Court of Appeal for Ontario

Citation: 2017 ONCA 508 Date: 2017-06-16 Docket: C63411

Panel: MacPherson, Blair and MacFarland JJ.A.

Between

Biosweep Canada Corporation Appellant (Plaintiff)

and

2314515 Ontario Inc. Respondent (Defendant)

Counsel

For the Appellant: Brian N. Radnoff

For the Respondent: No one appearing

Hearing and Lower Court Decision

Heard: June 13, 2017

On appeal from: The order of Justice Sean F. Dunphy of the Superior Court of Justice, dated February 10, 2017.

Reasons for Decision

[1] We are not persuaded that the trial judge made any error in dismissing the balance of the appellant's claims.

[2] The "obligation" to return the equipment on termination of the agreement at paragraph 7D of the licence agreement was stated to be subject to paragraph 4A of the agreement.

[3] Paragraph 4A gives BSCA nothing more than a "first option to assume any and all Biosweep equipment owned by 231 at the time the agreement is terminated." That clause went on to provide that "the option to purchase the Biosweep Equipment shall be exercised by BSCA within 60 days following the termination of this agreement by notice in writing by BSCA to 231 of its intention to purchase the said Biosweep Equipment".

[4] The paragraph further provides: "upon receipt of notice of BSCA intention to purchase the said BioSweep Equipment, 231 shall deliver the said BioSweep Equipment owned to BSCA forthwith…"

[5] As the motion judge noted in his endorsement, the appellant did not serve any written notice of its intention to purchase the equipment as required by the term of its agreement.

[6] The letter dated February 26, 2016 is silent in respect of the equipment and counsel's letter dated January 17, 2017 was sent long after the 60 day notice period had passed.

[7] The equipment had been purchased outright by the respondent subject only to the reserved option. There is nothing in the agreement that specifically prohibits the use of the equipment on the expiry of the agreement, only the provision of services.

[8] Accordingly, we agree with the motion judge's conclusion that the claims for conversion and detinue for the return of the equipment cannot succeed.

[9] Damages must be proved and here there is a dearth of evidence to support the claim for damages in relation to the torts of passing off, unjust enrichment and unlawful interference with economic interests. Even if we accept that the deemed admissions in the Statement of Claim establish liability, the evidence put forward by the appellant at its very highest is no more than pure speculation and guess work. There is no independent evidence in relation to the damage claim at all. There is only the opinion of one of the principals of the appellant based on what he considered to be a "comparable" licensed operation in British Columbia.

[10] The appeal is dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

J. MacFarland J.A.