Court of Appeal for Ontario

Citation: De Post N.V. Van Publiek Recht/La Poste S.A. de Droit Public v. Key Mail Canada Inc., 2012 ONCA 161 Date: 20120315 Docket: C54533

Before: O’Connor A.C.J.O., Simmons J.A. and Perell J. (ad hoc)

Between:

De Post N.V. Van Publiek Recht/La Poste S.A. de Droit Public Plaintiff (Defendant by Counterclaim/Respondent)

and

Key Mail Canada Inc. Defendant (Plaintiff by Counterclaim/Appellant)

Counsel: Gurlal S. Kler, for the defendant (plaintiff by counterclaim/appellant) Jonathon Baker and Danielle Gallo, for the plaintiff (defendant by counterclaim/ respondent)

Heard and released orally: March 12, 2012

On appeal from the judgment of Justice Whitaker of the Superior Court of Justice, dated July 21, 2011.

Endorsement

[1] The appellant appeals a summary judgment granted in favour of the respondent and the dismissal of its cross-motion for relief from forfeiture.

[2] The parties were involved in litigation. The respondent’s claim was for 1.8 million EUR. After mediation before a judge, the parties, both sophisticated commercial entities, entered into Minutes of Settlement. The Minutes provided for periodic payments totalling 1 million EUR over a period of two years. In the event of default, the appellant would consent to judgment in the amount of 1 million EUR. Paragraph 4 of the Minutes provided that the judgment would not give credit for any payments made before a default.

[3] In February 2011, the appellant failed to make a payment in the amount of 40,000 EUR. By then, the appellant had paid 380,000 EUR. The appellant has made no further payments since then.

[4] The motion judge granted the respondent’s motion for summary judgment in the amount of 1 million EUR and dismissed the appellant’s claim for relief from forfeiture.

[5] The appellant argues that the motion judge erred in dismissing its motion for relief from forfeiture and, in particular, the appellant says that the motion judge failed to properly consider the disparity between the damages resulting from the breach and the amount forfeited. That amount was 380,000 EUR.

[6] We see no basis to interfere. As the motion judge said: “The parties are sophisticated commercial entities and freely entered into a settlement which was designed in part to provide the defendant [the appellant] with a real incentive to maintain the agreed payment of schedule”.

[7] In these circumstances, we are of the view that the amount forfeited pursuant to para. 4 of the Minutes of Settlement (380,000 EUR) was not disproportionate in law or unconscionable in equity. Moreover, we note that on the motion, the appellant did not offer to put the payment schedule into good standing immediately and indeed has not done so to date.

[8] Accordingly, the appeal is dismissed.

[9] Costs of the appeal to the respondent are fixed in the amount of $7,500, inclusive of disbursements and all applicable taxes.

“O’Connor A.C.J.O.”

“Janet Simmons J.A.”

“Perell J. (ad hoc) »