COURT OF APPEAL FOR ONTARIO

DATE: 2003-04-16

DOCKET: C36521

RE: CONTINENTAL TOOL & DIE INC. (Plaintiff (Respondent)) – and – McBRIDE METAL FABRICATING CORPORATION (Defendant (Appellant))

BEFORE: WEILER, ABELLA and ARMSTRONG JJ.A.

COUNSEL: John Leslie and Matt Todd for the respondent Rodney M. Godard for the appellant

HEARD: April 16, 2003

On appeal from the judgment of the Honourable Mr. Justice Terrence Patterson dated May 18, 2001.

APPEAL BOOK ENDORSEMENT

[1] In our view, the trial judge’s finding of fact and the legal conclusions he reached based on those findings are, with respect, inconsistent. In particular, he concluded, as he was entitled to do based on the evidence introduced during 2 days of trial, that Continental did not complete the work on Jobs 467, 468 and 470 in a timely way. This amounted to a finding that Continental breached the contract, which in turn entitles McBride to damages for that breach, subject to its duty to mitigate. Moreover, based on the evidence, the trial judge erred in concluding that McBride was not entitled to be compensated for the purchase of three new tools.

[2] The damages to McBride properly include, therefore, $311,905.00 for the cost of the new tools, and 85% of the total costs of $34,678.00 for the laser cut parts for Jobs 467 and 468 and 82% of Job 470. We see no basis for interfering with the award to Continental of compression costs.

[3] The appeal is allowed, and the trial judge’s order varied in accordance with these reasons. Costs of the appeal to the appellant in the total amount of $15,000. No costs of the trial.