DATE: 20050329

DOCKET: C42772

COURT OF APPEAL FOR ONTARIO

RE:

CIT FINANCIAL LTD. (Plaintiff) and SELLTER INDUSTRIES INC. AND KRISHAN JUDGE (Defendants (Appellant)) and PETER DOUGLAS, UPTON BRADEEN & JAMES INC., EMCO MAIER CORPORATION AND BILL ZIMMERMAN (Third Parties (Respondent))

BEFORE:

WEILER, MOLDAVER AND MACFARLAND JJ.A.

COUNSEL:

Anthony M. Speciale

for the appellant Sellter Industries Inc.

John Birch

for the respondent Emco Maier Corporation

William Dunlop

for the plaintiff CIT Financial

HEARD:

March 22, 2005

On appeal from the order of Justice T.P. O’Connor of the Superior Court of Justice dated January 23, 2004.

E N D O R S E M E N T

[1] While the Third Party Notice is not a model pleading there is in our view nevertheless, enough to enable us to discern possible causes of action – that the warranty here is unconscionable, breach of the Sale of Goods Act (cases have held that where a purchaser makes known the purpose of the sale to a manufacturer, and is assured that a certain product would do the job, the manufacturer can be considered a seller for the purposes of the Sale of Goods Act – see Great West Van Conversions Inc. v. Langeuin, [2000] B.C.J. No. 2547) and negligent misrepresentation.

[2] While the pleading in its present form does not clearly set out these causes of action and the material facts relied on in support of them, we are of the view that Sellter should have the further opportunity to properly articulate its causes of action before the door is forever shut.

[3] We would therefore allow the appeal and set aside the order of O’Connor J. made 23 January, 2004.

[4] We would not however interfere with the motion judge’s costs disposition. The motion was necessitated by reason of the deplorable pleading and in our view, the respondent (the moving party before the motions judge) is entitled to its costs before O’Connor J. For the same reason, although the appellant has been successful in this court, we are of the view that the deficiency of the pleading which gives rise to the appeal disentitles the appellant to its costs in this court. The respondent should have its costs of the appeal on a partial indemnity basis that we fix in the all-inclusive sum of $5,000.

“K.M. Weiler J.A.”

“M.J. Moldaver J.A.”

“J. MacFarland J.A.”