Court of Appeal for Ontario

CITATION: Tender Choice Foods Inc. v. Versacold Logistics Can. Inc., 2013 ONCA 474

DATE: 20130719

DOCKET: C56566

Rosenberg, Sharpe & Gillese JJ.A.

BETWEEN

Tender Choice Foods Inc.

Plaintiff / Appellant

and

Versacold Logistics Canada Inc.

Defendant / Respondent

Counsel:

Michael Swartz and Graham R. Brown, for the appellant

Marina E. Sampson and Jacob Kaufman, for the respondent

Heard and released orally: June 17, 2013

On appeal from the order of Justice Paul Perell of the Superior Court of Justice, dated January 3, 2013.

ENDORSEMENT

[1] The appellant claims that it only knew of its loss from the breach of duty to warn when the internal investigation report was disclosed in 2010. This is based on a theory that it paid fees until October 2006 and only learned in 2010 that the goods were stolen well before that date. On the appellant’s own pleadings it knew some of the goods were stolen as early as July 2006 and by October 2006 that all lots 1, 2 and 3 were stolen. By that time it knew it had paid some fees for storage when the goods were no longer in storage. It may not have known the full extent of the damages but that is not required under s. 5 of the limitations act, see: Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156 at para. 61.

[2] Accordingly, the appeal is dismissed.

[3] The appellant has not shown that an error of principle was made respecting the costs awards and accordingly leave to appeal costs is refused.

[4] The respondent is entitled to its costs fixed at $10,000.00 inclusive of disbursements and HST.

“M. Rosenberg J.A.”

“R.J. Sharpe J.A.”

“E.E. Gillese J.A.”