COURT OF APPEAL FOR ONTARIO

DATE: 20001013

DOCKET: C32524

FINLAYSON, WEILER and GOUDGE JJ.A.

BETWEEN:

CERTA EMERGENCY SERVICES INC. ) Robert G. Ackerman, for the

) plaintiff/respondent

Plaintiff )

(Respondent) )

–and– )

CANGO INC., CANGO TRANSPORT ) David Zuber, for the defendants/

INC., CANGO FUELS INC., FEDERATED ) appellants Cango Inc., Cango

INSURANCE COMPANY OF CANADA ) Transport Inc., Cango Fuels Inc.

and 925445 ONTARIO INC. ) and 925445 Ontario Inc.

Defendants )

(Appellants) )

) Heard: October 11, 2000

On appeal from the judgment of Justice Walter T. Stayshyn dated June 25, 1999.

WEILER J.A.:

[1] The appellants leased and operated a tanker truck carrying gasoline that rolled over on the Queen East West. The appellants gave the job of cleaning up the spill to the respondent. The appellants appeal the judgment of Stayshyn J. of the Ontario Court (General Division) granting the respondent $45,116.11 for the respondent’s bill for the clean up.

[2] There is no written contract between the parties. The respondent was partially successful on a motion for summary judgment. The motions judge found there was a contract under which the respondent Certa would charge its “usual rates” for “necessary” work. This finding was based on a statement in the affidavit of the respondent’s representative Ms. Foster that there was a contract at the respondent’s “usual rates”. An appeal from the summary judgment was dismissed by this court. The trial judge was required to establish what the “usual rates” were, whether the work billed was actually done and whether the work done was necessary.

[3] The day before the trial, the respondent advised the appellants that Ms. Foster had never discussed rates with the appellants. Consequently, her prior statement was inaccurate and there was no agreement between the parties as to the charges for the work to be done. At trial, the respondent’s rate sheet was produced and marked as an exhibit. While there is no issue that the rate sheet set out the “usual rates” for certain items, it did not stipulate a rate for all of the equipment and services provided. Ms. Foster testified globally that all of the rates charged, including those not on the rate sheet, are the same rates “charged to everyone”. She also testified that, while there was no agreement with respect to rates, the work had been done. The respondent submits that the rates charged were therefore fair and reasonable. The trial judge deducted approximately $5,000 from the original amount of $65,000 billed to the appellants and allowed an equitable set-off in the amount of $15,000.

[4] The set-off arose as a result of the fact that aspects of the emergency response were subcontracted out by the respondent to Phillips Environmental. The appellants paid the amount of the Phillips bill directly to Phillips. The appellants claim, however, that the respondent’s bill includes charges containing exorbitant mark-ups for the work done by Phillips. The trial judge did not specifically deal with the question of whether the mark-up on the work done by the respondent was at the respondent’s “usual rate” or, if there was no “usual rate”, whether the amounts charged were fair and reasonable.

[5] In our opinion, the evidence that came to light prior to trial should have resulted in the partial summary judgment being set aside as there was no agreement that the work was to be done at the “usual rates” of the respondent. The respondent is entitled to be paid on a quantum meruit basis. In addition, the trial judge did not deal with the question of the mark-ups for work done by others and we are of the opinion that he erred in not doing so.

[6] The appeal will therefore be allowed, the summary judgment set aside, the judgment of Stayshyn J. set aside, and a new trial ordered. Costs of the appeal are to the appellants; costs of the original trial in the discretion of the judge hearing the new trial.

Signed: “K.M. Weiler J.A.”

“I agree G.D. Finlayson J.A.”

GOUDGE J.A. (dissenting):

[7] In my view, there is no basis to set aside the summary judgment. As is often true in commercial dealings, the respondent was retained without discussion of rates with the consequence that it was entitled to charge its “usual rates” provided they were not unreasonable. As I read the trial judge’s reasons, while they undoubtedly could have been fuller and better expressed, he applied just such an analysis to the appellants’ bill and I would not interfere with his conclusion. I would have dismissed the appeal with costs.

Released: OCT 13 2000 Signed: “S.T. Goudge J.A.”

GDF