Court File and Parties

CITATION: Super Save Disposal (Ontario) Inc. v. Grace’s Patty World Inc., 2018 ONSC 5847

DIVISIONAL COURT FILE NO.: 650/17 DATE: 2018/10/01

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

SUPER SAVE DISPOSAL (ONTARIO) INC. Appellant (Plaintiff)

– and –

GRACE’S PATTY WORLD INC. Respondent

Counsel: William F. Kelly, for the Appellant (Plaintiff) Karanpaul S. Randhawa, for the Respondent

HEARD at Toronto: October 1, 2018

BEFORE: MYERS J. (Orally)

Oral Reasons for Judgment

[1] The Appellant strenuously objects to the Small Claims Court judge’s finding that its liquidated damages clause is a penalty. But the key holding of the case is that the contract never came into force. This was a finding of fact based on credibility. There is no basis to challenge that finding. It is entitled to deference. There is no suggestion that the judge made an error let alone a palpable and overriding error. As the contract never commenced, the liquidated damages clause never applied. The judge’s finding that the clause is a penalty is obiter or extra.

[2] An appeal is from the judgment and not the reasons. The judgment is correct regardless of the liquidated damages/penalty finding. I make no decision on that issue apart from noting that as a court of equity and good conscience a Small Claims Court is not necessarily bound by the most technical application of the law of liquidated damages/penalty in assessing the justice of the case before it.

[3] The plaintiff asks the Court for guidance as the state of the law on penalties in Ontario. It cites many cases in its factum and brief of authorities. It is not the law that provides the uncertainty felt by the plaintiff but rather the fact that Small Claims Court judges have found its clause to produce inequitable results on specific facts so that they could not or would not enforce the clause in good conscience in those cases.

[4] Costs fixed, on consent, payable by the Appellant to the Respondent in the amount of $2,500.00.

F.L. Myers J.

Date of Reasons for Judgment: October 1, 2018

Date of Release: October 2, 2018

CITATION: Super Save Disposal (Ontario) Inc. v. Grace’s Patty World Inc., 2018 ONSC 5847

DIVISIONAL COURT FILE NO.: 650/17 DATE: 2018/10/01

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

SUPER SAVE DISPOSAL (ONTARIO) INC. Appellant (Plaintiff)

– and –

GRACE’S PATTY WORLD INC. Respondent

ORAL REASONS FOR JUDGMENT

MYERS J.

Date of Reasons for Judgment: October 1, 2018

Date of Release: October 2, 2018