CITATION: 7112751 Canada Inc. v. Grand Experience Canoe & Kayak Outfitter, 2013 ONSC 7081
DIVISIONAL COURT FILE NO.: CV-13-34
DATE: 2013/11/15
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Arrell, J.
BETWEEN:
7112751 Canada Inc. doing business as Kayak Distribution
Plaintiff (Respondent in Appeal)
- and -
Grand Experience Canoe & Kayak Outfitter
Defendant (Appellant in Appeal)
HEARD: November 7, 2013
JUDGMENT
Introduction:
[1] The defendant appeals from the judgment of Deputy Judge Miller dated December 28, 2012.
Facts:
[2] The defendant is in the business of selling and renting kayaks and other non-motorized water craft. It has been in business since 1997, and is quite experienced in its line of work. The defendant had placed an order in September 2008 for a number of kayaks with Voodoo Technologies carrying on business as Riot, a manufacturer of kayaks. A term of the contract called for delivery no later than April 1, 2009. The sales agent for Riot was Mr. Schreiner.
[3] Riot went bankrupt in January 2009. One of the owners of Voodoo and Riot was Mr. Pelland. He then started the plaintiff company and employed Mr. Schreiner.
[4] The plaintiff had its kayaks manufactured in China. There appears to be some conflict in the evidence as to whether this was a change from where Riot had manufactured its Kayaks. In my view nothing turns on that fact for the purposes of this appeal. Likewise there is some conflict as to whether the defendant knew Riot had gone bankrupt. That fact is also of no significance for the purpose of this appeal.
[5] Near the end of April 2009, well past the delivery date which had been a condition of the defendant accepting the kayaks, it was informed by Schreiner that the kayaks previously ordered through Riot were available for pick up.
[6] The defendant elected to pick up the kayaks. Some were unwrapped and visible and others wrapped.
[7] The defendant took all of the kayaks it had ordered. The defendant alleges that it immediately noticed defects. It returned none of the kayaks but instead used them for the season and ultimately disposed of them in some manner.
[8] The defendant claims that solely because of the numerous defects it lost a great deal of money in the 2009 season. It further alleges it was somehow tricked into taking the kayaks by the plaintiff. It further argues that it owes the plaintiff nothing for the kayaks because they were totally unfit for the purpose for which they were sold to the defendant pursuant to the Sale of Goods Act.
[9] It is significant that part way through the 2009 season the defendant accepted additional kayaks from the plaintiff even though it alleges the first shipment was totally defective.
Position of the Parties:
[10] The plaintiff says that the delivery date of April 1 had expired and the defendant was under no obligation to accept the kayaks. They were offered, they were available for inspection, the defendant is very experienced with kayaks and accepted the order. Upon accepting the order the defendant completed the contract. It used the kayaks and did not return them. It ultimately disposed of them. Simply put the plaintiff argues the defendant accepted the product and did not return it and should therefore pay for it.
[11] The defendant argues it was desperate for kayaks and had no choice but to accept what was offered. It tried to make do with the defective product with numerous repairs but ultimately it was a money losing season because of these defective kayaks which were unfit for the purpose for which they were sold and therefore the defendant should not have to pay for them.
Analysis:
[12] The learned trial judge found as a fact that the plaintiff sold kayaks to the defendant. He therefore, found there was a contract of purchase and sale. He further found there were defects to some of the kayaks, but not all. He also found as a fact that because of these defects the defendant did indeed lose some money but also found that the kayaks were somewhat useable and there was some economic benefit to the defendant.
[13] It is clear, from a review of the evidence, that these were findings of fact available to the learned trial judge.
[14] The learned trial judge also rejected the evidence of the defendant as to the amount of his loss due solely to the defects in a number of the kayaks. He accepted that a $14,000 loss had been incurred, as a result of the defective product sold by the plaintiff. Again, the evidence was clearly available for him to accept this version of the defendant’s economic loss because of the defective kayaks.
[15] Finally the learned trial judge found that the unpaid balance on the kayaks was $21,877.00 a finding that was clearly available to him on the evidence. He allowed the defendants loss and found for the plaintiff being the amount owing less the loss for a judgment of $7,877.00.
[16] The essence of the appeal by the defendant is that the learned trial judge made errors in his findings of fact. For example he erred in finding an economic loss of only $14,000.00 when it should have been much more; he erred in not finding the kayaks totally unfit for the purpose for which they were sold; he erred in finding there was a contract.
[17] The Supreme Court of Canada in Hausen v. Nikolaisen (2002) 1 S.C.C. 33 has made it abundantly clear at para. 10 that the standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a palpable and overriding error.
[18] The Supreme Court of Canada further stated in Hausen, supra, at para. 10 that:
“The trial judge is better suited to make factual findings owing to his other extensive exposure to the evidence, the advantage of hearing testimony viva voce and the judge’s familiarity with the case as a whole. Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected.”
“A court of Appeal is clearly not entitled to interfere merely because it takes a different view of the evidence. The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal”.
Tonequzzo-Norvell v. Burnaby Hospital, 1994 106 (SCC), [1994] 1 S.C.R. 114 at page 121.
“This deference is principally grounded in the recognition that only the trial judge enjoys the opportunity to observe witnesses and to hear testimony first-hand, and is therefore better able to choose between competing versions of events”.
Schwartz v. R., 1996 217 (SCC), [1996] 1 S.C.R. 254 at para. 26
[19] The reasons of the trial judge must be sufficient to explain what he decided and why he made the decision. They should be read as a whole in the context of the evidence and arguments at trial. The object is not to show how the judge arrived at his conclusion in a “watch me think” fashion. What is required is a logical connection between the what-the judgment-and the why-the basis for the judgment.
R. v. R.E.M. [2008] S.C.R. No. 52
Conclusion:
[20] The learned trial judge, in this case, heard all of the witnesses and their cross-examination. He reviewed the various documents filed. He heard the submissions of the parties. He concluded there was a contract when the defendant accepted the kayaks and never returned them. The evidence to reach such a conclusion was clearly before him.
[21] The learned trial judge further concluded there were defects to some of the kayaks that would substantiate a reduction in the amount owing. He concluded that reduction should be $14,000.00 based on the loses that he accepted were proved by the defendant. There was ample evidence to allow him to reach that conclusion.
[22] The learned trial judge acknowledged partial payment had been made by the defendant and gave it credit for that amount as well as the proven loss of economic benefit of $14,000.00.
[23] The defendant has not persuaded me that there was any palpable and overriding error by the learned trial judge in finding the facts that he did based on all of the evidence he had received.
[24] The appeal therefore must be dismissed and the judgment confirmed in the amount of $7,877.00 plus costs of $500.00 plus disbursements, payable by the defendant to the plaintiff forthwith along with post judgment interest from the date of the judgment.
[25] The plaintiff is entitled to costs for this appeal which I fix at $1,000.00 plus assessable disbursements and applicable taxes payable by the defendant forthwith.
ARRELL, J.
Released: November 15, 2013
CITATION: 7112751 Canada Inc. v. Grand Experience Canoe & Kayak Outfitter, 2013 ONSC 7081
DIVISIONAL COURT FILE NO.: CV-13-34
DATE: 2013/11/15
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ARRELL, J.
BETWEEN:
7112751 Canada Inc. doing business as Kayak Distribution
Plaintiff (Respondent in Appeal)
- and –
Grand Experience Canoe & Kayak Outfitter
Defendant (Appellant in Appeal)
REASONS FOR JUDGMENT
Released: November 15, 2013