DATE: 2006-11-23

DOCKET: C44519

COURT OF APPEAL FOR ONTARIO

RE: CLAUDE VILLENEUVE CO. LTD. (Plaintiff/Appellant) – and – PAUL POMINVILLE and NOELLA POMINVILLE (Defendants/Respondents)

BEFORE: FELDMAN, CRONK and BLAIR JJ.A.

COUNSEL: G.A. Wainwright for the appellant

Robert Riopelle and Pierre Lambert-Bélanger for the respondents

HEARD & RELEASED ORALLY: November 9, 2006

On appeal from the judgment of Justice David J. Nadeau of the Superior Court of Justice dated August 31, 2005.

E N D O R S E M E N T

[1] Claude Villeneuve Co. Ltd. appeals from the decision of Justice Nadeau of the Superior Court of Justice dated August 31, 2005, (1) dismissing the appellant’s action and (2) allowing the respondents’ counterclaim for rescission of an agreement between the parties pertaining to the removal of sand and gravel from the respondents’ property.

[2] The trial judge also ordered the appellant to remove the agreement from the title to the respondents’ property and ordered the respondents to pay the appellant the sum of $4,000 on the basis of unjust enrichment.

[3] The appellant submits that the trial judge erred in setting aside the agreement on the basis of unconscionability, erred in deciding significant credibility issues without a proper analysis of the evidence, erred in granting rescission when this remedy should have been barred by laches and delay and erred in only granting the sum of $4,000 for compensation as a way of putting the appellant back into its original position as a term of granting rescission.

[4] We disagree.

[5] The trial judge’s reasons demonstrate that he addressed the issue of credibility – which he correctly observed was the central issue in the case – throughout his reasons, after having set out the general principles that he considered and applied at the beginning of those reasons. Although the trial judge’s reasons were not detailed in his treatment of the specifics of the evidence, a reading of them as a whole makes it clear that the trial judge did not accept the story told to him by Mr. Villeneuve, the principal plaintiff’s witness, or the evidence put forward by the plaintiff as a whole, and why. The trial judge need not explain his reasoning with respect to every piece of evidence or contradictions raised. His findings were clearly open to him on the record. In particular, contrary to the appellant’s submission, the discovery evidence of Mr. Boivin did not contradict the evidence of the respondents. Mr. Boivin did not have an independent recollection of the events surrounding the execution of the agreement in this case; rather, his testimony concerned only his general approach.

[6] The credibility determinations were undoubtedly important to the trial judge’s approach to the case. Having made his determinations in that regard, there was ample evidence to support his decision to rescind the agreement on unfairness and hardship grounds. This evidence included the circumstances surrounding the execution of the agreement, the fact that the second agreement contained significantly different terms than the first (a perpetual term and a termination clause only in favour of the appellant), the lack of independent legal advice to the respondents, the unequal bargaining position of the parties, the fact that everything was done in English including the agreements (whereas the Pominvilles were unilingual francophones), the overreaching nature of certain aspects of the agreement, the treatment of the respondents, and their difficulties with registration of the agreement against their title: see Justice Robert J. Sharpe, Injunctions & Specific Performance, 3rd ed. (Aurora, Ont.: Canada Law Book, 2000) c. 10 at para. 10:20, and G.H.L. Fridman, The Law of Contract in Canada, 5th ed. (Toronto: Carswell, 2006) at 812-813.

[7] The trial judge specifically addressed the issue of laches and delay and found on the facts that the respondents’ conduct did not amount to laches or delay in the circumstances. We can find no basis for interfering with the trial judge’s conclusion in this regard. The respondents did not become aware of the agreement on title until 1995 and, thereafter, had difficulty finding a francophone lawyer in the area who would act for them. The trial judge also found that the respondents had attempted to raise their concerns with the appellant but to no avail.

[8] Nor would we interfere with his decision to award $4,000 as compensation for unjust enrichment. The trial judge considered the frailties of the evidence put forward regarding the appellant’s expenses and the fact that the appellant would not be saddled with remedial costs after closure of the site. It was open to him in the circumstances to order the sum that he did.

[9] Accordingly, the appeal is dismissed. The appellant is entitled to costs of the appeal fixed at $17,500, inclusive of disbursements and G.S.T.

“K. Feldman J.A.”

“E.A. Cronk J.A.”

“R.A. Blair J.A.”