Court File and Parties

DATE: 20040119

DOCKET: C38013

COURT OF APPEAL FOR ONTARIO

RE: MOFFATT & POWELL LIMITED (Respondent (Plaintiff)) – and – ARMOUR STEEL SUPPLY LIMITED (Appellant (Defendant))

BEFORE: ROSENBERG, GOUDGE and CRONK JJ.A.

COUNSEL: Robert C. Taylor for the appellant John K. Downing for the respondent

HEARD: January 9, 2004

On appeal from the judgment of Justice Lynne C. Leitch of the Superior Court of Justice dated February 28, 2002.

ENDORSEMENT

[1] Although the appellant’s submissions were framed in terms of errors of law, fundamentally, the appellant argues that the trial judge misapprehended the evidence. The alleged misapprehension of evidence relates, in particular, to whether the appellant was told that the building was not to involve post and beam construction and whether the draft plans produced by the appellant’s engineer were consistent with the understanding of the parties. In our view, the trial judge did not misapprehend the evidence on these two issues or the other matters argued by the appellant.

[2] There was evidence, especially from Mr. Bice, from which the trial judge could find that the appellant knew that the building was not to include post and beam construction and any structural steel. The appellant’s own quote is entirely inconsistent with the theory that a post and beam construction would have been acceptable. We therefore cannot accept the appellant’s principal submission that the parties were never ad idem on the fundamental terms of the contract.

[3] We are also satisfied that it was open to the trial judge to find that the appellant breached the contract. Mr. Maodus’s evidence was that he felt entitled to unilaterally change the design and he produced drawings accordingly. The appellant’s delivery of draft drawings employing post and beam construction rather than using the construction technique contracted for was a breach of contract. We agree with the trial judge that the “subject to” clause was not a true condition precedent.

[4] Finally, we agree with the trial judge’s determination of the measure of damages. The damages were not limited to the difference between the fees charged by Mr. Maodus and those charged by Mr. Lapin. The appellant was entitled to be put in the position it would have been had the appellant not breached the contract. There was no suggestion that the respondent did not properly mitigate its damages.

[5] Accordingly, the appeal is dismissed with costs fixed at $15,000 inclusive of disbursements and G.S.T.

Signed: “M. Rosenberg J.A.” “S. T. Goudge J.A.” “E.A. Cronk J.A.”