Court File and Parties

CITATION: Jomar Cattle Feeders Inc. v. Murphy, 2008 ONCA 267

DATE: 20080411

DOCKET: C46487

COURT OF APPEAL FOR ONTARIO

LASKIN, SHARPE and MACFARLAND JJ.A.

BETWEEN:

JOMAR CATTLE FEEDERS INC.

Plaintiff (Appellant/Respondent by Cross-Appeal)

and

FRANK MURPHY and DONNA MURPHY

Defendants (Respondents/Appellants by Cross-Appeal)

Counsel:

John J. Adair for the appellant, respondent by cross-appeal

Brian Kaliel for the respondents, appellants by cross-appeal

Heard and released orally: March 31, 2008

On appeal from the judgment of Justice Robert D. Reilly of the Superior Court of Justice, dated December 4, 2006.

ENDORSEMENT

[1] On the appeal, we agree with Mr. Adair that the trial judge erred in law in his assessment of the damages suffered by the respondents because their cattle were not properly backgrounded.

[2] The basic rule for awarding damages for breach of contract is to put the innocent party in the position it would have been in had the contract been performed. If the appellant had properly performed the contract, the cattle would have been backgrounded to 850 pounds and would have been “green”. The trial judge found that the sale price differential between “green” and “burnt” cattle was seven cents per pound. We therefore agree with the determination of the respondents’ damages set out at para. 28 of the appellant’s supplementary factum.

[3] We recognize, as Mr. Kaliel argued, that had the cattle been properly backgrounded, they would have been sold in February, 2003, instead of March, 2003. However, we cannot tell from this record whether the sale price differential would have been greater than seven cents per pound. If it was, the increase would have been very small. For that reason we award damages based on the trial judge’s finding of seven cents per pound.

[4] On the cross-appeal, the trial judge found at para. 164 of his reasons that the extent to which the cattle were improperly fed or overfed was impossible to determine. He discounted the appellant’s claim for unpaid invoices by thirty per cent to achieve what he considered to be a “fair result”. We see no basis to interfere with his assessment.

[5] Accordingly, the appeal is allowed and the respondents’ damages are reduced as set out above. The cross-appeal is dismissed.

[6] Our disposition of the appeal and cross-appeal affects the costs ordered by the trial judge. We set aside his costs order. Instead, the appellant is entitled to the costs of the trial in the amount of $10,000 and also to the costs of the appeal in the amount of $5,000.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“J. MacFarland J.A.”