COURT OF APPEAL FOR ONTARIO
DATE: 20050324
DOCKET: C40512
RE: INNO-VITE INCORPORATED (Plaintiff (Respondent)) – and – DAVID ROWLAND, DE WIT TRADING CO. INC., CREATIVE NUTRITION CANADA CORP., THEO PYPKER, TIMBERGREEN MARKETING LIMITED, GERARD GERVAIS, MAXION NUTRITION CORPORATION and BRIAN BYLSMA (Defendants (Appellants))
BEFORE: GOUDGE, FELDMAN AND BLAIR JJ.A.
COUNSEL: Richard J. Mazar for the appellant Nina Perfetto and Lonny Rosen for the respondent
HEARD & RELEASED ORALLY: March 15, 2005
On appeal from the judgment of Justice Lloyd Brennan of the Superior Court of Justice dated July 16, 2003.
E N D O R S E M E N T
[1] The appellant concedes both the corporate breach of the distribution agreement and the one year notice period.
[2] However, in our view, the trial judge erred in finding Dr. Rowland personally liable for breach of contract. The trial judge makes no finding that Dr. Rowland was acting outside the scope of his authority, or for his own rather than the company’s benefit, nor does there appear to have been any evidence to support such a finding. The order against Dr. Rowland must be set aside.
[3] As to damages, the trial judge erred in awarding mitigation costs to be incurred after the notice period expired. Moreover the financial statements, which are the main basis for the expert opinion relied on by the trial judge, were not proven in evidence. His damage award therefore must also be set aside and remitted back for a trial as to the proper assessment of damages against the corporate entities.
[4] As a consequence, costs of the trial must also be similarly remitted.
[5] To this extent the appeal is allowed.
[6] Costs of the appeal to the appellant in the amount of $6,000 inclusive of disbursements and G.S.T.
"S.T. Goudge J.A."
"K. Feldman J.A."
"R. A. Blair J.A."