Court of Appeal for Ontario

Citation: Inno-Vite Incorporated v. De Wit Trading Co. Inc., 2008 ONCA 362

Date: 20080507

Docket: C46839

Before: ROSENBERG, BORINS and EPSTEIN JJ.A.

Between:

INNO-VITE INCORPORATED Plaintiff (Respondent)

and

DE WIT TRADING CO. INC., and CREATIVE NUTRITION CANADA CORP. Defendants (Appellants)

Counsel: Richard Mazar for the appellants Nina Perfetto and Lori Marzinotto for the respondent

Heard and endorsed: April 18, 2008

On appeal from the judgment of Justice Geoffrey Morawetz of the Superior Court of Justice dated February 16, 2007.

APPEAL BOOK ENDORSEMENT

[1] In our view, there is no reason to interfere with the trial judge’s calculation of damages. The business records were properly admitted under s. 35 of the Evidence Act; their weight was for the trial judge. The trial judge carefully considered that issue as well as the weight to be attached to the expert opinion. Absent a palpable and overriding error, and we see none, these were matters for the trial judge.

[2] We also see no error in the damage calculation itself. The trial judge considered the evidence and explained the calculation. We again see no error. As to the settlement with the other defendants, the appellants have not established that this settlement related to the loss of profit as calculated by the trial judge.

[3] Accordingly, the appeal is dismissed, with costs fixed at $6,500 inclusive of GST and disbursements.