Court File and Parties

CITATION: Farr Lumber Ltd. v. Truserv Canada Inc., 2010 ONCA 489

DATE: 20100708

DOCKET: C51660

COURT OF APPEAL FOR ONTARIO

MacPherson, Cronk and Karakatsanis JJ.A.

BETWEEN:

Farr Lumber Ltd.

Appellant

and

Truserv Canada Inc.

Respondent

Counsel:

Margaret A. Hoy, for the appellant Farr Lumber Ltd.

John S. McKeown, for the respondent Truserv Canada Inc.

Heard and released orally: July 6, 2010

On appeal from the order of Justice B. H. Matheson of the Superior Court of Justice, dated January 8, 2010.

ENDORSEMENT

[1] The appellant appeals from the order of Matheson J., dated January 8, 2010, granting partial summary judgment and costs to the respondent. The motion judge dismissed the appellant’s claims for breach of fiduciary duty, an accounting and redemption of shares. He refused to grant the motion for summary judgment with respect to the appellant’s claim for overcharging, finding that it could proceed to trial. Finally, he dismissed the appellant’s motion for summary judgment.

[2] With respect to the claim for breach of fiduciary duty, the motion judge found that the parties had a commercial relationship and there were no facts pleaded and no evidence to support the claim that the respondent had a fiduciary duty towards the appellant. In this case, the member’s agreement does not itself give rise to a fiduciary relationship. While the motion judge referred to the respondent as an agent, agency was neither pleaded nor argued on the motion. We agree with the motion judge that the existence of a fiduciary duty was not a genuine issue for trial.

[3] With respect to the claim for an accounting, in its factum the appellant tied the claim for an accounting to the claim for breach of fiduciary duty. As that claim was dismissed, we agree with the motion judge that the remedy of an accounting cannot stand alone. The appellant’s claim for an accounting for an alleged breach of contract can be pursued as part of the claim for overcharging which is to be tried.

[4] On the issue of the claim for redemption of shares, the motion judge was entitled to find on the evidence before him that the appellant did not have the right to redeem the shares. In its factum, the appellant suggests on appeal that this constituted unjust enrichment. This was not pleaded and not argued before the motion judge. We would reject this ground of appeal. A court-ordered redemption of the shares is not available on the appellant’s pleading as it currently stands.

[5] Finally, the costs award is not plainly wrong and we find no error in principle.

[6] The appeal is therefore dismissed. The respondent shall have costs of the appeal fixed in the total amount of $10,000.

“J. C. MacPherson J.A.”

“E. A. Cronk J.A.”

“Karakatsanis J.A.”