Court File and Parties

COURT FILE NO.: 433/04 DATE: 20060118

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MÉTIVIER R.S.J., GRAVELY AND SWINTON JJ.

B E T W E E N:

EDENDERRY AGGREGATES LTD. Appellant/Plaintiff

• and -

P.A.T. SUPREME INDUSTRIAL MACHINERY MOVING INC. Respondent/Defendant

Counsel: Christopher Ashby, for the Appellant/ Plaintiff Richard Hammond, for the Respondent/ Defendant

HEARD at Toronto: January 18, 2006

Oral Reasons for Judgment

MÉTIVIER R.S. J.: (Orally)

[1] The appellant submits that the trial judge erred in finding that the plaintiff suffered no damages.

[2] It was further submitted that the trial judge made a palpable and overriding error by failing to appreciate the difference between a straight rental agreement and the nature of the agreement between the plaintiff and the sales and equipment company that provided the first Loader to the plaintiff. This was not a traditional lease but was a conditional sales contract.

[3] It is submitted that the plaintiff would not have incurred the rental cost claimed if it were not for the actions of the defendant in damaging the Loader that was being purchased.

[4] We agree with these submissions.

[5] In our view, the trial judge erred by finding that the plaintiff was paying "to the lease cost of the damaged machine" when in fact the plaintiff was contributing towards the purchase of that machine.

[6] The plaintiff was placed in the position of having no Loader available for its business operations and was forced to incur the expense of renting an alternative Loader until such time as the insurance company had made a decision to write-off the original Loader. Therefore, he should be compensated for the rent he had to pay.

[7] The appeal is allowed.

[8] The appellant has conceded that $500.00 of the payment was true rent and therefore the amount of $1,250.00 should be deducted from the $20,113.00.

[9] The costs from below are to be reversed at the same $5,000.00. The costs here are set at $2,500.00.

MÉTIVIER R.S.J.

GRAVELY J.

SWINTON J.

Date of Reasons for Judgment: January 18, 2006 Date of Release: January 23, 2006

COURT FILE NO.: 433/04 DATE: 20060118

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

METIVIER R.S.J., GRAVELY AND SWINTON JJ.

B E T W E E N:

EDENDERRY AGGREGATES LTD. Appellant/Plaintiff

• and -

P.A.T. SUPREME INDUSTRIAL MACHINERY MOVING INC. Respondent/Defendant

ORAL REASONS FOR JUDGMENT

MÉTIVIER R.S.J.

Date of Reasons for Judgment: January 18, 2006 Date of Release: January 23, 2006