COURT FILE NO.: 471/02

DATE: 20031121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

EUNA EXPORT IMPORT LIMITED

Plaintiff (Respondent)

• and -

CAN-AM DOM-ARC WELDING ALLOYS INC.

Defendant (Appellant)

James R. Olchowy, for the Respondent

Avril Hasselfield, for the Appellant

HEARD: November 21, 2003

MCRAE J.: (Orally)

1This is an appeal from Judge Godfrey of the Toronto Small Claims Court wherein he granted judgment to the plaintiff/respondent in the amount of $5,500, plus costs of $150 for the sale of goods.

2The law is not in dispute. Section 15 of the Sale of Goods Act provides that there is in the circumstances of this case an implied condition that the goods would be reasonably fit for the purpose intended for their use.

3The appellant purchased welding wire from the respondent for a price of $37,808.18 which it has always maintained was somewhat defective and that the certification of the wire had expired at the time of the sale. There was some evidence at trial, not limited to but including attendance at the warehouse for a view by the Judge, which confirmed that there were defects, that is, rust and possibly cracks in the wires. There was also evidence by way of two letters that could lead one to conclude that the product certification had expired. An exhibit at the trial was a letter addressed to Joe Linshalm, a principal of the appellant company from the certifying body The Canadian Welding Bureau to the following effect:

“Re: Electrode Certification of Euna Export/Import Limited

This is to confirm with you that the product of Euna Export/Import Limited, ER480S-6 is not certified since April 18, 2000. A letter was sent by fax to the above company regarding the withdrawal of certification on April 18, 2000.”

That is over the signature of Alice Y. Lau, Manager of Production Certification.

4There was another similar but not identical letter in evidence at the trial by the same Ms. Lau. This time addressed to Mr. Grubic of the respondent company saying:

“Further to my letter dated April 9, 2002 addressing to Mr. Joe Linshalm (Dom Arc Welding Alloys), this is to confirm with you that the product of your company, ER480S-6 is not certified since April 18, 2000.

However, the products manufactured between April 24, 1990 to April 18, 2000 were certified during the period of April 24, 1990 to April 18, 2000.

If you have any concerns, please contact me again.”

5The appellant submits that the learned Judge failed to appreciate the effect of the finding of the defects and that he failed to give proper weight to the evidence of the appellant that showed that the amount of damage to the goods as evidenced by the complaints and returns made by the appellant’s customers.

6Counsel also contends that the Judge erred in fact when he found that the subject goods were still certified and that because of these errors the judgment cannot stand.

7I am unable to agree. The learned trial Judge addressed both of these issues in his judgment and arrived at a conclusion which can be supported by the evidence. The evidence with respect to whether the wire was still under certification is equivocal. The evidence of the respondent was that the certification continued for two years beyond the manufacturing date which was 1999 and so it was still under certification in August of 2000. No one was called from the Canadian Welding Bureau to testify to the length of time that certification lasted. The onus was on the defendant to prove that the wire was no longer certified. It was open to the trial Judge to find as he did.

8With respect to the defects in the product, there was again a lack of evidence from the appellant with respect to the extent of the damage, except that of hearsay which the Judge refused to accept in full.

9He rightly found that the appellant could have called expert evidence in this regard which it failed to do. He did reduce the amount of claim by over $300 and granted judgment in the end for $5,500. I cannot say that he made an overriding or palpable error in doing so. The appeal is dismissed.

10Costs to the respondent on the appeal fixed at $500, including disbursements and GST.

MCRAE J.

Date of Reasons for Judgment: November 21, 2003

Date of Release: November 25, 2003

COURT FILE NO.: 471/02

DATE: 20031121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT