DATE: 20030313

DOCKET: C37747

COURT OF APPEAL FOR ONTARIO

RE: UNIQUE TOOL & GAUGE INC. (Plaintiff/Respondent) ‑ and ‑ IMPACT TOOL & MOULD INC. (Defendant/Appellant)

BEFORE: WEILER, MACPHERSON AND SIMMONS JJ.A.

COUNSEL: John R. Mill for the appellant Jeffrey A. Kaufman for the respondent

HEARD: March 10, 2003

On appeal from the order of Justice Gordon I. Thomson of the Superior Court of Justice dated January 17, 2002.

E N D O R S E M E N T

Released Orally: March 10, 2003

[1] The respondent, Unique Tool and Gauge Inc. (“Unique”), entered into a contract with the appellant, Impact Tool and Mould Inc. (“Impact”), pursuant to which Unique agreed to manufacture four moulds for Impact. Impact failed to pay the contract price for the moulds and Unique brought an action for the unpaid price and for damages for breach of contract.

[2] After a 20 day trial, Thomson J. held that Impact had repudiated the contract by its non‑payment and that Unique was entitled to the unpaid price under the Sale of Goods Act and to damages for breach of contract equal in amount to the unpaid price.

[1] The appellant appeals on several grounds. We see no merit in any of them except for the ground relating to the 5 per cent discount in the contract price occasioned by the fact that the order was for a package of four moulds.

[2] Much of the appellant’s appeal invites this court to overturn the factual findings of the trial judge. We see no basis for doing this. The trial judge delivered comprehensive and careful reasons. He made clear findings relating to the credibility of the principal witnesses and he carefully analyzed the documentary record, especially the written contract, and the testimony of various witnesses before reaching his conclusions. Specifically, we can see no basis for interfering with his conclusions that payment was due as set out in the contract which said nothing about invoices, that delivery of the moulds was not a pre‑condition to payment, that Unique was entitled to withhold the moulds in the face of Impact’s non‑payment, and that Unique was entitled to insist on C.O.D. payments after Impact had failed twice to make payments required by the contract.

[3] On the 5 per cent discount issue, we are of the view that the trial judge misread the clear words of the contract. In all other respects, the trial judge relied, correctly, on the words of the contract as controlling his resolution of the issues. In our view, it is clear that the contract agreed upon by Impact was for a total price of $468,112.50 which comprised a base price of $492,750 “less 5%”. Nothing in the contract linked the discount to payment. We do not see how Impact’s breach of the contract can give rise to an obligation to pay more than the stipulated contract price which specifically included a 5 per cent discount.

[4] The appeal is allowed on the issue of the 5 per cent discount in the contract price. In all other respects, the appeal is dismissed. Costs of the appeal to the respondent fixed in the amount of $20,000 inclusive of disbursements and GST.

“K. M. Weiler J.A.”

“J. C. MacPherson J.A.”

“Janet M. Simmons J.A.”