PLB International Inc. v. All Pet Distributing Inc., 2013 ONSC 1027
CITATION: PLB International Inc. v. All Pet Distributing Inc., 2013 ONSC 1027
DIVISIONAL COURT FILE NO.: Woodstock 166/11
DATE: March 5, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
PLB INTERNATIONAL INC.
Plaintiff (Respondent in Appeal)
- and -
ALL PET DISTRIBUTING INC. AND BRIAN HEDGES
Defendants (Appellants in Appeal)
COUNSEL:
Arnold H. Zweig for the respondent
James Battin for the appellants
HEARD: January 14, 2013
BEFORE: VOGELSANG J.
REASONS FOR JUDGMENT
[1] The defendants appeal from the decision of Deputy Judge A. Paul Parlee rendered August 2, 2011 following a trial at Woodstock. Deputy Judge Parlee gave extensive written reasons and found the defendants, All Pet and Hedges, liable to pay $25,000 to the plaintiff, PLB, made up of the $21,572.22 invoice price of pet food sold and delivered on or about June 10, 2009, added to a number of prior smaller unpaid accounts (which in total exceeded the $25,000 jurisdiction of the Small Claims Court).
[2] Deputy Judge Parlee dismissed the defendants’ cross-claim for the recovery of $25,000, being about $10,825 for alleged credits for returned pet food for the years 2006 and 2007 and the balance damages for PLB’s breach of an agreement made with All Pet for the return of unsold pet food after the termination of the distribution agreement on June 18, 2009.
[3] The Deputy Judge found that the provisions of the Limitations Act, 2002 S.O. 2002 c. 24, Schedule B precluded All Pet’s recovery on the credit notes. He did not accept Mr. Battin’s characterization of the invoice transaction between PLB and All Pet as a “running account or revolving account” that might not require a legal demand and subsequent refusal to pay by PLB. I think he was quite correct. In Artisan Developments Inc. v. Navarretta, 2011 ONSC 6054 (Div. Ct.), Harvison-Young J. noted that s. 5(3) of the Limitations Act, 2002, where a demand obligation is involved, starts the statutory two year period on the first day on which the obligation is not performed. She continued that policy clearly supported the avoidance of the discoverability principle in these circumstances because the alternative would lead, in the absence of a refusal, to indefinite liability. I think it quite clear that these credit notes or invoices required immediate adjustment pursuant to the apparent contractual terms governing the parties and were demand obligations.
[4] With respect to the defendants’ claim over the unreturned pet food, the Deputy Judge made clear findings of fact that PLB’s sales representative for Ontario, Mr. Walterhouse, made a statement or representation to Mr. Hedges and All Pet that PLB would take back unsold product after July 20, 2009; however, he went on to find the promise unenforceable as lacking consideration and, further, expressly found no detrimental reliance in the evidence on the part of All Pet. Dr. Waddams said as follows in The Law of Contracts, 6th ed. (Toronto: Canada Law Book, 2010) at p. 85:
A much quoted definition, adopted in … Fleming v. Bank of New Zealand, [1990] A.C. 577 (P.C.) is: “A valuable consideration in the sense of the law, may consist either in some right, interest, profit or benefit accruing to the party, or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other.
[5] On that basis, there is nothing at all to justify disturbing the findings of the Deputy Judge. The appeal is dismissed.
[6] Counsel may make submissions with respect to costs in letter form addressed to me in the care of the trial coordinator within 30 days. I want to know particulars of offers to settle, if any, and when they were made. Submissions must be brief.
“Justice Henry Vogelsang”
Justice Henry Vogelsang
Released: March 5, 2013
CITATION: PLB International Inc. v. All Pet Distributing Inc., 2013 ONSC 1027
DIVISIONAL COURT FILE NO.: Woodstock 166/11
DATE: March 5, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Vogelsang J.
BETWEEN:
PLB International Inc.
Plaintiff (Respondent in Appeal)
- and –
All Pet Distributing Inc. and Brian Hedges
Defendants (Appellants in Appeal)
REASONS FOR JUDGMENT
Released: March 5, 2013