COURT FILE NO.: 08-952
DATE HEARD: 20090402
SUPERIOR COURT OF JUSTICE – ONTARIO
(DIVISIONAL COURT)
RE: ALCIDE ROMEO SID PREVOST, Plaintiff (Respondent)
-and-
DALE GILMOUR, Defendant (Appellant)
BEFORE: Justice C. McKinnon
COUNSEL: G. Eldon Horner, for the Appellant K. Guy Willis, for the Respondent
On appeal from the decision of Deputy Judge D. White sitting as a judge of the Small Claims Court dated June 19, 2008.
C. McKinnon J.
E N D O R S E M E N T
[1] I am persuaded that the appeal on the merits should fail. At its core, the appeal could only succeed if the sale of coins could be characterized as a “sale by description” in accordance with s. 14 of the Ontario Sale of Goods Act, which provides that where there is a contract for the sale of goods by description, there is an implied condition that the goods will correspond with the description.
[2] Both the appellant and the respondent were sophisticated in the business of buying and selling coins, and had dealt with one another on previous occasions. The parties communicated with each other over a number of weeks with respect to the sale of the respondent’s entire coin collection, consisting of some 700 or 800 coins, of which approximately 20 were of significant value. The appellant took possession of the entire collection for a full week to permit him the opportunity to examine the coins. One in particular was tested and found to be fraudulent and was removed from the collection. The appellant was under no time restraint in his ability to examine the coins as to their authenticity. In effect, the contract was for the sale of specific goods, made available to the appellant for examination of any kind, and constituted the only goods to be sold under the contract: see Fridman, Sale of Goods in Canada, 5th edition, p. 53.
[3] In such circumstances, section 14 of the Ontario Sale of Goods Act did not apply. Even if the section were to apply, the trial judge found that the goods were excepted by s. 15(2) of the Act, because the appellant examined the goods, which was an appropriate finding given the facts of the case.
[4] The evidence reveals that there were no collateral warranties or misrepresentations that would attract the right of recession of the contract to purchase.
[5] Moreover, the complaint of the appellant that the subsequent independent analysis of the coins showed that numerous coins were counterfeit was found not to have been proven, based on credibility findings made by the learned trial judge.
[6] Even assuming that the coins complained of as being counterfeit were in fact so, the doctrine of caveat emptor applied, as found by the trial judge: see King v. Foote (1961), 1961 191 (ON SC), O.R., 489 (Ont. H.C.J.) and Shapiro v. Banque Canadienne Nationale et al, 1981 2642 (MB QB), [1981] 4 W.W.R., 560 (Man. C.A.), more recently approved in Mautner v. Metcalf (2008), 2008 3969 (ON SC), 42 B.L.R. (4th) 309, 164 A.C.W.S. (3d), 889 at para 7.
[7] Both counsel agree that the learned trial judge erred in assessing costs in excess of the maximum amount permitted under s. 29 of the Ontario Courts of Justice Act, which limits recovery to $1,500 unless the court considers it necessary to penalize a party for unreasonable behaviour. No such suggestion was raised at trial and the costs endorsement is silent on the point. In the circumstances, the costs award shall be varied to $1,500 all inclusive.
[8] Costs of this appeal, if not agreed to by the parties, shall be determined after the parties provide short written submissions within 30 days of this decision.
The Hon. Mr. Justice Colin McKinnon.
DATE RELEASED: April 2, 2009.
COURT FILE NO.: 08-952
DATE HEARD: 20090402
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: Alcide Romeo Sid Prevost Plaintiff (Respondent)
-and-
Dale Gilmour Defendant(appellant)
BEFORE: Justice C. McKinnon
COUNSEL: G. Eldon Horner, for the Appellant K. Guy Willis, for the Respondent
ENDORSEMENT
C. McKinnon J.
DATE RELEASED: April 2, 2009.