DATE: 20001020

DOCKET: C32092

COURT OF APPEAL FOR ONTARIO

RE: WITTNAUER INTERNATIONAL (Plaintiff/Appellant)

v. FEDERAL EXPRESS CANADA LTD. (Defendant/Respondent)

BEFORE: OSBORNE A.C.J.O., LABROSSE and DOHERTY JJ.A.

COUNSEL: Louis Frapporti,

for the appellant

George J. Karayannides and M. Christopher Diamond,

for the respondent

HEARD: October 18, 2000

On appeal from the judgment of Justice Nick Borkovich dated April 13, 1999

E N D O R S E M E N T

[1] The appellant (“Wittnauer”) appeals the dismissal of its claim against the respondent (“Fedex”) for the value of part of a shipment of watches which Fedex, for consideration, undertook to deliver in the Bahamas to Hillside Investments Company Ltd. (“Hillside”). Part of the shipment was seized by the Bahamian authorities as a result of the incorrect completion of customs documentation.

[2] The agreement between the parties provided that Fedex’s services included the obligation to obtain customs clearance.

[1] It is conceded that Wittnauer was not in any way responsible for the loss. Fedex mistakenly forwarded incomplete documentation with the shipment to Hillside and left it to Hillside to obtain customs clearance. The trial judge correctly found that Fedex was in breach of its contract with Wittnauer as it failed to provide all necessary documentation to Hillside for the purpose of customs clearance. However, the trial judge concluded that it was the ultimate negligence of Hillside, “a third party”, that was responsible for the loss.

[2] Fedex did not simply breach its contract because it failed to provide all necessary documentation for customs clearance. More importantly, it also breached the contract by failing to deliver the shipment to Hillside, with customs clearance, at its business address. For the purpose of customs clearance, Hillside was the agent of Fedex and Fedex is responsible for the negligence that caused the resulting damages.

[3] Fedex does not rely upon the exclusionary provisions in the agreement.

[4] The issue relating to the admissibility of affidavit evidence was abandoned.

[5] The appeal is allowed. Wittnauer will recover judgment for the amount of its claim together with pre-judgment interest and the cost of the trial. Wittnauer is also entitled to its costs of the appeal. An order shall be made in terms of paragraph (b) of the prayer for relief in the respondent’s factum.

(signed) “C. A. Osborne ACJO”

(signed) “J. M. Labrosse J.A.”

(signed) “Doherty J.A.”