Court of Appeal for Ontario
Before: Moldaver, Armstrong and Blair JJ.A.
Between:
Bruce Waddell
Plaintiff (Respondent)
and
Woodbury Realty Corporation and Richard Westlake
Defendants (Appellants)
Counsel:
F. Scott Turton for the appellant
John Ritchie for the respondent
Heard and endorsed: September 26, 2008
On appeal from the judgment of Justice Barbara Conway of the Superior Court of Justice dated May 7, 2007.
APPEAL BOOK ENDORSEMENT
1Without agreeing or disagreeing with the reasons of the trial judge for rejecting the appellants’ statutory arguments concerning the respondent’s alleged failure to present the promissory note for payment and his further failure to notify the guarantor, Mr. Westlake, that the note had been dishonoured, we would dismiss the appeal and affirm the trial judgment for different reasons.
2At trial, the appellant did not plead the provisions of the Bills of Exchange Act upon which they now rely. By way of explanation, they assert that they did not discover the respondent and only became aware of the “statutory” defences when he testified at trial. (That argument, we note, may apply to the issue of presentment, it does not hold sway on the dishonourment issue).
3Be that as it may, upon becoming aware of the evidence giving rise to the statutory defences, the appellants did not seek leave to amend their pleading; rather they moved for a non-suit.
4In the circumstances of this case, having failed to obtain the requisite amendments, we are of the view that the appellants should not have been permitted to raise the statutory arguments. This is because there was evidence in the record from which it might be inferred that the appellants had, by their prior conduct, (making at least 3 payments on the note) waived the need for presentment in accordance with s. 91 of the Act. Absent the requisite amendments, there was no need for the respondent to seek to have the case re-opened.
5In sum, absent a successful motion to amend, the appellants should not have been permitted to argue the statutory defences. And as these arguments form the sole basis of their appeal, the appeal must be dismissed.
6We agree with the respondent that costs should be awarded on a substantial indemnity basis in light of clause 8.1 of the Agreement. We are further of the view that the sum of $11,902.87 inclusive, sought by the respondent, is reasonable in the circumstances. An order will go accordingly.
