Court of Appeal for Ontario
Date: 20230526 Docket: C70830
van Rensburg, Paciocco and Thorburn JJ.A.
BETWEEN
Gergely Jakab and Ontario Heavy Xpress Ltd. Plaintiffs (Appellants)
and
Clean Harbors Canada, Inc. Defendant (Respondent)
Counsel: Noah G. Aresta, for the appellants Kris Kernick, for the respondent
Heard: April 24, 2023
On appeal from the judgment of Justice Byrdena MacNeil of the Superior Court of Justice, dated May 31, 2022.
Paciocco J.A.:
Introduction
[1] The appellant, Gergely (“Greg”) Jakab, leased a transport truck from CLE Enterprises Ltd. (“CLE”) through his solely owned corporation, the second appellant, Ontario Heavy Xpress Ltd. (“Xpress”). On July 5, 2018, after Xpress had purchased the truck outright, it caught fire and was destroyed. At the time of the fire Mr. Jakab was returning from having the truck serviced. The truck could not be repaired, and Mr. Jakab and Xpress sustained appreciable losses.
[2] At all relevant times Mr. Jakab was operating the truck exclusively for a large waste disposal company, the respondent, Clean Harbors Canada Inc. (“Clean Harbors”). Pursuant to the terms of the “National Transportation Lease Agreement (Cdn.)” (the “contract”) that the parties had entered on January 23, 2017, Xpress agreed to provide freight haulage and furnish the trucking equipment to Clean Harbors. During the currency of the contract, the truck was operated under licence plates registered in Clean Harbors’ name. The appellants had not purchased any insurance for the vehicle, and Clean Harbors had not insured it for first-party damage by fire. After the fire, Clean Harbors looked into it and an amount between $18,000 - $20,000 (USD) was floated. Mr. Jakab therefore initially believed Clean Harbors was going to pay for the Truck, but ultimately Clean Harbors refused to do so.
[3] Mr. Jakab and Xpress sued Clean Harbors for damages, which the trial judge assessed to be $63,775.22. The appellants claimed that Clean Harbors had breached its contractual obligation to provide first-party insurance coverage for damage by fire (the “breach of contract claim”). It also advanced the alternative claim that, after the contract had been concluded, an employee of Clean Harbors negligently misrepresented to Mr. Jakab that the truck was “fully covered” (the “negligent misrepresentation claim”). The trial judge dismissed both claims.
[4] Mr. Jakab and Xpress appeal the order dismissing the action. For the reasons that follow, I would dismiss the appeal as it relates to the breach of contract claim but allow the appeal in relation to the negligent misrepresentation claim.
[5] As I will explain, the trial judge did not make a factual finding on the contested issue of whether the alleged representation was made. She dismissed the negligent misrepresentation claim on the footing that even if a representation had been made, it was not an actionable misrepresentation. The trial judge’s reasons for that conclusion were in error. I would therefore set aside her decision. However, this court cannot substitute its own decision for that of the trial judge as we would need to decide whether a representation was made, and, on the record before us, the evidence is not available to enable us to do so. The determination of this factual issue raises questions of credibility and reliability that were not addressed by the trial judge. In the absence of a finding at trial as to whether the representation was made, and the inability of this court on this record to make that finding, I would order a retrial of the negligent misrepresentation claim.
The Breach of Contract Claim
A. Overview
[6] The appellants claim that, properly interpreted, the contract required Clean Harbors to insure the truck fully, including for first-party damage by fire, which they failed to do. For the reasons that follow, I would find that the trial judge did not err in rejecting this claim, finding that the parties had agreed only that Clean Harbors would make available to the appellants the insurance coverage that it obtained and maintained, and that it was the appellants’ obligation to satisfy themselves as to the adequacy of that coverage.
[7] The parties do not agree on the standard of review that applies to this ground of appeal, so I will begin with that issue.
B. The Standard of Review
[8] The appellants argue that the contract is a standard form contract of adhesion, attracting correctness review under the authority of Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23. In support of their position, they rely on evidence that the contract is a pre‑printed contract that was simply presented to the appellants for execution, and that Clean Harbors’ Vice-President of National Logistics testified that the terms of the contract were not negotiable.
[9] Conversely, Clean Harbors submits that a deferential standard of appellate review applies since this contract was prepared for the specific situation of owner/operator truck drivers contracted by Clean Harbors in Canada and is not the kind of “highly specialised” industry wide standard form contract having the precedential value envisaged in Ledcor. Clean Harbors also relies on testimony provided by its Vice President of Risk Management in which he expressed disagreement with the suggestion that the contract was non-negotiable. Finally, Clean Harbors argues that even if the contract was a contract of adhesion, the company has approximately 20 owner/operator truck drivers it contracts with in Canada, not enough to give the interpretation of the contract the meaningful precedential value that can attract correctness review.
[10] The question of whether standard form contracts of adhesion used exclusively within a single organization have a sufficient precedential value to attract correctness review has yet to be settled. In Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, 449 D.L.R. (4th) 583, Kasirer J., for the Court, questioned whether correctness review would apply to a standard form employment contract used with a “limited number of executives” but found it was unnecessary on the facts before him to resolve the issue. This court has yet to grapple with this question directly. In my view, it is unnecessary to attempt to do so in this case. Even applying the more demanding correctness standard of review, I would uphold the trial judge’s interpretation of the contract.
C. The Relevant Legal Principles
[11] Contractual interpretation is an exercise in discovering the “objective intentions of the parties as expressed in the words of the contract”: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, a para. 57. This “fact-specific goal” requires a trial court to “read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract”: Sattva, at para. 47; Ledcor, at para. 27. When a contract is read as a whole, it should be interpreted “in a manner that gives meaning to all of its terms and avoids an interpretation that would render one or more of its terms ineffective”: 2249778 Ontario Inc. v. Smith (Fratburger), 2014 ONCA 788, at para. 19; Meridian C C Intl Inc. v. 2745206 Ontario Inc., 2022 ONCA 12, at para. 7. The exercise of interpretation should also reflect the factual matrix underlying the contract and accord with sound commercial principles and good business sense, while avoiding commercially absurd interpretations: 2249778 Ontario Inc., at para. 19. However, “the [surrounding circumstances] should never be allowed to overwhelm the words of [the] agreement”: Sattva, at para. 57.
[12] If ambiguity in contract terms still remains after the above principles are applied, the rule of contra proferentem can be applied: Ledcor, at para. 51. Its role is to give effect to an ambiguous clause by preferring the reasonable interpretation that favours the party that did not have control over its drafting: Manulife Bank of Canada v. Conlin, [1996] 3 S.C.R. 415, at para. 9; 2249778 Ontario Inc., at para. 22.
D. Analysis - Breach of Contract
[13] The trial judge concluded that the parties had agreed that Clean Harbors would be “obligated … to make available to the [appellants] only that coverage found in the policies of insurance that Clean Harbors obtained and maintained”. Since Clean Harbors did not carry first-party coverage for damage by fire, it was not required to make such coverage available to the appellants, and therefore bears no contractual obligation for the damages the appellants sustained.
[14] The appellants argue that the trial judge erred in arriving at this interpretation and determination. They argue that, properly interpreted, the contract requires Clean Harbors to provide insurance for all risks, including first-party coverage for fire damage, which they failed to do.
[15] I acknowledge that, in isolation, clause 1 of “Schedule 2 – Insurance”, is capable of supporting either interpretation. Clause 1 of Schedule 2 provides, in material part:
Clean Harbors will make all insurance … available to the Contractor [1] for the purpose of insuring the Equipment [including the truck] and the Contractor under policies of insurance obtained and maintained by Clean Harbors.
[16] However, I am of the view that the interpretation arrived at by the trial judge better reflects the ordinary meaning of the words used in clause 1 of Schedule 2. The phrase, “make … available”, more naturally describes an obligation to provide access to something that is already held, than an obligation to obtain and maintain something new. Moreover, if the phrase “make available” is meant to describe an obligation on the part of Clean Harbors to secure insurance for the appellants, the subsequent phrase in clause 1 of Schedule 2, “obtained and maintained” would be redundant. Finally, the term “all insurance”, lacks the precision needed to describe an obligation to secure full coverage for all forms of loss. The term “all insurance” raises the question, “‘All insurance’ of what kind?”. There is nothing in clause 1 of Schedule 2 that suggests the reference is to all insurance for all risks. When read in context, the term is modified by what remains, and most naturally communicates that what is required to be made available is “all insurance … under policies obtained and maintained by Clean Harbors”, which, of course, is what the trial judge found.
[17] When the provision is viewed in the context of the contract as a whole, it removes all room for reasonable debate and resolves any apparent ambiguity that, read in isolation, clause 1 of Schedule 2 may carry. Most materially, there are three terms in the contract that can be given meaning consistent with the trial judge’s construction, but which conflict with the meaning the appellants propose. They would effectively become meaningless or pointless were the appellants’ proposed interpretation to prevail.
[18] First, clause 13 imposes sole responsibility on the appellants “for loss or damage to the Equipment [2] however caused”, and it explicitly contemplates the appellants themselves maintaining insurance in respect of damage to the truck. If Clean Harbors was obliged to provide full insurance against all risks, it would make no sense to assign responsibility for loss or damage to the equipment to the appellants, or to include a provision related to the insurance the appellants obtain. Simply put, clause 13 would be bereft of meaning on the appellants’ interpretation.
[19] The appellants recognize this conflict but seek to overcome it by relying on the rule of contra proferentem to prefer the interpretation of clause 1 of Schedule 2 that they favour. This submission must be rejected. The rule of contra proferentem operates to give effect to contract clauses. It does not nullify them. As indicated, if clause 1 of Schedule 2 is interpreted as the appellants propose, clause 13 would be left with no role to play.
[20] Moreover, the rule of contra proferentem applies in cases where contractual clauses are ambiguous: 2249778 Ontario Inc., at para. 22. A determination of ambiguity cannot be arrived at until after the material clause has been interpreted in the context of the contract as a whole. No ambiguity exists unless, after the principles of construction have been applied, more than one reasonable construction remains. The appellants’ contra proferentem submission is incorrectly predicated on an examination of clause 1 of Schedule 2 in isolation. As indicated, since clause 13 cannot be reconciled with the construction advanced by the appellants but it is entirely consistent with the interpretation arrived at by the trial judge, the apparent ambiguity can be removed by interpreting clause 1 of Schedule 2 as the trial judge did.
[21] The second term that poses the same challenge to the appellants’ submission is found in clause 2 of Schedule 2. It provides in material part that “Clean Harbors makes no representation or warranty with respect to the extent or adequacy of the insurance coverage made available by it and assumes no responsibility for the adequacy of such insurance.” The idea that Clean Harbors makes no representation or warranty with respect to the adequacy of the insurance coverage is irreconcilable with an obligation on its part to take responsibility for full insurance coverage. On the other hand, recognition that Clean Harbors makes no representation or warranty with respect to the adequacy of insurance is entirely consistent with the interpretation the trial judge gave to the contract.
[22] The third term of note is also in clause 2 of Schedule 2 and says: “The Contractor shall be solely responsible to satisfy himself as to the adequacy of the coverage afforded by such insurance.” Imposing an obligation on the appellants to satisfy themselves as to the adequacy of insurance coverage makes no sense if Clean Harbors is affirmatively obliged to secure and maintain insurance for all risks, but it makes perfect sense if Clean Harbors is obliged to make available to the appellants only the insurance that it carries.
[23] It also bears note that when the subject insurance coverage is referred to in the balance of Schedule 2 it is repeatedly described as the insurance that Clean Harbors has “made available”. None of the language used to refer to the insurance suggests an obligation on Clean Harbors part to acquire and maintain insurance. This pattern reinforces the trial judge’s interpretation and challenges the interpretation offered by the appellants.
[24] In support of their interpretation, the appellants rely upon the fact that clause 3 of Schedule 2 specifies the deductibles that the appellants are to pay, including $2,000 for damage to the truck tractor and $2,000 for damage to the truck trailer. They argue, in effect, that there would be no need to specify deductibles, including for first-party property damage, if such coverage is not being provided for under the contract. I do not agree. Even the trial judge’s interpretation contemplates that Clean Harbors will carry some insurance and may choose to secure any or all kinds of coverage. When the contract is interpreted as a whole, these provisions can and should be interpreted as describing the appellants’ obligations to pay deductibles for the insurance that Clean Harbors does carry. Even if Clean Harbors does not carry forms of insurance anticipated in the list of deductibles, it is prudent to make provision for those deductibles in case it chooses to acquire and maintain such policies of insurance.
[25] In sum, when the contract is read as a whole and interpreted in a manner that gives meaning to all of its terms, any ambiguity is eliminated; it is clear that the parties agreed that Clean Harbors was obligated to provide only that coverage found in the policies of insurance that it maintained. The trial judge therefore did not err in rejecting the appellants’ submission that the factual matrix requires that the interpretation they advance be accepted. For the reasons I have expressed, accepting that submission would impermissibly permit the factual matrix to overwhelm the language of the contract. It would be wrong to force a meaning on a contract that it cannot reasonably bear in order to give effect to what the appellants contend to be the usual arrangement in the industry.
[26] Moreover, I see nothing commercially absurd in expecting a subcontractor who owns or leases a truck to insure their own interest in that truck, in the event that the insurance the trucking company provides is insufficient to do so. I am not persuaded on the record that the trial judge was obliged to find that a truck owner is not permitted to buy supplementary insurance on their own truck. There was evidence on the record before her to the contrary.
[27] In my view, the trial judge correctly interpreted the contract. I would dismiss the appellants’ appeal relating to the breach of contract claim.
The Negligent Misrepresentation Claim
A. Overview
[28] In my view, the trial judge erred in law in dismissing the negligent misrepresentation claim. Although they have been variously stated, there are essentially five elements that must be shown to establish a negligent misrepresentation claim. Those five elements are stated as follows by the Supreme Court of Canada, in Queen v. Cognos Inc., [1993] 1 S.C.R. 87, at para. 34, and by this court in Mahendran v. 9660143 Canada Inc., 2022 ONCA 676, at para. 9:
(1) There is a “special relationship” between the person making the statement and the person hearing it; (2) it is reasonable for the person hearing the statement to rely on it; (3) the statement is untrue; (4) the person was careless in making the statement; and (5) the person who reasonably relied on the statement suffered damages.
[29] Although the trial judge cited the correct test, as I will explain, she effectively dismissed this claim after finding that elements 1-3 inclusive were not met. In my view, she erred in legal principle in making these determinations. I would therefore allow this ground of appeal.
B. The Material Facts
[30] Mr. Jakab testified that he did not discuss the issue of insurance coverage with Clean Harbors before signing the contract on January 3, 2017. He therefore takes no issue with the trial judge’s finding that there was no evidence before her of any misrepresentation made before or at the time of the execution of the contract.
[31] Upon entering the contract, Clean Harbors provided Mr. Jakab with a copy of a “pink insurance slip” issued by Chubb Insurance Company of Canada that could be shown to the police or other drivers. The pink slip read, in part, “Motor Vehicle Liability Insurance Card”.
[32] Mr. Jakab said that subsequently, on some unknown date during the time that Xpress was still leasing the truck from CLE and before the fire on July 5, 2018, he did speak with a Clean Harbors employee in their Burlington, Ontario office about insurance coverage. Although he believes that it was Lisa Sauer (“Lisa S.”) that he spoke to, it could have been Kim Indeway (“Kim I.”). He explained his confusion saying that both of these Clean Harbors employees were always coming and going.
[33] Mr. Jakab testified that he made the insurance inquiry because he was seeking proof of insurance for CLE. He testified that he asked the Clean Harbors employee, “if [he was] fully covered or not” and was told “you’re fully covered, you should be okay with that.” The conversation was not detailed. Mr. Jakab acknowledged that he did not ask specific questions about whether the insurance coverage included first-party property damage insurance (including coverage for fire damage), but he testified that, based on the conversation, he believed that he was covered under a first-party property damage policy for up to $250,000. At no time did he ask to see the full insurance policy. When asked what steps he had taken to learn the terms and conditions of the policies of insurance he said, “I took their word for it … I’m fully covered.” He gave evidence of detrimental reliance on the alleged representation, saying that had he known that Clean Harbors had not taken out full insurance, he would not have worked for them.
[34] Clean Harbors contested this testimony during the trial, although it did not call evidence to contradict Mr. Jakab’s account. The Clean Harbor witnesses testified that they did not know anything about an alleged conversation between Mr. Jakab and Kim I. or Lisa S. Mr. Jakab was challenged based on his inability to specify who the alleged conversation was with, a weakness in his testimony that could dimmish the reliability of his account. He was also cross-examined on differences between his testimony and the affidavit he had prepared, including testimony he provided for the first time at trial that he had received information about being insured for up to $250,000. When he did bring this up in his evidence at trial Mr. Jakab initially testified that Lisa S. had told him this, but shortly after testified that he may have heard about the $250,000 from another truck driver, he could not be certain. While Mr. Jakab took the position that his evidence about the conversation with a Clean Harbors representative was uncontradicted, in its closing argument Clean Harbors submitted that “the plaintiff’s claim of negligent misrepresentation must fail for the simple reason that no misrepresentation or, indeed, any representation at all was made by the defendant with respect to the insurance company.”
C. Analysis – The Negligent Misrepresentation Claim
[35] The trial judge made no factual finding as to whether any representation was made by Lisa S. or Kim I. about the insurance. Instead, she dismissed the negligent misrepresentation claim finding that, even if a representation had been made, the first three elements of the negligent misrepresentation test had not been met. I will first address the absence of a representation finding, which is relevant to the disposition of this appeal, before explaining the errors in the remainder of the trial judge’s analysis.
[36] In argument before us Clean Harbours submitted that the trial judge affirmatively found that no such representation had been made. I disagree. As indicated, she chose not to make any finding on the issue. When she said, “I find that Clean Harbors did not misrepresent the insurance coverage available to the Plaintiffs pursuant to the [contract],” she was not resolving whether Lisa S. or Kim I. told Mr. Jakab that he was fully covered. First, a finding that there has been no misrepresentation is not a finding that there was no representation. Second, the trial judge made this statement in a paragraph of her judgment in which she was addressing whether any misrepresentations were “made by Clean Harbors prior to or at the time of signing of the contract about the extent of insurance coverage.” In context, the finding I have just quoted that “Clean Harbors did not misrepresent the insurance coverage available to the Plaintiffs pursuant to the [contract]” was a finding confined to the period prior to or at the time the contract was signed.
[37] Having made this finding, the trial judge then went on to address the “misrepresentation” allegedly made by Lisa S. or Kim I. In doing so, the trial judge did not resolve the underlying factual question of whether the “fully covered” statement had been made. Instead, she reasoned on the basis that “even if” such representation had been made, it would not be actionable. In the course of her reasons, she made three contingent references leaving open the possibility that Lisa S. or Kim I. may have represented to Mr. Jakab that he was “fully covered”. First, she posed the question, “what, if any, representation was made to Mr. Jakab by Lisa I. or Kim S. about being fully covered” (emphasis added). She never answered that question. Second, she later prefaced comments by saying, “even if someone told Mr. Jakab that the Volvo Truck was ‘fully insured’ …” (emphasis added). Third, she prefaced a subsequent point, saying, “to the extent Mr. Jakab may have been told that he was ‘fully covered’ …”. Quite simply, had the trial judge made a firm finding that she was not satisfied that either Lisa S. or Kim I. had made a representation to Mr. Jakab that he was fully covered, she would not have used the language she did. In my view, when the trial judge’s reasons are read as a whole, it is evident that she chose not to make a factual finding on whether the “fully covered” conversation occurred, but to dismiss this ground of appeal on the basis that even if such statement had been made by Lisa S. or Kim I., it was not an actionable misrepresentation.
[38] The trial judge offered several reasons why the alleged representation, even if made, would not satisfy the legal test for a negligent misrepresentation. Respectfully, I would find that each of those reasons is predicated on errors of legal principle.
[39] The first component of the five-part test – that there is a “special relationship” between the person making the statement and the person hearing it – has two sub‑elements. To satisfy this component the plaintiff must show: (a) that the alleged representation was made, and (b) that the person making it and the plaintiff were in a special relationship. I have difficulties with the trial judge’s reasoning on both elements.
[40] First, she said, “the Plaintiffs have not met their burden of proof in establishing on a balance of probabilities who told him this ” (emphasis added). In context, this must be a reference to Mr. Jakab’s uncertainty about whether he had spoken to Lisa S. or Kim I. The problem with the trial judge’s finding in this regard is that the plaintiff was not required to establish the precise identity of the particular person making an alleged representation. So long as the appellants established on the balance of probabilities that someone authorized to speak on Clean Harbors’ behalf made the alleged representation, element (a) would be met, even if the precise identity of the speaker could not be proved. On the evidence, both Lisa S. and Kim I. were Clean Harbors’ agents of some authority. Lisa S. was the terminal manager, and Kim I. was the logistics co-ordinator. There was also evidence that they both participated in the execution of the contract with Mr. Jakab. On the evidence before the trial judge each could have had the authority to make relevant representations on Clean Harbors’ behalf. So long as the appellants established that one or the other of these employees made the representation, element (a) would have been satisfied. The trial judge erred in principle by requiring proof of precisely who made the representation.
[41] I would also find that the trial judge erred in resolving whether element (b), the “special relationship” requirement, was met. She said, “I am not convinced that Clean Harbors owed a duty of care based on any sort of special relationship here. This was an ordinary commercial transaction between two businesses for the purpose of entering into a provision of services relationship”. In support of this finding, she focused on the choice made by the appellants to enter the contract. In my view, this focus was wrong in the context of this case, because of the nature of the contract entered into. The contract provided specifically that the appellants had responsibility to satisfy themselves as to the sufficiency and adequacy of the insurance coverage. The appellants could not meaningfully satisfy themselves as contemplated by the contract without learning what insurance coverage Clean Harbors carried. They were therefore dependent, as the result of a contractual term, on receiving accurate information from Clean Harbors in that regard. I would find that in the circumstances of this case, the contractual terms created a special relationship in which Clean Harbors had a duty of care to transmit accurate information relating to its insurance coverage on request from the appellants. To hold otherwise would undermine this contractual provision.
[42] Nor do I agree with the trial judge’s alternative reasoning with respect to the “special relationship” – that the fact that the contract specified that Clean Harbors was making no representation regarding the extent or adequacy of the available insurance coverage would “discharge” any duty that Clean Harbors owed. If this were true, the appellants could not fulfill their contractual responsibility to satisfy themselves as to the sufficiency of insurance coverage because they could not rely on any representations that Clean Harbors might make in that regard. In my view, the trial judge overstates the significance of the “no representation” clause of the contract. This clause is adequate to prevent the appellants from succeeding with a claim that there were contractual or precontractual representations about the extent or sufficiency of insurance, but it does not protect Clean Harbors from negligent post-contractual representations it might have made.
[43] The second element of the five-part test requires the plaintiffs to establish on the balance of probabilities that “the representations are inaccurate or misleading.” However, the trial judge did not examine whether the statement was inaccurate or misleading. Instead, she erred by focussing on whether the representation, if made, could be considered to be true. Specifically, she said:
I also agree with the contention of counsel for the Defendant that, even if someone told Mr. Jakab that the Volvo Truck was “fully insured”, this statement could be considered true in the sense that the Volvo truck was insured to the full extent required by Ontario law respecting third party liability insurance.
[44] This overstates the plaintiffs’ onus. To meet its “balance of probabilities” burden, a plaintiff need only show that it is more probable than not that the statement is inaccurate or misleading. The appellants need not go on to also show that the statement cannot be considered to be true.
[45] The third element of the five-part test requires a plaintiff to establish that “the representations were made negligently.” The trial judge found that “the Plaintiffs have not met their burden of proof of establishing on a balance of probabilities … that their statement was intended to convey that ‘fully covered’ included first party property damage insurance for the Volvo truck” (emphasis added). This once again overstates the burden on the plaintiffs. The question for the trial judge was not whether the maker intended the representation, “fully covered”, to include first‑party property fire damage. Regardless of what message they intended to communicate, it would be enough if the maker was negligent in causing the appellants to believe that they were fully covered including first-party property fire damage.
[46] Given these errors in principle I am satisfied that the trial judge made material legal errors in her analysis of the negligent misrepresentation claim. I would therefore allow this ground of appeal.
Conclusion
[47] For the foregoing reasons, I would dismiss the breach of contract ground of appeal but allow the negligent misrepresentation ground of appeal.
[48] As I explained in the introduction to this judgment, the only available disposition upon allowing the negligent misrepresentation ground of appeal is to order a new trial. Even if this court, on a different record, could make the requisite findings of mixed fact and law relating to the elements of the five-part negligent misrepresentation test, on the record before us there was a live issue as to whether the appellants had established that the alleged representation was made, that depended in part on an assessment of the credibility and reliability of Mr. Jakab’s evidence, which was not addressed by the trial judge.
[49] I would therefore order a new trial on the negligent misrepresentation issue.
[50] Although there was mixed success between the parties on the issues argued in this appeal, the appellants have prevailed in the outcome. As agreed between the parties, I would award costs to the appellant on this appeal in the amount of $10,000, inclusive of disbursements and applicable taxes. I would also reverse the costs awarded below and require Clean Harbors to pay $21,921.71, inclusive of disbursements and applicable taxes.
Released: May 26, 2023 “K.M.v.R” “David M. Paciocco J.A.” “I agree. K. van Rensburg J.A.” “I agree. J.A. Thorburn J.A.”
[1] In the contract, the appellants are referred to as the “Contractor”. [2] “Equipment” is defined in the contract as describing the truck.
