Court of Appeal for Ontario

Fisher v. Martin

Date: 2000-02-07

Terrence R. Shillington and D. Wallace, for the defendant/appellant, The Guarantee Company of North America;

J.F. O'Brien, for the plaintiff/respondent.

(C30083)

[1] By the Court [orally]: The appellant, The Guarantee Company of North America, submitted that the single issue on this appeal was whether or not the terms contained in the letter of July 17, 1989 gave rise to a valid and enforceable agreement. The appellant submitted that, in law, no agreement had been reached in the letter of July 17, 1989.

[2] In our opinion, the trial judge did not simply rely on the letter of July 17, 1989 in coming to his conclusion that there was a valid and enforceable agreement. He relied on the evidence of Mr. Lane, the agent of the appellant, who, in cross-examination, agreed that the letter evidenced an agreement. There was evidence to support the trial judge's finding on the facts and we would not interfere with his conclusion in law that there was a valid and enforceable agreement between the appellant and the respondent.

[3] The appellant also submitted that, in the event an agreement had been made, the respondent was required to bring an action by October 6, 1992. The appellant, in its letter of September 25th, 1991, indicated that it would no longer be bound by the agreement. The trial judge held that the letter of September 25, 1991 was a repudiation of the agreement.

[4] The effect of a repudiation depends on whether the injured party treats the contract as being in full force and effect or accepts the repudiation. In this case, the respondent did not accept the repudiation of the agreement and thus was not obliged to institute legal proceedings by October 6, 1992.

[5] Accordingly, the appeal is dismissed with costs.

Appeal dismissed.