Court of Appeal for Ontario

CITATION: Nexus Solutions Inc. v. CEM Specialties Inc., 2012 ONCA 38

DATE: 20120119

DOCKET: C52467

BEFORE: Goudge, Epstein JJ.A., and Newbould J. (ad hoc)

BETWEEN

Nexus Solutions Inc.

Plaintiff (Appellant)

and

CEM Specialties Inc. and Ontario Power Generation Inc.

Defendants (Respondent in appeal)

COUNSEL:

Scott Gallagher, for the appellant

Ross Nicholson, for the respondent

HEARD: January 19, 2012

On appeal from the judgment of Justice W.A. Jenkins of the Superior Court of Justice, dated June 29, 2010.

APPEAL BOOK ENDORSEMENT

[1] The appellant first argues that the trial judge erred in failing to find that a preliminary contract was concluded when Nexus submitted its proposal to CEMSI thereby accepting a CEMSI offer to, in good faith, support Nexus’ proposal.

[2] We do not agree. The trial judge found as a fact that the pattern of conduct between these parties required a purchase order to form a contract. There was a clear basis in the evidence for doing so. We find no palpable and overriding error in the trial judge’s conclusion that here there was no preliminary contract between the parties.

[3] Secondly, the appellant argues that an oral contract was formed in a December 22, 2004 phone call. Again the appellant faces an insurmountable finding of fact, in our view. The trial judge carefully reviewed the evidence of the call and concluded that it did not support a finding of offer and acceptance. There was a clear basis for that on the evidence and we see no error in his conclusion. There is no basis for us to set it aside here.

[4] The appeal is dismissed. The respondent is entitled to partial indemnity costs fixed at $15,000 inclusive of disbursements and applicable taxes.