COURT OF APPEAL FOR ONTARIO

CITATION: TWI Foods Inc. v. Just Energy Corp., 2012 ONCA 150

DATE: 20120309

DOCKET: C53635

Laskin, Cronk and Rouleau JJ.A.

BETWEEN

TWI Foods Inc.

Plaintiff (Respondent/Appellant by way of cross-appeal)

and

Just Energy Corp. and Just Energy Ontario L.P.

Defendants (Appellants/Respondents by way of cross-appeal)

Adrian C. Lang and Sarah Clarke, for the appellants/respondents by way of cross-appeal

Ronald Flom, for the respondent/appellant by way of cross-appeal

Heard and released orally: March 7, 2012

On appeal and cross-appeal from the judgment of Justice James M. Spence of the Superior Court of Justice, dated March 25, 2011.

ENDORSEMENT

[1] Just Energy argued four points:

(1) the trial judge erred in failing to hold that TWI’s claim was barred by the two-year limitation period;

(2) the trial judge erred in finding that TWI had no obligation to mitigate;

(3) the trial judge erred in finding that the gas contract had not been validly renewed; and

(4) the trial judge erred in principle in his costs award.

[2] TWI cross-appealed on the ground that the limitation period should not run at all because of fraudulent concealment.

[3] In Just Energy’s appeal, we called on TWI only on the issues of mitigation and costs. We did not call on Just Energy on the cross-appeal.

(1) The Limitation Period

[4] Although the trial judge found that TWI knew it had a claim by December 2007, he held that the limitation period for each bill charged TWI after 2007 started to run at the time each bill was delivered. That holding was premised on his earlier finding that the parties had not validly entered into a renewal contract. In our view, the trial judge did not err in his treatment of the running of the limitation period.

(2) Mitigation

[5] We are satisfied that it was reasonable for TWI not to have mitigated its loss in the light of the following considerations:

(1) Just Energy consistently represented that it had validly renewed the contract;

(2) TWI repeatedly asked for proof that the contract had been validly renewed and yet was never provided with that proof; and

(3) Just Energy threatened to impose a substantial cancellation fee if TWI terminated the parties’ arrangement for the delivery of gas.

(3) Validity of the Renewal Contract

[6] There was evidence in the record to support the trial judge’s finding that the parties did not enter into a valid renewal contract. Accordingly, we defer to that finding.

(4) Costs

[7] We see no basis for an award of substantial indemnity costs of the trial. Accordingly, we grant leave to appeal costs and reduce the amount awarded to reflect partial indemnity costs. In our opinion, a fair figure is $58,000, plus disbursements and HST.

(5) Fraudulent Concealment

[8] This issue was not raised at trial. Largely for the reasons set out in Just Energy’s factum on the cross-appeal, we decline to entertain this issue on appeal.

[9] Subject to the adjustment of the costs award at trial, the appeal is dismissed and the cross-appeal is also dismissed. Given the divided success in this court, we order no costs of either the appeal or the cross-appeal.

“John Laskin J.A.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”