Court of Appeal for Ontario
CITATION: Pax-All Manufacturing Inc. v. Provit Canada Limited, 2010 ONCA 265
DATE: 20100412
DOCKET: C49956
Gillese, Lang and Rouleau JJ.A.
BETWEEN:
Pax-All Manufacturing Inc.
Plaintiff (Appellant)
and
Provit Canada Limited and Majid Abdul Khan
Defendants (Respondents)
Leo Klug, for the appellant
No one appearing, for the respondents
Heard: April 9, 2010
On appeal from the judgment of Justice Jane Milanetti of the Superior Court of Justice dated January 5, 2009.
APPEAL BOOK ENDORSEMENT
[1] No one appeared on behalf of the respondent.
[2] We would allow this appeal. The trial judge appears to have understood the case against Mr. Khan as a matter of piercing the corporate veil. However, the appellant’s argument at trial and before this court is that it contracted with both the corporate defendant and Mr. Khan. Counsel points to the two contractual documents in support of this submission, as well as the testimony of his client. The first document is a quotation. The quotation is to Mr. Khan alone.
[3] The second document is the purchase order. It is sent to both the corporate defendant and Mr. Khan. Mr. Khan signed the purchase order with no indication that he did so in a corporate capacity.
[4] We note that the credit application did not form part of the contractual documentation.
[5] We further note that Mr. Khan did not testify at trial nor did he call any evidence.
[6] In light of the evidence of Mr. Morino, the absence of any conflicting testimony, and the contemporaneous documents which support the argument that the appellant contracted with both the corporate defendant and Mr. Khan, we are satisfied that the appeal must be allowed.
[7] Accordingly, the appeal is allowed and para. 3 of the judgment of Milanetti J. dated January 5, 2009, is varied to read:
- This Court further orders that the plaintiff do recover from the defendant, Majid Abdul Khan, the sum of $89,849.94 together with pre-judgment interest in accordance with the Courts of Justice Act.
[8] The appellant shall have costs of the appeal fixed at $3000, all inclusive.