COURT OF APPEAL FOR ONTARIO
DATE: 20000121
DOCKET: C31166
RE: GILLES MAINVILLE (Plaintiff/Defendant to
Counterclaim/ Respondent) –and– HELEN McARA
and STANLEY HOWARD(Defendants/Plaintiffs by
Counterclaim/Appellants)
BEFORE: LABROSSE, WEILER and CHARRON JJ.A.
COUNSEL: J. Christopher Arnold, for the appellants
Jean-Claude A. G‰linas, for the respondent
HEARD: January 20, 2000
On appeal from the judgment of Cusson J. dated November 9, 1998.
E N D O R S E M E N T
[1] This is an appeal from the decision of Cusson J. awarding
the respondent $78,398 in damages for breach of contract, plus
pre-judgment interest and costs.
[2] The appellants purchased a treed property as a retirement
home. They entered into a written contract with the respondent,
who operated a woodcutting operation with respect to the cutting
of trees on their property. Prior to entering into the contract
with the respondent, the appellants had allowed Domtar, a forest
products company, to come in and do a woodlot management
operation on their property. The appellants say that their
intention was to have the trees on their property thinned in a
manner akin to the Domtar project. This included cedar trees.
The respondent began clear cutting the cedar bush. When the
appellant Ms. McAra discovered that the cedars were being clear
cut, she complained to the respondent. Eventually, she ordered
the respondent off her property. The respondent sued for loss of
profit arising from the appellants’ alleged breach of contract
and was successful at trial.
[3] The trial judge was of the opinion that the contract was
clear. He heard evidence as to the custom of the trade with
respect to cutting of cedar trees to the effect that such trees
are not normally selectively cut and that to do so would have
made the venture commercially unprofitable for the respondent.
The trial judge was entitled to consider this evidence: Alampi
v. Swartz, 1964 CanLII 303 (ON CA), [1964] 1 O.R. 488. As a result, the trial judge came
to the conclusion that the words “to do selective cut” in the
opening paragraph of the contract applied only to the hardwood
and softwood trees and not to the cedar trees. The trial judge’s
interpretation is supported by the description of selective
cutting in the contract as meaning that the hardwood and softwood
trees had to be twelve inches in diameter at chest height. No
such requirement concerning twelve inch diameter was inserted in
the contract with respect to the cedar trees.
[4] In our opinion, the trial judge’s conclusion that the
written contract was clear was not unreasonable. Consequently,
he did not err in refusing to consider the parole evidence in
relation to all of the defences that the appellants sought to
raise.
[5] With respect to damages, the trial judge took a reasonable
approach that was fair to both sides and was supported by the
evidence.
[6] The appeal is dismissed with costs to the respondents fixed
in the amount of $3,000.
Signed: “J.M. Labrosse J.A.”
“K.M. Weiler J.A.”
“Louise Charron J.A.”