COURT OF APPEAL FOR ONTARIO

CITATION: Chemical Equipment Fabricators Limited v. Siebe Automotive, 2007 ONCA 94

DATE: 20070213

DOCKET: C43779

RE:

CHEMICAL EQUIPMENT FABRICATORS LIMITED (Plaintiff/Respondent) – and – SIEBE AUTOMOTIVE, COOPER-STANDARD AUTOMOTIVE INC. and SIEBE AUTOMOTIVE NORTH AMERICA de MEXICO S. de R.L. de S.V. (Defendants/Appellants)

BEFORE:

LASKIN, JURIANSZ JJ.A. and CUNNINGHAM A.C.J. (Ad hoc)

COUNSEL:

Christopher J. Cosgriffe and James J. VanWiechen

for the appellants

Ari Kulidjian

for the respondent

HEARD & RELEASED ORALLY:

February 7, 2007

On appeal from the judgment of Justice David Salmers of the Superior Court of Justice dated February 28, 2005.

E N D O R S E M E N T

[1] The appellants make two main submissions. First, they submit that the trial judge erred by reversing the onus of proof. Second, they submit that the trial judge misapprehended key aspects of the evidence and, as a result, made palpable and overriding errors that tainted his findings. We do not accept either submission.

[2] On the appellants’ first submission, we are not persuaded that the trial judge misapplied the onus of proof. Time was not of the essence in the parties’ agreement. Thus, the delay in completing the contract did not by itself disentitle the respondent to being paid. In order to deprive the respondent of the full benefit of the contract, the appellants had the onus to show that the respondent caused at least a portion of the delay and that this delay caused damage to the appellants. This is how the trial judge approached the resolution of the dispute and, in our view, he was correct in doing so.

[3] On the appellants’ second submission, the trial judge found that the appellants caused at least 13 weeks of the delay and that the appellants had not proven the respondent caused any of the delay. In our view, those findings are not tainted by any palpable and overwriting error in the trial judge’s assessment of the evidence. In particular, we think that the evidence of Briggs, read fairly and in context, is consistent with the trial judge’s findings. We note as well that the appellants continued to pay the respondent, without apparent complaint, until well after the job was completed. The appellants’ conduct in doing so adds further support to the trial judge’s findings.

[4] Accordingly, the appeal is dismissed with costs fixed at $8,500, inclusive of disbursements and G.S.T.

“John Laskin J.A.”

“R. Juriansz J.A.”

“Cunningham A.C.J.”