Court of Appeal for Ontario

Date: March 26, 2018 Docket: C64183 Judges: MacFarland, Huscroft and Nordheimer JJ.A.

Between

Bone Safety Signs, LLC Plaintiff (Respondent)

and

Work Zone Safety Products Inc. Defendant (Appellant)

Counsel

Barry Yellin, for the appellant

Matthew Maurer, for the respondent

Heard and released orally: March 22, 2018

On Appeal

On appeal from the judgment of Justice Patrick Monahan of the Superior Court of Justice, dated July 17, 2017 with reasons reported at 2017 ONSC 4355.

Reasons for Decision

[1] The defendant appeals from the summary judgment granted by the motion judge that awarded to the plaintiff the amount of Canadian dollars sufficient to purchase the sum of $47,301.92 (USD) together with interest and costs.

[2] The appellant was a distributor of the respondent's product. In late 2015, the respondent notified the appellant that it would be increasing its prices effective May 1, 2016. In response, the appellant ordered a significant amount of product just before the price increase went into effect. The respondent brought this action for payment and moved for summary judgment. The appellant defended the motion on the basis that the respondent had allegedly agreed to take back other unrelated product that had been ordered and paid for years before. The appellant alleged that the respondent failed to do so and asserted a number of defences including an alleged failure to mitigate by the respondent.

[3] The appellant also appeals against that portion of the costs award that granted costs to the respondent on a substantial indemnity basis from the date of its offer to settle. The appellant asserts that the offer to settle did not comply with Rule 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[4] In terms of the main appeal, we find no merit to the appellant's various complaints. First, the motion judge correctly enunciated and properly applied the principles regarding when it is appropriate to grant summary judgment. Second, the motion judge found that there was no factual foundation advanced by the appellant to support a defence of waiver. Third, it is not clear to us how a duty to mitigate arises in the context of an action for goods sold and delivered. However, even if such a duty did arise, the motion judge correctly concluded that there was, again, no factual foundation advanced by the appellant to support that contention.

[5] Consequently, there is no basis for us to interfere with the summary judgement that was awarded.

[6] In terms of the costs issue, the appellant contends that the offer to settle did not comply with Rule 49 because the offer provided for payment of $42,000 (USD) as opposed to providing for the payment of the amount of Canadian dollars required to purchase the foreign currency obligation. Rule 49.02(1) allows a party to make an offer to settle on whatever terms it wishes. The requirement under s. 121 of the Courts of Justice Act, R.S.O. 1990, c. C.43 regarding foreign money obligations applies only to orders of the court for payment of those amounts. Further, even if the appellant's contention was technically correct, r. 49.13 permits a court to consider any offer to settle made in writing in exercising its discretion with respect to costs. Consequently, there is also no merit to the appellant's complaint regarding the costs determination.

Conclusion

[7] The appeal is dismissed. Costs are awarded to the respondent fixed in the amount of $8,000 inclusive of disbursements and HST, as per the agreement of counsel.

"J. MacFarland J.A."

"Grant Huscroft J.A."

"I.V.B. Nordheimer J.A."