DATE: 20020115
DOCKETS: M28102 and C33552

COURT OF APPEAL FOR ONTARIO

RE:

JUMBO SYSTEMS INC. and 1053585 ONTARIO INC. (Plaintiffs/ Defendants by Counterclaim/Respondent) –and– JOHN SHORT, FRED SHORT and ROBERT SHORT (Defendants/Plaintiffs by Counterclaim/Appellants)

BEFORE:

CARTHY, WEILER and AUSTIN JJ.A.

COUNSEL:

Grace Pang, for the appellant

A. Irvin Schein, for the respondent

HEARD:

January 8, 2002

On appeal from the judgment of Justice Paul U. Rivard dated January 13, 2000.

E N D O R S E M E N T

[1] The appellants submit that the doctrine of waiver was not pleaded and that the trial judge erred in concluding that the appellants waived their right to sue for damages arising out of a secret $50,000 payment received by the respondent.

[2] Notwithstanding the apparent unfairness to the appellants from the omission to plead waiver, the trial judge’s comments prior to argument alerted the appellants to the fact that they may not succeed in their defence and counterclaim because the corporate appellant subsequently made an arrangement that implicitly affirmed the continuation of the agreement. No objection was raised by the appellants’ counsel and submissions were made on the question.

[3] At the hearing of this appeal, the appellants submitted that, had the matter been properly pleaded, the evidence at trial would have been more fully developed on this issue. In these circumstances, the only appropriate remedy that the appellants could request was a new trial and this was not requested. On the whole of the evidence, it appears that the appellants tolerated the circumstances of which complaint is now made for some three years.

[4] In our opinion, there has been no substantial wrong or miscarriage of justice and the appeal is therefore dismissed together with the motion to amend the pleadings on appeal to plead waiver. Costs of the appeal to the respondent.

Signed: “J.J. Carthy J.A.”

“K.M. Weiler J.A.”

“Austin J.A.”