DATE: 20050914

DOCKET: C42469

COURT OF APPEAL FOR ONTARIO

RE:

R. E. FAUBERT FARMS LTD. (Plaintiff (Respondent)) – and – J. CERASANI LIMITED, SAM RAFFOUL and PAUL ELIAS (Defendants (Appellant Sam Raffoul)

BEFORE:

CRONK, LANG and JURIANSZ JJ.A.

COUNSEL:

Hugh M. MacKenzie

for the appellant Sam Raffoul

Stanley G. Mayes

for the respondent

HEARD & RELEASED ORALLY:

September 8, 2005

On appeal from the Judgment of Justice J. A. Desotti of the Superior Court of Justice dated February 27, 2004.

E N D O R S E M E N T

[1] The dispute in this case arises from a March 2000 contract concerning the provision of farm produce by the respondent R. E. Faubert Farms Ltd. (“Faubert”) to a partnership known as “Ontario Farmland”, the principals of which were Sam Raffoul and Paul Elias. The contract at issue is expressed to be between Faubert as “Grower” and J. Cerasani Ltd. (“Cerasani”) as “Packer”. The only named signatories to the contract are Faubert and Elias “per J. Cerasani Ltd.”.

[2] However, the words “Ass: Ontario Farmland” were added by hand to at least one copy of the typewritten contract, beside the initial reference to Cerasani. It is acknow-ledged that this handwritten change was initialled by Elias but not by or on behalf of Faubert. But the words were added at the request of Faubert because, according to his testimony at trial, he was familiar only with Ontario Farmland and not with Cerasani.

[3] The trial judge held that the addition of these words, being the name of the Ontario Farmland partnership as initialled by Elias, was “sufficient to bring the partnership and the individuals Paul Elias and Sam Raffoul as parties to this contract”. The appellant Sam Raffoul appeals this imposition of personal liability.

[4] The trial judge’s factual finding as to the identity of the parties to the contract attracts considerable deference from this court. In our view, this finding was open to him on the evidence. This is sufficient to dispose of this appeal.

[5] Moreover, on this record, we are satisfied that the appellant Sam Raffoul benefited from the contract, together with his partner Elias, through one or both of Cerasani and Ontario Farmland and that none of the parties mentioned in the contract paid the respondent for the produce that was admittedly supplied.

[6] Accordingly, the appeal is dismissed. The respondent is entitled to its costs of the appeal on a partial indemnity basis, fixed in the amount of $9,000, inclusive of disburse-ments and GST.

“E.A. Cronk J.A.”

“S. E. Lang J.A.”

“R. G. Juriansz J.A.”