Court of Appeal for Ontario

Citation: Kobes Nurseries Inc. v. Convery, 2011 ONCA 662

Date: 20111021

Docket: C53046

Before: MacPherson, LaForme and Epstein JJ.A.

Between

Kobes Nurseries Inc.

Plaintiff (Respondent)

and

Darren Convery and 1553022 Ontario Limited

Defendants (Appellant)

Counsel:

Umberto Sapone, for the appellant

Barry J. Carmichael, for the respondent

Heard and released orally: October 19, 2011

On appeal from the the judgment of Justice Peter D. Lauwers of the Superior Court of Justice dated November 24, 2010.

ENDORSEMENT

[1] The appellant Darren Convery appeals from the judgment of Lauwers J. dated 24 November 2010 finding Mr. Convery personally liable to pay the invoices of the respondent Kobes Nurseries Inc. totalling $78,798.25.

[2] The appellant submits that the trial judge made a palpable and overriding error in finding that, as of 21 July 2008, the respondent’s contractual relationship was with Mr. Convery personally and not with the defendant numbered company.

[3] We do not accept this submission. The trial judge’s review of the conversations over the years between Mr. Convery and Mr. Kobes and of the relevant documentation passing between the parties, including fax transmissions, invoices and cheques, strongly support his conclusion that “Mr. Convery did not bring home to the plaintiff the fact that the status under which he was carrying on business had changed from that of sole proprietorship to a corporation ...[T]he plaintiff has proven on the balance of probabilities that its contractual relationship was with Darren Convery personally and not with the numbered company.”

[4] The appeal is dismissed with costs to the respondent fixed at $5000, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“H.S. LaForme J.A.”

“G.J. Epstein J.A.”