Court of Appeal for Ontario

Citation: Royal Group Inc. v. Core Precision Technologies Ltd., 2012 ONCA 228

Date: 2012-04-10

Docket: C54381

Before: Lang, Epstein and Hoy JJ.A.

Between:

Royal Group Inc.

Plaintiff (Respondent)

and

Core Precision Technologies Ltd.

Defendant (Appellant)

Counsel:

Vusumzi M.N. Msi, for the appellant

Ranjan K. Agarwal and Stephen N. Libin, for the respondent

Heard: April 3, 2012

On appeal from the judgment of Justice Kenneth L. Campbell of the Superior Court of Justice, dated August 24, 2011.

APPEAL BOOK ENDORSEMENT

[1] The appellant takes no issue with the aspect of the judgment that granted judgment in favour of the respondent. It challenges the motion judge’s dismissal of its counterclaim on the basis that the motion judge’s reasons did not address the “finished products discount.”

[2] The difficulty for the appellant is that the discount issue was not pleaded in the counterclaim. The only possible reference to such a claim in the counterclaim is para. 24, which contains a generic pleading that the respondent failed to comply with its obligations. However, that paragraph relied on the immediately preceding paragraphs that refer to misrepresentation allegations and allegations concerning the cost of raw materials. There is no reference to the discount.

[3] We further note, when the appellant’s counsel attempted to cross-examine the respondent’s representative on the discount issue, the respondent’s counsel refused the question on the basis that it was not relevant to the issues pleaded. The appellant neither brought a refusal motion nor sought to amend its pleadings.

[4] In these circumstances, the motion judge did not err in not addressing the discount issue. Nor are we persuaded that the motion judge misapprehended the evidence in any way. Finally, the motion judge did not err by failing on his own initiative to raise the question of an amendment to the counterclaim, particularly where no formal leave to amend had been requested by the appellant.

[5] Costs to the respondent fixed in the amount of $6,000, inclusive of disbursements and applicable taxes.