Court of Appeal for Ontario

Dated: 2018-05-02 Docket: C64066

Panel: Doherty and Pepall JJ.A. and Gray J. (ad hoc)

Between

Chinese Publications for Canadian Libraries Ltd. Plaintiff (Appellant)

and

City of Markham and Markham Public Library Defendants (Respondents)

Counsel

For the Plaintiff (Appellant): Qiang Li Cao

For the Defendants (Respondents): David G. Boghosian and Magdalena Fish

Heard: April 27, 2018

On appeal from: The order of Justice Kristjanson of the Superior Court of Justice, dated June 20, 2017.

Reasons for Decision

[1] This is an appeal from a summary judgment proceeding in which the appellant's claim was dismissed.

[2] The trial judge found that the operative terms of the contract allowed the respondents to terminate the agreement without cause on 30 days' notice.

[3] The motion judge found that the respondents exercised that right in good faith. Her interpretation of the contractual provisions reveals no error. Her factual findings were warranted on the record.

[4] We cannot interfere on appeal.

[5] We note some uncertainty as to the exact date on which the notice became effective. However, whether the notice took effect in March, April or mid-May (as the respondents accept), there was no evidence that the respondents did not make whatever payments it was obliged to make during the notice period.

[6] The allegations of procedural unfairness are without merit. Mr. Cao was given a full opportunity to put the appellant's position forward in writing and orally. The motion judge fully appreciated that position. Any difficulties Mr. Cao has with English did not materially prejudice the appellant or impair the appearance of procedural fairness.

[7] Leave to appeal a cost order is granted sparingly. There are no grounds to grant leave to appeal in this case. We do not accept the submission that the respondents made the matter unnecessarily complicated and thereby incurred unnecessary costs. In some respects, this was a factually complicated matter.

[8] The appeal is dismissed.

[9] If the respondents advise the court within seven days that they are not seeking costs of the appeal, the appeal shall be dismissed without costs. If the respondents choose to seek costs, they shall serve and file written submissions, of five pages or less, within 21 days of the release of these reasons. The appellant shall have 21 days from the service of those written submissions to serve and file its submissions on costs. Those submissions shall not exceed five pages.

"Doherty J.A."

"S.E. Pepall J.A."

"D.K. Gray J. (ad hoc)"