CITATION: Head to Toe Uniforms Inc. v. North Hill Private School (Woodbridge) Inc., 2012 ONSC 5289
DIVISIONAL COURT FILE NO.: 139/11
DATE: 20120919
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, ASTON AND LAX JJ.
BETWEEN:
HEAD TO TOE UNIFORMS INC.
Plaintiff
(Respondent)
– and –
NORTH HILL PRIVATE SCHOOL (WOODBRIDGE) INC.
Defendant
(Appellant)
Hedy L. Epstein, for the Respondent
Allan Rouben, for the Appellant
HEARD at Toronto: September 19, 2012
CHAPNIK J. (ORALLY)
[1] This is an appeal from the judgment of Roberts J. who, after a trial, held in favour of the respondent on the basis of breach of contract and awarded the respondent $19,263.30 plus prejudgment interest and costs.
[2] The appellant seeks to set aside the judgment of the trial judge arguing that she erred in findings of fact and made errors of law in assessing mitigation and in determining costs. Briefly, the appellant entered into a contract for the supply of school uniforms by the respondent. The contract was extended by a written agreement that included a new term, namely, that the appellant would purchase all the respondent’s remaining stock failing a further extension of the contract. The contract was not extended further. The respondent commenced an action under the Simplified Rules Procedure alleging breach of contract or in the alternative, breach of promise to pay due to the failure of the appellant to purchase the respondent’s remaining stock.
[3] The trial judge concluded that the appellant was bound by the term in the extension agreement to pay for any remaining inventory at the end of the agreement and since it failed to do so, it was in breach of the agreement. The Court accepted the respondent’s evidence that damages were in the sum of $19,263.30, the price including GST of the remaining inventory. She also found that the respondent did not overstock or inflate its inventory.
[4] As for the issue of mitigation, Roberts J. held that the appellant failed to prove the respondent did not mitigate its damages and that the evidence showed the respondent did take reasonable steps to lower its remaining inventory and thus mitigated damages. Moreover, some of the steps taken by the respondent to do so, she found, were impeded by the appellant.
[5] The standard of review in an appeal from a judge’s decision was addressed in Housen v. Nikolaisen, [2002] S.C.C. 33 and 2002 SCC 33, [2002] 2 S.C.R. 235. The standard of review on a question of law is correctness whereas findings of fact cannot be reversed absent a palpable and overriding error. That is, unless an imputed error is identified and shown to have affected the result. Questions of mixed fact and law lie on a spectrum but where they are inseparably intertwined, the decision requires deference.
[6] The appellant contends that the trial judge ignored relevant evidence and misapprehended evidence. There is no obligation on a trial judge to refer to every detail of the evidence in his or her reasons.
[7] It is apparent to us in the reasons of Roberts J. as to how she reached the conclusion that she did. The trial judge carefully considered the evidence before her and provided cogent reasons for her decision. It was open for the judge to reach the conclusions she did on the evidence before her, including the evidence relating to the issue of mitigation. She made clear findings of fact and credibility that are entitled to deference from this Court. What the appellant is attempting to do quite simply is to re-litigate the case.
[8] The reasons of the trial judge demonstrate an appreciation of the facts, issues and the law. Her decision is well-reasoned and her factual findings well-supported by the evidence. The appellant has not shown a palpable or overriding error, misapprehension of fact or error in principle in her articulated reasons.
[9] The appellant also appeals the costs award. As to the matter of costs, the appellant argued that the trial judge committed an error of law by failing to consider Rule 57.05(1) of the Rules of Civil Procedure which permits a court to order no costs if a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court. We note that there had been an unsuccessful motion to transfer this matter to Small Claims Court.
[10] Clearly, costs are in the discretion of the Court, pursuant to s.131 of the Courts of Justice Act. The trial judge considered the respondent’s offer to settle made pursuant to Rule 49.01 and the factors in Rule 57.01(1) and exercised her discretion accordingly.
[11] We note that she heard submissions and gave separate and comprehensive reasons for her decision on costs. We take particular note of paragraph 14 of her decision which reads as follows:
The fact that the plaintiff’s total costs may exceed the amount of the Judgment awarded is not the plaintiff’s fault. The additional time was directly a consequence of the defendants’ conduct as already noted. As provided for under Rule 57.01(1)(e), I may consider the conduct of the defendant that tended to lengthen unnecessarily the duration of the proceeding in the exercise of my discretion under section 131 of the Courts of Justice Act.
[12] Costs were awarded to the respondent in the all-inclusive sum of $17,752.53. The costs order was a reasonable exercise of the Judge’s discretion and should not be interfered with on appeal. Leave to appeal the costs award is granted if necessary, but the appeal is dismissed. In the result, the appellant’s appeal is dismissed in its entirety.
SUBMISSIONS ON COSTS
[13] We find the respondent’s Bill of Costs to be reasonable and within the reasonable expectation of the parties. I have endorsed the Appeal Book and Compendium, “For oral reasons given this day, the appeal is dismissed. Costs to the respondent in the all-inclusive sum of $7,296.76. Order to go that funds paid pursuant to the judgment and in accordance with the order of Wilson J. rendered April 4, 2012 in para. 1(a) be released to the respondent forthwith.”
CHAPNIK J.
ASTON J.
LAX J.
Date of Reasons for Judgment: September 19, 2012
Date of Release: September 24, 2012
CITATION: Head to Toe Uniforms Inc. v. North Hill Private School (Woodbridge) Inc., 2012 ONSC 5289
DIVISIONAL COURT FILE NO.: 139/11
DATE: 20120919
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, ASTON AND LAX JJ.
BETWEEN:
HEAD TO TOE UNIFORMS INC.
Plaintiff
(Respondent)
– and –
NORTH HILL PRIVATE SCHOOL (WOODBRIDGE) INC.
Defendant
(Appellant)
ORAL REASONS FOR JUDGMENT
CHAPNIK J.
Date of Reasons for Judgment: September 19, 2012
Date of Release: September 24, 2012