DATE: 20050303

DOCKET: C40630

COURT OF APPEAL FOR ONTARIO

RE:

OurPLANE INC. (Plaintiff (Appellant on Appeal)) – and – CANCORP GROUP LTD. (Defendant (Respondent on Appeal))

BEFORE:

SIMMONS, GILLESE AND LAFORME JJ.A.

COUNSEL:

Ronald G. Chapman

for the appellant

Domenico Magisano

for the respondent

HEARD & RELEASED ORALLY:

March 1, 2005

On appeal from the judgment of Justice Russell Juriansz of the Superior Court of Justice dated August 26, 2003.

E N D O R S E M E N T

[1] OurPlane Inc. appeals from a judgment of Juriansz J. dismissing its claim against Cancorp Group Ltd. for breach of an agency agreement, negligent misrepresentation and breach of contract.

[2] In dismissing OurPlane’s claim the trial judge made several significant findings:

(1) there was no agency agreement between the appellant and Cancorp;

(2) the appellant failed to establish reasonable reliance on a statement by the principal of Cancorp that the rate of interest was in the range of 12%; and

(3) because there was no agency relationship between Cancorp and OurPlane, Cancorp was under no duty to advise OurPlane of the commission being changed by the breach.

[3] Given that, in our view, there was evidence capable of supporting the trial judge’s findings, the appellant has not established that the trial judge made any error in making them.

[4] Further, we reject the appellant’s claim that the respondent failed to plead lack of reliance. The appellant pleaded reliance at paragraph 9 of its statement of claim. At paragraph 2 of its statement of defence, the respondent denied that pleading. Moreover, there was adequate cross-examination relating to reliance to permit the trial judge’s conclusions.

“Janet Simmons J.A.”

“E.E. Gillese J.A.”

“H.S. LaForme J.A.”