Court of Appeal for Ontario

Citation: Chuang v. Toyota Canada Inc., 2016 ONCA 852 Date: 2016-11-10 Docket: M46812 (C60102)

Before: Doherty, MacPherson and Miller JJ.A.

Between:

Dr. Sylvester Chuang, HSC Holdings Inc., Transoriental Fine Cars Ltd., 1405768 Ontario Limited and Ontasian Enterprises Inc. Plaintiffs (Appellants/Respondents by Cross-Appeal)

and

Toyota Canada Inc. Defendant (Respondent/Appellant by Cross-Appeal)

Counsel: Fred A. Platt, for the appellants/respondents by cross-appeal Timothy Pinos, for the respondent/appellant by cross-appeal

Heard: In writing

Endorsement

[1] The appellants Dr. Sylvester Chuang and several related companies seek to re-open their appeal to this court of the decision of Spence J. of the Superior Court of Justice. The trial judge interpreted a commercial contract between the Chuang plaintiffs and the corporate defendant Toyota Canada Inc. ("Toyota"). Based on his interpretation of the contract, the trial judge dismissed the Chuang action: Chuang v. Toyota Canada Inc., 2015 ONSC 885.

[2] The central issue at trial was whether Toyota's termination of the contract was reasonable. The trial judge held that it was not, but went on to hold that an exclusion clause referring to Toyota's exercise of its termination rights protected Toyota from any obligation to pay damages or other losses caused to Dr. Chuang by termination of the agreement.

[3] This court dismissed the appeal: Chuang v. Toyota Canada Inc., 2016 ONCA 584.

[4] Now the appellants, with different counsel than trial and appeal counsel, seek to re-open the appeal on an entirely different ground not argued in the trial court or this court. The appellants say that Toyota did not terminate the contract; rather it repudiated it and a proper legal analysis relating to the law of repudiation of a contract would lead to a different result.

[5] The motion to re-open the appeal in this case must fail. The legal theory relating to repudiation was not raised at trial; indeed the word 'repudiation' is not employed in the Statement of Claim. Nor was it advanced as a legal argument. In his opening argument, the plaintiffs' trial counsel said:

It's the plaintiffs' position, Your Honour that Toyota's conduct was tantamount to a breach of contract; that it acted unreasonably and in bad faith in terminating the amended LOC and that they breached the very terms of the LOC by failing to give appropriate notice; and in any event they can't rely on their own conduct in misleading the Plaintiffs, and that as a result of their wrongful termination the Plaintiffs are entitled to damages. [Emphasis added.]

[6] The same point applies on the appeal. In both written and oral argument, the 'repudiation' argument was entirely absent. As explained by L'Heureux-Dubé J. in R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 S.C.R. 918, at p. 923:

Courts have long frowned on the practice of raising new arguments on appeal. The concerns are two-fold: first, prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial and second, the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue. [Citations omitted.]

While L'Heureux-Dubé J. was writing in dissent, the majority did not take issue with this part of her judgment. See also: College of Optometrists of Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses), 2008 ONCA 685, 93 O.R. (3d) 139, at para. 90 and Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18.

[7] A party seeking to re-open an appeal after the appeal decision has been rendered faces a high hurdle. After more than 10 years of litigation, it would be unfair to permit the appellants to re-open their appeal on a different legal issue. In Mujagic v. Kamps, 2015 ONCA 360, 125 O.R. (3d) 715, at para. 12, this court said that the power to re-open an appeal "will be exercised sparingly and only where it is clearly in the interests of justice" (citation omitted). It is not in the interests of justice that this appeal be re-opened.

[8] The motion is dismissed with costs to the respondent.

"Doherty J.A."

"J.C. MacPherson J.A."

"B.W. Miller J.A."