DATE: 20010530

DOCKET: C32917

COURT OF APPEAL FOR ONTARIO

RE: THE NIPISSING BOARD OF EDUCATION (Plaintiff (Appellant)) - and - ROGER DESJARDINS, CD & G TRANSPORTATION LIMITED, DIAMOND BUS LINES, 5-0 CAB, JOSEPH MARK EIGENBERGER and DOROTHY ANNE BENARD (Defendants (Respondents))

CD & G TRANSPORTATION LIMITED, DIAMOND BUS LINES, 5-0 CAB, JOSEPH MARK EIGENBERGER and DOROTHY ANNE BENARD (Plaintiffs by Counterclaim (Respondents)) and THE NIPISSING BOARD OF EDUCATION (Defendant by Counterclaim (Appellant))

BEFORE: McMURTRY, C.J.O., ABELLA and GOUDGE JJ.A.

COUNSEL: Peter C. Williams and Gaynor J. Roger

For the appellant (defendant by counterclaim)

Geoffrey B. Shaw and Jody A. McCormack

For the respondents (plaintiffs by counterclaim)

HEARD: May 23, 2001

On appeal from the judgment of the Honourable Norman M. Karam rendered on May 14, 1999, and the Reasons for Ruling on Motion released September 1, 1999, made at North Bay.

E N D O R S E M E N T

Released Orally May 23, 2001

[1] The appellant's primary submission is that the trial judge erred in applying a term of reasonable notice of non-renewal. We disagree.

[2] The trial judge considered the evidence of the 20-year relationship and the existence of any informal ongoing arrangements. In our view, given the nature of this relationship, it was reasonable for the trial judge to find an implied agreement that the appellant would notify the respondent in a timely way of an intention to terminate the agreement. We do not view the events of November 1994 to April 1995 as constituting such notice.

[3] Nor do we see any basis for interfering with the quantum award in either for the 1995-1996 years or for the 1994-1995 year. It was open to the trial judge to accept the evidence on which he based both determinations. Equally there was a reasonable evidentiary basis for the trial judge to dismiss the claim for overpayments against 5-0 Cab.

[4] Finally, we see no basis for interfering with the decision below to dismiss the claim for negligent misrepresentation of the claim to pierce the corporate veil. The appeal is dismissed with costs.

Cross-Appeal

[5] The Cross-appellant's primary submission is that the trial judge erred in finding that overpayments had been made. We disagree.

[6] The trial judge found that it was an essential term of these contracts that payment be determined by application of the formula. He accepted the evidence of the plaintiff's expert as to the amount owing due to the formula and the resulting overpayment. These findings were well supported in the evidence and entirely open to the trial judge to make.

[7] The cross-appellant also raises a number of other issues.

[8] First, it argues that the Board suffered no detriment. We disagree. In our view it is clear that the Board paid more for these services than it was contractually obliged to pay. The fact that it received provincial grants for the same general area of service does not negate that proposition. The Board therefore suffered a detriment.

[9] Second, the trial judge found that neither waiver nor estoppel applied to the Board. We can see no error in this conclusion.

[10] Third, as to the curtailing of cross-examination, we do not read the trial judge as preventing any cross-examination of Mr. Shoalts as to the meaning of the formula. We therefore can find no procedural error.

[11] Fourth, we can find no basis for the appellant's claim for four years' notice. These contracts were expressly for one year at a time. There is no room to imply a term that the contracts terminate only on reasonable notice of termination, given the express term of each contract. There is therefore no contractual foundation for the four-year notice period sought.

[12] We see no basis to interfere with the findings of the trial judge on mental distress and punitive damages.

[13] Finally as to the award of costs, in our view, the award made was entirely within the discretion of the trial judge and we are not prepared to interfere.

[14] The cross appeal is dismissed with costs.

Signed:

"R. Roy McMurtry C.J.O."

"R.S. Abella J.A."

"S.T. Goudge J.A."