COURT OF APPEAL FOR ONTARIO

CITATION: United Rentals of Canada Inc. v. C.M. Brake Inc., 2007 ONCA 618

DATE: 20070913

DOCKET: C46378

LASKIN, MOLDAVER and LAFORME JJ.A.

BETWEEN:

UNITED RENTALS OF CANADA INC.

Applicant/Respondent in Appeal

and

C.M. BRAKE INC., COMPLETE BRAKE SYSTEMS INC., COMPLETE TRUCK PARTS INC., MICHAEL BERI, JIM GRAY and CALCON CAPITAL INC.

Respondents/Appellants in appeal

Counsel

Gregory Gryguc for the appellants Michael Beri and C.M. Brake Inc.

Hillel David for United Rentals of Canada Inc

Max Shafir for Calcon Capital Inc.

Heard: September 11, 2007

On appeal from the order of Justice D. Brown of the Superior Court of Justice dated November 8, 2006.

APPEAL BOOK ENDORSEMENT

[1] The affidavit of Mr. Beri does not make out a case of ineffective assistance of counsel. The motion for fresh evidence is therefore dismissed.

[2] On the appeal itself, we are persuaded that paragraph 1(g) of the order of Brown J. should be set aside. Rule 19.05(2) requires that a claim for unliquidated damages after notice of default be supported by affidavit evidence. In our view, the affidavit evidence in support of the repairs claim is unsatisfactory.

[3] Nowhere in the supporting affidavit is there any indication of the qualifications of the deponent to estimate repair costs. All that we have are bald figures unsupported by any details given by a manager who had no stated expertise to opine on these estimates.

[4] Accordingly, the appeal is allowed in part by setting aside para. 1(g) of the trial judge’s order without prejudice to the respondent’s right to pursue its claim for repair costs on proper evidence.

[5] On the agreement of counsel, costs of the motion and the appeal shall be payable by the appellants to the respondent in the amount of $4,000, all inclusive.