Court of Appeal for Ontario

2016 ONCA 192

Date: 20160307

Docket: C60619

Laskin, MacFarland and Roberts JJ.A.

BETWEEN

Tender Choice Foods Inc.

Plaintiff (Appellant)

and

Planet Energy (Ontario) Corp.

Defendant (Respondent)

Counsel:

Louis A. Frapporti, for the appellant

Dan Murdoch and James Wilson, for the respondent

Heard and released orally: March 1, 2016

On appeal from the judgment of Justice Harrison S. Arrell of the Superior Court of Justice, dated May 22, 2015.

ENDORSEMENT

[1] The appellant sued the respondent for a declaration that “the contract between the parties is rescinded” and for damages for negligence and negligent misrepresentation. The appellant is a family-owned meat processing company and the defendant a retailer of electrical and natural gas supply.

[2] In April 2008, the respondent contacted the appellant with a view to selling the appellant a fixed price electrical contract. As the trial judge noted, electrical costs are a significant expense for the appellant and were constantly increasing. He accepted the evidence of the respondent to the effect that the appellant wanted to contain its costs and have a predictable amount going forward that they could accurately budget for and no longer have to worry about the fluctuations in those costs.

[3] In accepting that evidence, the trial judge rejected the evidence of the appellant that the respondent had misrepresented to it that the electrical costs would continue to escalate and that they would save money over the five-year term of the proposed fixed price contract. And as the trial judge noted in his reasons, “any views expressed by Allan were mere opinion or expectations honestly held, that the pricing of electricity would likely continue to increase as that was the prevailing opinion at the time.” The trial judge further concluded that the representatives of the appellants in any event did not rely on any statements made by Mr. Allan.

[4] A proposal was presented and the appellant signed the contract whereby it would be provided with electricity at a specific rate. The trial judge accepted the evidence of Mr. Allan, the representative of the respondent, that he discussed and explained all of the terms of the contract with the appellant’s representatives and answered their questions and in doing so, rejected their assertions to the contrary.

[5] During a subsequent telephone call (the reaffirmation call) from a different representative of the respondent to Michael Paletta of the appellant – which telephone call was recorded with the consent of Mr. Paletta – Mr. Paletta confirmed that the terms of the contract had been fully explained to him and that he had no questions and agreed with its terms. In addition, the contract itself provided a whole agreement clause, a clause to the effect that no representations other than those that were contained in the contract had been made and provided specifically that the price could go up or down over the course of the contract.

[6] The evidence of the appellant’s representatives was problematic and inconsistent. The trial judge concluded that the appellant entered the contract because it felt it was a “good bet.” He concluded there was no credible evidence that Mr. Allan or the defendant was acting in anyway dishonestly. There was no evidence of bad faith and they did not lie or knowingly mislead.

[7] He rejected the evidence of the appellant’s representatives that they were totally ignorant of the fixed price contract given their experience and sophistication. He specifically rejected Angelo Paletta’s accusation that Allan had promised him “a sure thing.” To the contrary, the trial judge accepted the evidence of “all of the witnesses” who confirmed that Allan had discussed with them the possibility of prices going down during the term of the contract and that they would pay more for electricity if that happened. Few were forecasting the significant downturn in the economy that occurred in the fall of 2008 that resulted in the decline in energy prices. The result of that downturn was that the appellant, because of the contract, was paying more for electricity than it would have paid in its absence.

[8] In this court, the appellant essentially takes issue with the trial judge’s factual findings. Those findings are entitled to deference in this court, and absent palpable and overriding error, this court will not intervene. Even if the respondent owed the appellant any duty of care, it was met in this case on the factual findings of the trial judge, which are supported in the evidence.

[9] The trial judge concluded that the respondent had not in any way misled the appellant’s representatives. The terms of the contract had been fully explained to them, including an explanation that if the price of electricity dropped, they would pay more by virtue of the contract. He rejected Angelo Paletta’s evidence that Mr. Allan had told him the contract was a sure thing in terms of saving them the cost of electricity. In general terms, he found the evidence of the representatives of the appellant lacked credibility and he went on and dismissed all claims. We would not interfere with this finding.

[10] The appeal is dismissed.

[11] Costs to the respondent fixed in the amount of $25,000 plus disbursements of $9,337.96 all inclusive.

“John Laskin J.A.”

“J. MacFarland J.A.”

“L.B. Roberts J.A.”