COURT OF APPEAL FOR ONTARIO
RE:
OurPLANE INC. (Plaintiff (Appellant on Appeal)) – and – CANCORP GROUP LTD. (Defendant (Respondent on Appeal))
BEFORE:
SIMMONS, GILLESE AND LAFORME JJ.A.
COUNSEL:
Ronald G. Chapman
for the appellant
Domenico Magisano
for the respondent
HEARD & RELEASED ORALLY:
March 1, 2005
On appeal from the judgment of Justice Russell Juriansz of the Superior Court of Justice dated August 26, 2003.
E N D O R S E M E N T
1OurPlane Inc. appeals from a judgment of Juriansz J. dismissing its claim against Cancorp Group Ltd. for breach of an agency agreement, negligent misrepresentation and breach of contract.
2In dismissing OurPlane’s claim the trial judge made several significant findings:
(1) there was no agency agreement between the appellant and Cancorp;
(2) the appellant failed to establish reasonable reliance on a statement by the principal of Cancorp that the rate of interest was in the range of 12%; and
(3) because there was no agency relationship between Cancorp and OurPlane, Cancorp was under no duty to advise OurPlane of the commission being changed by the breach.
3Given that, in our view, there was evidence capable of supporting the trial judge’s findings, the appellant has not established that the trial judge made any error in making them.
4Further, we reject the appellant’s claim that the respondent failed to plead lack of reliance. The appellant pleaded reliance at paragraph 9 of its statement of claim. At paragraph 2 of its statement of defence, the respondent denied that pleading. Moreover, there was adequate cross-examination relating to reliance to permit the trial judge’s conclusions.
“Janet Simmons J.A.”
“E.E. Gillese J.A.”
“H.S. LaForme J.A.”