BP Global Special Products (America) Inc. v. Conros Corporation, 2011 ONCA 384

CITATION: BP Global Special Products (America) Inc. v. Conros Corporation, 2011 ONCA 384

DATE: 20110518

DOCKET: C51898

COURT OF APPEAL FOR ONTARIO

Goudge, Gillese and Watt JJ.A.

BETWEEN

BP Global Special Products (America) Inc.

Plaintiff (Respondent)

and

Conros Corporation

Defendant (Appellant)

Michelle Booth and David Vaillancourt, for the appellant

George G. Karayannides and Matthew J. Diskin, for the respondent

Heard: April 18, 2011

On appeal from the judgment of Justice Frank J. C. Newbould, of the Superior Court of Justice dated March 1, 2010, with reasons reported at 2010 ONSC 1094.

ENDORSEMENT

[1] The appellant’s primary argument is that the finding of fact that in November 2002, the appellant took the position it would no longer pay the price agreed to in the contract constituted a palpable and overriding error by the trial judge.

[2] Despite Ms. Booth’s able argument that the evidence relied on by the trial judge all relates to the November shipment and does not sustain a conclusion about the appellant’s future compliance, we do not agree. The trial judge had the context of the dealings between the parties, including the appellant seeking repeatedly to take lower quantities of product than the contract called for, and repeatedly calling for pricing below the contract price. Against this background, the appellant’s conduct concerning the November shipment is important, particularly that it did not accept a proposed price reduction (made by Mr. Sass, although without authority) but attempted to insist on an even greater price reduction. Its conduct left the respondent with the impression that in future the appellant would most likely demand further decreases below the agreed to contract price.

[3] On the basis of this evidence, it was open to the trial judge to draw the factual inference that the appellant’s attitude to this contract was such that going forward, it was likely that they would no longer honour the contract price. The appellant concedes that this finding, if proper, constitutes repudiation.

[4] The appellant also argues that the trial judge erred in finding that the respondent accepted the repudiation and communicated it effectively to the appellant.

[5] Again, we do not agree. The evidence was that in the face of the appellant indicating that it would no longer pay the contract price, the respondent cancelled the November shipment and took the decision to pursue the appellant through litigation for the revenue lost due to this repudiation. The trial judge was entitled to conclude that by doing so, the respondent accepted the repudiation.

[6] Nor did the trial judge err in finding that the respondent communicated its acceptance. Given that Mr. Nunes understood from the respondent’s communications that the cancellation of the November shipment meant that the respondent was ending the contract, the communication of that acceptance was both sufficient and effective.

[7] The appeal must be dismissed. Costs to the respondent fixed at $25,000, inclusive of disbursements and applicable taxes.

“S. T. Goudge J.A.”

“E. E. Gillese J.A.”

“David Watt J.A.”