as stipulated in the contract, and calculate a buy-out price and
    charge an administrative fee.  As I read her reasons, the trial judge accepted
    Mr. Oliphants testimony on this issue.  She was entitled to do so.

[52]

The above-quoted
    valuation provision of the Futures Contracts indicates that the parties turned
    their minds, at the time of contract formation, to the consequences of
    non-performance by Triple P, including the timing and method for quantifying
    Thompsons consequent losses, if any.  In light of this express bargain, it is
    my view that Thompsons was entitled to rely on the valuation provision to
    forestall any obligation to purchase replacement commodities contracts or crops
    at an earlier date.

[53]

And that
    is precisely what occurred in this case. Triple P unilaterally repudiated the
    Futures Contracts in early March 2007 by declaring its intention not to deliver
    the goods required under those contracts.  In accordance with the valuation provision
    set out in the Futures Contracts, Thompsons then waited, in the case of each contract,
    until the contracted delivery date to value the contract and, hence, to ascertain
    its damages, if any.  It then sued Triple P to recover those damages.

[54]

In these
    circumstances, it cannot be said that the trial judge erred by ignoring or
    failing to deal with the issue of mitigation.  Based on the terms of the
    Futures Contracts and Mr. Oliphants evidence, which she accepted, the trial
    judge rejected Triple Ps mitigation argument.  It was in this context that she
    stated, [t]here appears to be no real issue as to the quantum of damages the
    Plaintiff alleges it suffered. Rather, the issue appears to be set-off.

[55]

The trial
    judge then went on to hold, in effect, that no question of set-off arose in
    this case. On her findings, Thompsons did not breach the Soybean Contracts and
    it never entered into the 2007 Spraying Contract with Triple P.   Consequently,
    Thompsons was not liable to Triple P and Triple P had no damages recoverable
    against Thompsons that could be set-off against any damages owed by Triple P to
    Thompsons.

[56]

I find
    support for the conclusion that the trial judge did not err in her approach to
    the issue of mitigation in the general principles governing mitigation of
    damages.  In
Red Deer College
, at pp. 330-331, the Supreme Court
    explained the duty to mitigate in breach of contract cases in these terms:

The primary rule in breach of contract cases, that a wronged plaintiff
    is entitled to be put in as good a position as he would have been in if there
    had been proper performance by the defendant, is subject to the qualification
    that the defendant cannot be called upon to pay for avoidable losses which
    would result in an increase in the quantum of damages payable to the
    plaintiff.  The reference in the case law to a duty to mitigate should be
    understood in this sense.

In short, a wronged plaintiff is entitled to recover damages
    for the losses he has suffered but the extent of those losses may depend on
    whether he has taken reasonable steps to avoid their unreasonable accumulation.

[57]

These
    principles gained further support in
Asamera Oil Corporation Ltd. v. Sea
    Oil & General Corp.
, [1979] 1 S.C.R. 633.
Asamera
holds that
    in the event of an anticipatory breach or anticipatory repudiation of a
    contract, the innocent party is required to take reasonable steps to avoid
    further loss.  Those steps, however, need not be taken immediately.

[58]

The issue,
    then, is how these principles apply to non-performance of a contract for the
    sale of goods.  The applicable authorities recognize that in the face of an
    anticipatory repudiation or anticipatory breach of contract, the innocent party
    may elect either to affirm the repudiation and sue for damages immediately,
    or to disaffirm the repudiation and treat the contract as subsisting for the
    benefit of both parties.  In the latter event, the innocent party is entitled
    to wait to sue for relief until the performance date specified in the contract.
    S. M. Waddams in
The Law of Damages, Looseleaf Edition
(Toronto: The
    Cartwright Group Ltd., 2008) explains, at 15.400:

Where a party announces in advance an intention not to perform
    a contractual obligation, the innocent party may sue immediately for damages or
    may await the date of promised performance and sue then.  If the innocent party
    sues immediately or otherwise accepts the repudiation, the plaintiff is bound
    to mitigate the loss, a result often expressed by holding that damages
    crystallize at that time.  [Citations omitted.]

[59]

Elsewhere in
    the same text, at 1.1570, Professor Waddams indicates:

Where non-delivery of goods is in question, the usual problem
    is to choose between alternative dates; when the market price changes between
    the date of repudiation and the date of promised delivery, there is an added
    problem.  Even if the argument made elsewhere is accepted to the effect that
    the innocent party is bound to act reasonably in the case of anticipatory
    breach, it is by no means clear to what result this principle would lead in the
    case of an anticipatory repudiation by a seller of goods and a rise in market
    price between repudiation and date of due delivery.  Although, in retrospect,
    it may have become apparent that the market was steadily rising, this is seldom
    obvious in advance because the current market price at any time itself
    represents predictions about the future.  Thus, one can rarely say the market
    is sure to rise and similarly, it is submitted, it can rarely be unreasonable
    to fail to predict market changes.
Where the price rises after the
    repudiation, the cases have generally held that the buyer can recover damages
    based on the higher price at the date of promised delivery
.  Though the
    analytical foundations may be open to attack,
there is, it is submitted,
    considerable practical sense in the rule that a buyer can ignore a repudiation
    and recover the difference between contract and market price at date of due
    delivery, even if this is higher than the market price at the date of repudiation
.
    [Citations omitted; Emphasis added.]

[60]

In this
    case, it was Thompsons unchallenged evidence at trial, provided by Mr.
    Oliphant, that if a farmer failed to deliver on a Thompsons futures contract,
    Thompsons was obliged to purchase the crop in question from someone else in
    order to satisfy its own contractual commitments to its customers.
    Consequently, if non-delivery was foreshadowed, it was Thompsons custom to
    discuss an early buy-out of the futures contract with the defaulting farmer.
    If the defaulting farmer clearly indicated its acceptance of an early buy-out,
    Thompsons would attempt to purchase a substitute commodities contract or
    substitute crop at prevailing market prices.  Failing such instructions,
    Thompsons was obliged under the terms of its standard form futures contracts,
    to wait for the last possible crop delivery date set by the applicable contract
    and to then buy-out the contract in accordance with the valuation provision
    agreed upon by the parties.

[61]

In other
    words, on Thompsons undisputed evidence, its futures contracts determined both
    the timing and the price for the buy-out of a futures contract in the event of
    non-performance by a producing farmer, unless Thompsons and the farmer agreed
    otherwise.

[62]

Under this
    approach, as the market prices for grain crops are constantly in flux, the
    defaulting farmer might benefit financially.  Mr. Oliphant testified that if,
    at the contract delivery date, the contract price to be paid to the farmer was
    more than the market price for the crop in question, Thompsons would buy-out
    the contract by purchasing replacement grain at market price and paying the
    defaulting farmer the difference between the market and contract prices, less
    an administration fee.  Conversely, if, at the contract delivery date, the
    contract price to be paid to the farmer was less than the market price,
    Thompsons loss, to be paid by the defaulting farmer, was the difference
    between the contract and market prices, plus an administration fee.

[63]

There was
    evidence at trial that inquiries were made by Triple P in the spring of 2007
    regarding an early buy-out of the Futures Contracts.  However, Triple P did not
    pursue this option.  Nor did it provide instructions to Thompsons, at any time,
    to complete an early buy-out of the Futures Contracts prior to the specified
    contract delivery dates.  Instead, it simply treated the Futures Contracts as
    terminated and disposed of its crops elsewhere.

[64]

For its
    part, on what I regard as the trial judges findings, Thompsons did not
    affirm Triple Ps anticipatory repudiation of the Futures Contracts.   Instead,
    it elected to await the agreed-upon dates for performance under the Futures
    Contracts and to then value the Futures Contracts and determine contract
    buy-out prices, thereby establishing its losses, if any.

[65]

Read as a
    whole, the trial judges reasons reflect her conclusion that Thompsons did not
    act unreasonably in doing so.  I agree.  By the terms of the Futures Contracts,
    the parties agreed to the allocation of the risks associated with non-performance
    by Triple P in a fluctuating grain market.  The valuation provision in the
    Futures Contracts entitled Thompsons to wait for the last delivery date
    specified to determine its losses, even if, in the interval between the date of
    Triple Ps repudiation (March 2007) and the contract delivery dates in 2007 and
    2008, market prices for the crops in question rose above the agreed contract
    prices.  The trial judges reasons reveal that she appreciated the significance
    of the valuation provision in the Futures Contracts and the evidence as to its
    meaning and effect.

[66]

I conclude
    that the trial judge did not fail to address Triple Ps mitigation argument.
    Nor did she err in her approach to it.  While her reasons for doing so might
    have been more fully or clearly expressed, she simply rejected Triple Ps
    mitigation complaint, on the evidence.  She concluded, in effect, that
    Thompsons actions in all the circumstances were reasonable.  That was her call
    to make.

[67]

I add this
    final observation.  Thompsons and Triple P were not strangers.  Neither party
    was in a less significant bargaining position than the other.  Indeed, each was
    a valued customer of the other.  By the time of their falling out, they had
    engaged in business together for almost 25 years.  They were at liberty to
    structure their commercial affairs as they thought appropriate.  In these
    circumstances, effect should be given to the terms of the Futures Contracts
    upon which they agreed.

(3)

Triple Ps Counterclaim

[68]

Triple Ps
    remaining ground of appeal concerns the trial judges assessment of the merits
    of its counterclaim.

[69]

Triple P
    argues that the trial judge erred by failing to find that Thompsons breached
    the Soybean and 2007 Spraying Contracts and, in the alternative, by failing to
    consider Triple Ps claim for damages based on negligent misrepresentation in
    respect of the 2007 Spraying Contract.

[70]

In my
    opinion, the trial judges finding that Thompsons did not breach the Soybean
    Contracts was firmly anchored in the evidence.  Thompsons denial of a seed
    premium on the Renwick soybeans was based on its conclusion that these soybeans
    did not meet the contracted quality standards.  The Soybean Contracts provided
    for the payment of a seed premium on a clean seed basis if the seed meets CSGA
    and [Thompsons] minimum quality standards.  They also stated that if the
    soybeans did not grade Canada No. 1, Thompsons had the option of either
    accepting or rejecting the soybeans for seed and/or negotiating a reduced
    price.

[71]

There was
    evidence at trial that, on testing by Thompsons itself and by the Canadian
    Grain Commission at Bill Forans request, the Renwick soybeans fell below the
    seed grade specified in the Soybean Contracts.  Triple P did not conduct its
    own grading or testing of the Renwick soybeans.  Nor did it arrange for testing
    to be done by the Canadian Food Inspection Agency, as was permitted under the
    Soybean Contracts.

[72]

Furthermore,
    when Triple P elected to sell the Renwick soybeans to a third party purchaser,
    Archer Daniels Midland (ADM), in mid-January 2007, ADM assigned the Renwick
    soybeans a grade of Grade 2, below the minimum grade agreed on by Thompsons and
    Triple P in the Soybean Contracts.  Triple P also sold the Respond soybeans to
    ADM, although Thompsons had raised no complaint about their quality.

[73]

Accordingly,
    there was ample evidence to support the trial judges finding that the Renwick
    soybeans fell below grade, thus disentitling Triple P to a seed premium on
    them.  The trial judges finding that Thompsons was prepared to pay the seed
    premium on the Respond soybeans, but was prevented from doing so because Triple
    P unilaterally elected to sell them to a third party, is not challenged before
    this court.

[74]

I also see
    no basis for appellate interference with the trial judges conclusion that
    Thompsons did not agree to award its 2007 spraying work to Triple P.

[75]

Triple Ps
    claim that Thompsons offered and Triple P accepted the 2007 Spraying Contract
    rests on the evidence of a discussion between Jerry Prelaz and Bill Foran that
    occurred in late December 2006.  At trial, Jerry Prelaz testified that, during
    this discussion, he inquired of Mr. Foran about the spraying work for 2007,
    asking: So you think we will be able to carry on business next year as we did
    this year?  Mr. Foran replied Sure, but gave no indication of the number of
    acres to be involved in the work or of any other details concerning the 2007
    spraying work.

[76]

Based on
    this exchange, Jerry Prelaz said that he understood that Mr. Foran had
    provided the indication that [Triple P] would be doing the spraying for
    2007.  Mr. Foran also testified at trial.  No questions were asked of him
    concerning this discussion with Jerry Prelaz.

[77]

The trial
    judge concluded that this discussion was insufficient to constitute a contract
    between the parties for the 2007 custom pesticide spraying.  She noted that the
    evidence established that, for several years prior to the discussion in
    contention, Thompsons annual spraying contracts were formalized in writing.

[78]

In his own
    evidence, Jerry Prelaz acknowledged that, commencing in approximately 2000,
    Thompsons required written contracts for its spraying work.  He also said that
    custom spraying contracts with Thompsons were usually all signed, sealed and
    delivered by, in December, even though the formal written contracts were often
    signed later.  He said that, from Triple Ps perspective, this was very
    important because Triple P needed time to hire and train workers and to work
    out all necessary details before the start of the spraying season for the
    spraying work for Thompsons and Triple Ps other spraying customers.

[79]

It is
    undisputed that no written 2007 Spraying Contract was entered into by the
    parties.  In addition, even on Jerry Prelazs account of his December 2006
    discussion with Mr. Foran, no details regarding Thompsons 2007 spraying work
    were ever discussed with Triple P.

[80]

Further, it
    appears that after the December 2006 discussion, Triple P did not pursue a
    written contract for the 2007 spraying work with Thompsons although it knew
    that such contracts were required.  It was not until mid to late February 2007,
    shortly before the spraying work was due to begin, that Jerry Prelaz again
    inquired of Bill Foran about the 2007 Spraying Contract.  And, according to Mr.
    Foran, even in February 2007, he made no commitment regarding the 2007 spraying
    work.

[81]

It is
    important to remember that by February 2007, a serious fissure in the parties
    business relationship had developed, tempers had flared and angry words had
    been exchanged.  It was against this backdrop that Mr. Foran informed Triple P,
    at the end of February, that it would not be doing Thompsons 2007 spraying
    work.

[82]

Viewed in
    this context, and in light of Thompsons admitted post-2000 practice of
    requiring written contracts for its spraying work and the lack of specificity
    in Mr. Forans remark to Jerry Prelaz in December 2006 regarding the 2007
    spraying work, there was ample evidentiary justification for the trial judges
    conclusion that no enforceable 2007 Spraying Contract was entered into by the
    parties.

[83]

Before
    this court, Triple P argues that the trial judge misapprehended its position
    concerning the 2007 spraying work.  It submits that its claim on this issue was
    not based on breach of contract but, rather, on Bill Forans alleged
    misrepresentation, in his December 2006 exchange with Jerry Prelaz, that Triple
    P would receive the 2007 Spraying Contract.  By reason of that alleged
    misrepresentation, Triple P maintains that Thompsons is estopped from denying
    Triple Ps entitlement to damages for its losses associated with the 2007 Spraying
    Contract.

[84]

With
    respect, I have difficulty understanding the basis for this submission.  The
    trial judges reasons must be read in the context of the case before her.
    Triple Ps claim regarding the 2007 spraying work, as pleaded, was framed
    solely in contract.  Its Statement of Defence and Counterclaim makes no mention
    of misrepresentation, promissory estoppel or, more generally, tort-based relief.
    There is no suggestion that Triple Ps pleading was amended before or at trial.

[85]

In any
    event, I regard Mr. Forans reply of Sure to Jerry Prelazs December 2006
    inquiry whether the parties would be able to carry on business next year as we
    did this year, as falling far short of the particularity required to make out an
    actionable misrepresentation concerning the 2007 spraying work.

[86]

It follows
    that Triple Ps claim for damages in relation to the 2007 spraying work, whether
    grounded in contract or in tort, was properly rejected by the trial judge.

[87]

Finally, I
    recognize that Triple P also alleges on appeal that Thompsons breached an
    overriding duty of good faith performance of contractual responsibilities.  Assuming,
    without deciding, that this claim is available to Triple P, it must also fail.
    It depends on a finding of contractual breach by Thompsons, which was not made
    out by Triple P.

V.      Disposition

[88]

For the
    reasons given, I would dismiss the appeal.  I would award Thompsons its costs
    of the appeal, fixed in the amount of $18,000, inclusive of disbursements and
    all applicable taxes.

Signed:        E. A. Cronk J.A.

I agree M. Rosenberg J.A.

I agree David Watt J.A.

Released: March 21, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:
Toronto-Dominion
    Bank v. Dhaliwal, 2012 ONCA 148

DATE: 20120309

DOCKET: C54010

Feldman and Hoy JJ.A. and Spence J. (
ad hoc
)

BETWEEN

The Toronto-Dominion Bank

Plaintiff (Respondent)

and

Harcharan Dhaliwal

Defendant (Appellant)

Abba Chima, for the appellant

Amanda Jackson, for the respondent

Heard: February 16, 2012

On appeal from the order of Justice Patrick J. Flynn of
    the Superior Court of Justice, dated June 23, 2011.

ENDORSEMENT

[1]

The appellant appeals from the decision of the motion judge
    dismissing his motion to set aside default judgment in the amount of
    $83,619.30. On the appeal the appellant takes the position that the decision
    must be set aside as the motion judge, by some of his comments, particularly
    during argument, as well as in his ruling, displayed a reasonable apprehension
    of bias against the appellant.

[2]

Counsel has directed the court to a number of places in the
    transcript of the motion proceedings where he suggests that the judges
    comments demonstrate pre-judgment of the issues and a disposition against the
    appellant.

[3]

We have read the entire transcript in order to evaluate the
    impugned comments in the context of all of the facts and of the entire hearing.
    Having done so, we reject the position of the appellant.

[4]

As an example, at the opening of the motion, the trial judge
    commented on the length of time it had taken to bring on the motion  one year-
    and the fact that counsel for the appellant had sworn the affidavit. Counsel
    explained that he had not been counsel at the time he swore the affidavit but
    that he was helping original counsel who was currently unable to practice. The
    appellant eventually swore another affidavit and current counsel stated that he
    had decided, for purposes of expediency, to argue the motion himself. Following
    this discussion, at p. 3 of the transcript, the motion judge said:

THE COURT: I, I would sort of take issue, Mr. Chima, with
      anyones use of the word expedient in this proceeding. It has not, you, you
      could have dissected this thing a thousand times by the time its got to me.
Its
        not going to go further than me, though
.
[Emphasis added.]

[5]

Counsel submits that the last line of this comment means that the
    judge had already decided to dismiss the motion. We do not agree. In context,
    he was saying that the motion was going to be heard by him that day, and not
    delayed any further.

[6]

The appellant also points to the motion judges use of words such
    as puffery, smoke screen and phantasmagoric to describe the appellants
    proposed defence as indicating bias or prejudgment. While these words are colourful,
    they do not demonstrate bias. We agree with the submission of counsel for the
    respondent who submitted that when the transcript is read in its entirety, it
    shows that while the motion judge was somewhat informal and colourful in his
    use of adjectives and imagery, he was not biased and made a just and fair
    determination based on the facts and evidence.

[7]

The appeal is therefore dismissed with costs to the respondent
    fixed at $5,500 inclusive of disbursements and H.S.T.

Signed:        K. Feldman J.A.

Alexandra Hoy J.A.

Spence J. (ad hoc)