DATE: 20050314

DOCKET: C39736

COURT OF APPEAL FOR ONTARIO

RE:

ATTORNEY GENERAL OF CANADA (Plaintiff/Respondent) – and – ZURICH INDEMNITY COMPANY OF CANADA (Defendant/Appellant)

BEFORE:

McMURTRY C.J.O., ARMSTRONG and LANG JJ.A.

COUNSEL:

Steven Stieber and Michelle Brodey

for the appellant

P. Christopher Parke

for the respondent

HEARD & RELEASED ORALLY:

March 7, 2005

On appeal from judgment of Justice Donald R. Cameron of the Superior Court of Justice dated February 24, 2003.

E N D O R S E M E N T

[1] In our view, the trial judge, made no palpable or overriding error in his factual findings and was correct on the legal principles.

[2] While the bond itself required the Canada Customs and Revenue Agency (“C.C.R.A.”) to produce “relevant documentation to substantiate the claim”, that provision must be interpreted subject to section 107 of the Customs Act, R.S.C. 1985, (2nd Suppl.) C.1. That section precludes C.C.R.A. disclosure of the names of the importers to the surety unless the surety can rely on the section 108(1)(c) exception permitting disclosure to “any person otherwise legally entitled thereto”. The surety was not so entitled. See Johns Manville International, Inc. v. Deputy Minister of National Revenue, 1999 9298 (FC), [1999] 3 F.C. 95, (T.D.).

[3] Further, in our view, the production of the summaries and the dishonoured cheque was sufficient to satisfy the bond’s requirements for disclosure of relevant substantiating documentation. In particular, MI-DA’s presentation of a cheque in payment of the C.C.R.A. invoice was relevant documentation acknowledging its obligation to pay that invoice.

[4] In addition, we see no basis to overturn the trial judge’s finding that the C.C.R.A. had taken all steps required by the terms of the bond in notifying MI-DA of the default and in its efforts to recover the amounts owing.

[5] We do agree that the trial judge erred in calculating interest on the amount of $300,000 when it should have been calculated on $290,838.75. We would vary paragraph one of the judgment accordingly and leave to counsel the appropriate calculation of the total amount owing.

[6] The appeal is otherwise dismissed. Costs to the respondent fixed at $7,000 inclusive of disbursements and GST.

“Roy McMurtry C.J.O.”

“Robert P. Armstrong J.A.”

“Susan E. Lang J.A.”