COURT OF APPEAL FOR ONTARIO

DATE: 20050912

DOCKET: C40555

RE: BAUSCH & LOMB CANADA INC. (Plaintiff/Defendant to the Counterclaim/Respondent) – and – ALLIED VISIONCARE PRODUCTS INC. (Defendant/Plaintiff by Counterclaim/ Appellant)

BEFORE: LASKIN, SHARPE and JURIANSZ JJ.A.

COUNSEL: James P. McReynolds for the appellant Douglas Langley for the respondent

HEARD & RELEASED ORALLY: August 31, 2005

On appeal from the order of Justice Nancy Backhouse of the Superior Court of Justice dated August 1, 2003.

E N D O R S E M E N T

[1] The appellant appeals from the judgment of Backhouse J. dated August 1, 2003, granting the respondent judgment in the amount of $143,755 plus costs and interest calculated at 18% per annum.

[2] Counsel for the appellant relied on a printout of an email prepared by the respondent to argue that it did not receive a credit of $30,000 which he said was pending in April 1999. His argument ignored evidence that the date on the document was the date it was printed and not the date it was prepared. Nor were we persuaded that evidence established the parties’ usual practice was that the appellant received rebates even when its account was overdue. Counsel for the appellant cited one example where rebates were processed but ignored testimony of a witness of the respondent who explained that on that occasion, he had been promised full payment of the outstanding account and so had processed rebates.

[3] It follows that the evidence strongly supported the trial judge’s finding that the appellant was in default and that the respondent was entitled to terminate the agreement.

[4] The trial judge resolved conflicting evidence regarding the terms of the September 1, 1999 agreement between the parties in favour of the respondent. We are satisfied that the hearsay evidence she cited was not important to that conclusion.

[5] There was evidence to support the trial judge’s finding that the applicable rate of interest on outstanding invoiced amounts was 18%.

[6] The appeal is dismissed.

[7] Costs on a partial indemnity scale in favour of the respondent are fixed in the amount of $12,500 inclusive of GST and disbursement.

“J.I. Laskin J.A.”

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”