DATE: 20051201
DOCKET: C42152
COURT OF APPEAL FOR ONTARIO
GOUDGE, SIMMONS AND ROULEAU JJ.A.
B E T W E E N :
TRI-CO PRINTING INC.
Plaintiff (Respondent)
- and -
JOHN D. PATERSON AND ASSOCIATES LTD.
Defendant (Appellant)
Counsel: J. Stephen Cavanagh for the appellant Adrian T. Hewitt, Q.C. for the respondent
Heard: November 10, 2005
On appeal from the judgment of Justice Roydon J. Kealey of the Superior Court of Justice dated June 10, 2004.
BY THE COURT:
[1] The trial judge found that the appellant breached its contract with the respondent causing the respondent to be unable to start using its new printing press until the end of May 1999, about one month later than it had contracted for.
[2] He fixed the respondent’s damages for the lost profits it would have made, had it been able to use the new press in May of 1999, at $85,000.
[3] The appellant appeals this damage award, arguing that it was without evidentiary foundation and that the trial judge erred in admitting the evidence on damages of Michael Simpson without qualifying him as an expert.
[4] We cannot agree that either submission supports a finding of reversible error.
[5] The trial judge found that the new press was 40% to 50% faster and more efficient than its predecessor and that the respondent suffered a loss because of the delay in its installation. The appellant does not contest the first finding.
[6] The second finding is also unassailable. There was ample evidence to sustain it: evidence that the respondent was turning away work that this extra capacity would have allowed it to do; evidence that the respondent was limited in its ability to solicit additional work without this extra capacity, a constraint which would not have been there in May 1999 with timely delivery; and evidence that the new press would have allowed the jobs actually done in that month to be done more efficiently.
[7] The trial judge quantified the respondent’s loss for May 1999 by discounting Mr. Simpson’s figure of $206,500.00 as too high in the circumstances. Mr. Simpson had calculated the figure using the respondent’s financial data for the several years preceeding that month as well as several months following it.
[8] While the trial judge’s explanation of the steps in the reasoning process that led him to $85,000 leaves considerable to be desired, in the circumstances we are not prepared to set it aside and dismiss the damage claim or order a new trial on damages.
[9] The respondent clearly suffered a loss of some significance. The nature of that loss necessarily made its precise quantification difficult if not impossible. It required not merely an assessment of what did happen in May 1999, but what would have happened had the press been delivered on time. The assessment therefore necessarily entails a consideration of what might have been, a task of some uncertainty in these circumstances. This is not a case where there was clear evidence of a quantum of loss that was available but not called by the respondent. Here the facts provided by Mr. Simpson, which he drew from the respondent’s recent financial data, provide a basis for the trial judge’s conclusion sufficient to make it not mere guesswork. He took those facts, and Mr. Simpson’s calculations based on them, explained why he considered the $206,500.00 figure to be high and then discounted it to reach his conclusion. We would not interfere with it.
[10] The appellant’s first argument therefore must fail.
[11] We agree that it would have been preferable had the trial judge qualified Mr. Simpson to give expert evidence. Although Mr. Simpson had been the respondent’s accountant for over 10 years and much of his evidence was simply fact evidence derived from his examination of the books and records of the respondent and from performing arithmetic calculations, his evidence may have crossed the line into opinion when he made various judgment calls in estimating the respondent’s loss of profits.
[12] However, apart from the issue of lack of neutrality, the appellant concedes that Mr. Simpson was qualified to give opinion evidence concerning the respondent’s loss. While there may be limited circumstances in which an otherwise qualified expert would not be permitted to give expert evidence because of lack of neutrality (rather than have the weight given to their evidence diminished), in our view, this is not such a case. Mr. Simpson’s long association with the respondent made him the ideal person to give the fact evidence that formed the underpinning of the lost profits calculation. To the extent that Mr. Simpson’s evidence may have crossed the line into opinion, it did not duplicate the evidence of other witnesses and the trial judge took account of its frailties in assessing its weight. In the circumstances, we are not persuaded that admitting Mr. Simpson’s opinion evidence amounted to reversible error.
[13] The appeal must therefore be dismissed.
[14] The respondent did not pursue its cross-appeal and it too is dismissed.
[15] Costs to the respondent fixed at $10,000 inclusive of disbursements and G.S.T.
RELEASED: December 1, 2005 “STG”
“S.T. Goudge J.A.”
“Janet Simmons J.A.”
“Paul Rouleau J.A.”