Court File and Parties

CITATION: Accent Metals Inc. v. Stelfab Niagara Ltd., 2011 ONCA 691

DATE: 20111108

DOCKET: C51679

COURT OF APPEAL FOR ONTARIO

Juriansz, Rouleau and Watt JJ.A.

BETWEEN

Accent Metals Inc.

Plaintiff (Respondent)

and

Stelfab Niagara Ltd.

Defendant (Appellant)

Counsel: Michael B. Miller and Michael Arbutina, for the appellant Rosemary Fisher, for the respondent

Heard and released orally: October 21, 2011

On appeal from the judgment of Justice C. Raymond Harris of the Superior Court of Justice, dated January 22, 2010.

ENDORSEMENT

[1] The appellant argues that the trial judge erred in refusing an adjournment of the trial due to the late disclosure of a schematic drawing of the Dustex job. We disagree. Adjournment decisions are due deference. Though the trial judge was admittedly brief in his dismissal of the request, that dismissal came after hearing the submissions of counsel and taking a recess to consider the matter.

[2] In our view, the appellant suffered no prejudice as a result of the late disclosure and the refusal of the adjournment. The fresh evidence the appellant seeks to file, similarly in our view, does not show that it had suffered any prejudice.

[3] The second issue is the appellant’s claim that the trial judge made only a blanket finding of credibility. We would not give effect to this ground of appeal. Though it is true that the trial judge states that he preferred the evidence of Mr. Cadieux, over that of Mr. Morganelli, his analysis does not begin or end with that single statement. Throughout the judgment, the trial judge supported his credibility findings with references to other aspects of the evidence.

[4] We also see no merit in the submission that the trial judge erred in having failed to rule that the amendment to the interest rate claimed in the statement of claim was prevented because of the passage of a limitation period. The change in the interest rate claimed does not represent an entirely new claim, but rather a change to a component of an existing claim for monies owing. That claim was filed within the limitation period.

[5] We also conclude that the argument that the parties had not agreed to an 18 per cent interest rate must fail. Although it appears that the trial judge erred when he stated that the credit agreement had been signed by both parties, we nonetheless see no error in his conclusion that there was an agreement to pay interest. The credit application showing an 18 per cent rate was completed and submitted by the appellant’s bookkeeper. The respondent’s evidence was not that the credit application had been scrapped, but rather, that it had not been accepted as written. The appellant did not pay for the goods as required and because of the default, it ended up in a debtor/creditor relationship with the respondent. There was a sufficient basis on this record for the trial judge’s conclusion that there was agreement on the 18 percent credit terms on overdue accounts.

[6] Lastly on the issue of costs, the appellant is once again faced with the high threshold needed to demonstrate that appellate intervention is warranted. While we agree that the costs award seems high, particularly in comparison to the principal amount awarded, there is no basis for finding that it is plainly wrong, or that the trial judge committed an error in principle in making his award.

[7] We also dismiss the application to file fresh evidence. In our view that evidence is of limited probative value in view of the parties’ position at trial that the pricing of the Dustex job was based on weight. It would not have affected the outcome.

[8] In conclusion, the appeal is dismissed. Costs fixed in the amount of $15,000 inclusive of disbursements and taxes.

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”

“David Watt J.A.”