DATE: 20060216

DOCKET: C42173

COURT OF APPEAL FOR ONTARIO

RE:

SPORTS & ENTERTAINMENT INC. (Plaintiff/Respondent) v. VIACOM ENTERTAINMENT CANADA INC. carrying on business as PARAMOUNT CANADA’S WONDERLAND (Defendant/Appellant)

BEFORE:

DOHERTY, MOLDAVER and JURIANSZ JJ.A.

COUNSEL:

Todd J. McCarthy and Michael W. Chadwick

for the defendant/appellant

William A. Chalmers

for the plaintiff/respondent

HEARD & ENDORSED:

February 15, 2006

On appeal from the judgment of Justice M.R. Dambrot of the Superior Court of Justice dated June 21, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The reasons for judgment on the lost profit claim are brief, however, brevity cannot be equated with inadequacy.

[2] An historical approach to the calculation of a lost profit calculation is one of the recognized ways that the claim can be quantified. The trial judge was entitled to take into consideration both the plaintiff’s expert’s familiarity with the plaintiff’s books and records and the failure to cross-examine him on much of his evidence in deciding how much weight to give to that evidence.

[3] The trial judge also turned his mind to the defendant’s expert evidence. He appreciated that expert’s criticism of the plaintiff’s expert’s approach to the lost profit calculation. In the end, however, he chose to accept the approach of the plaintiff’s expert. He was entitled to make that determination.

[4] The appellant also argues that the trial judge failed to consider whether advertisements allegedly lost by the breach of contract were in fact transferred to other accounts. In our view, that claim was not developed in the evidence to the extent that the trial judge’s failure to expressly advert to this argument demonstrates error in principle by the trial judge.

[5] The appeal is dismissed. Costs to the respondent on a partial indemnity basis in the amount of $9,500, inclusive of GST and disbursements.