DATE: 20041224

DOCKET: C39643

COURT OF APPEAL FOR ONTARIO

RE:

SALEX TECHNICAL PRODUCTS LTD. (Plaintiff/Respondent) – and – N.S.I. HOLDINGS INC. (Defendant/Appellant)

BEFORE:

LASKIN, ROSENBERG and LAFORME JJ.A.

COUNSEL:

Catherine M. Patterson

for the appellant

Robert J. Horst and Domenico Magisano

for the respondent

HEARD & ENDORSED:

December 23, 2004

On appeal from the judgment of Justice W. J. Lloyd Brennan of the Superior Court of Justice dated February 3, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant raises three issues:

(1) It seeks to reduce the amount it was ordered to pay for commissions by 50 per cent on the ground that the respondent’s sales personnel would be entitled to that amount. We do not agree with this position. This was not a claim for loss of profits, it was a claim for unpaid commissions. Any allocation of the commissions between the respondent and its sales forces does not affect the appellant’s obligation to pay.

(2) The appellant also seeks a reduction of the damages for the use of its computer. We also reject this submission. The respondent paid for the use of the computer during the time that the sales giving rise to the commissions were generated.

(3) Finally, the appellant contends that, in awarding damages on account of the Infranor contract, the trial judge erred in failing to apply paragraph 11(A) of the contract. The appellant argues that none of the Infranor products for which commissions were claimed ($16,000) had been accepted or acknowledged by Infranor before the date of termination. The evidence is admittedly unclear but we are satisfied that the trial judge’s conclusion was open to him on the record. Exhibit 5 at trial showed commissions on orders obtained before termination. Impliedly at least, Lithonia may be said to have accepted or acknowledged these orders. If it was taking a different position it ought have led evidence to that effect. It did not do so. We therefore do not accept the appellant’s argument on the Infranor contract.

[2] Accordingly, the appeal is dismissed with costs on a partial indemnity basis fixed at $10,000, inclusive of disbursements and GST.