DATE: 2004-12-16

DOCKET: C40397

COURT OF APPEAL FOR ONTARIO

RE:

DUNLAW LIFE INSURANCE AGENCY LTD. and AUTOTURBO INC. (Respondents (Plaintiffs)) – and – THE CITADEL LIFE ASSURANCE COMPANY, THE CITADEL GENERAL ASSURANCE COMPANY, F & I SYSTEMS INC., JOHN INGRAO, F & I INSURANCE AGENCIES LIMITED, DANIEL JOHN SCOPICK ND SCOPICK INSURANCE AGENCY LIMITED (Appellants (Citadel Life and Citadel General) (Defendants))

BEFORE:

McMURTRY C.J.O., GOUDGE AND BLAIR JJ.A.

COUNSEL:

Geoffrey D.E. Adair, Q.C.

for the appellant

Ronald Carr

for the respondent

HEARD & RELEASED ORALLY:

December 9, 2004

On appeal from the judgment of Justice Jean MacFarland of the Superior Court of Justice dated June 25, 2003.

E N D O R S E M E N T

[1] The appellant does not contest that it had a binding contract with Autoturbo. However, it says that because it was not told of the true relationship between Messrs. Ingrao and Zeran and because of the contract’s nonexclusive provisions, it did not have to perform its contractual obligations in good faith during the notice period of the contract.

[2] We disagree. The appellant does not say that the failure to tell it about the true relationship between these two gentlemen has an impact on their contractual obligation to the respondent. Thus, its contractual obligation to perform remained in effect, and precluded it from acting in a way that eviscerated or defeated the objectives of its agreement. That is precisely what the trial judge found it did. There was ample evidence to support that finding. Nor do the nonexclusive provisions of the contract authorize the appellant to help Mr. Ingrao in obtaining a broker’s licence and to otherwise assist him in taking the respondent’s business away. We agree with the trial judge that by doing so Citadel breached its contract with the respondent. This ground of appeal fails.

[3] The appellant also argues that there was no sufficient proof of damages. We cannot give effect to this argument for the simple reason that the weight to be given to the evidence before her on damages was for the trial judge. It is not for us, absent palpable and overriding error. Here it is not the case that there was no evidence to support the damages award. There was, some evidence, and it was quite open to the trial judge to use it to make the best assessment of damages that she could. This ground of appeal must also fail.

[4] As to the cross-appeal, the trial judge did not overlook the figures for May 1988. She found, in her assessment of all the evidence, that it was more reasonable to stop her averaging calculation at April. This is not a finding open to review in this court.

[5] Secondly, the trial judge dismissed the conspiracy claim because she was not persuaded that the appellant’s conduct was directed towards the respondent. This finding was open to her on the evidence and cannot be interfered with in this court.

[6] The appeal and the cross-appeal are both dismissed. Costs to the respondent of $12,000 all inclusive.

“R. Roy McMurtry C.J.O.”

“S.T. Goudge J.A.”

“R.A. Blair J.A.”