CITATION: Levitt Sheikh Chaudhri Swann LLP v. Third Eye Insights Inc., 2025 ONSC 1754
DIVISIONAL COURT FILE NO.: 539/24
DATE: 20250407
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Levitt Sheikh Chaudhri Swann LLP Appellant
– and –
Third Eye Insights Inc. Respondent
Jeffrey Vandespyker, for the Appellant Phillip Millar, for the Respondent
HEARD at Toronto: March 26, 2025
O’Brien J. (orally):
REASONS FOR JUDGMENT
[1] The appellant law firm appeals from a decision of Deputy Judge Clemenhagen of the Small Claims Court dated August 9, 2024, in which he found that the parties had entered into an agreement that required 30 days’ notice to terminate. The respondent is a small marketing agency. The contract was for the respondent to provide marketing and social media services to the law firm. The deputy judge found the appellant terminated the contract without providing the 30 days’ notice and awarded damages of $4700.00.
[2] The appellant submits the deputy judge erred by finding the parties entered into a contract with a 30-day termination clause. In its submission, the parties reached an agreement by e-mail communication ending on February 3, 2021. It says there was no discussion of or agreement to a termination clause. The appellant denies the written contract sent by the respondent on February 4, 2021, which included the termination clause, was received by the individuals responsible for the negotiations including the principal of the firm, Mr. Levitt. It also submits the termination clause was not enforceable because the law firm did not receive any new consideration for it. The appellant finally submits it was denied procedural fairness at the trial because the appellant was not allowed to make proper closing submissions.
[3] The appellate standard of review is correctness for errors of law and palpable and overriding error for factual errors or errors of mixed fact and law, except where they reveal an error in principle. I conclude there was no error in this case.
[4] It was open to the deputy judge to conclude that the parties did not reach a contract through the e-mails ending on February 3, 2021. His finding that, by February 3, the parties had agreed on “some of the basics but not completely everything” was available on the evidence.
[5] It was also open to the deputy judge to find the agreement between the parties was as set out in the written contract sent on February 4, 2021. With respect to the argument that Mr. Levitt did not receive the February 4 contract, the principal of the respondent, Ms. Moore, advised that she would be sending over a written contract. The deputy judge considered the appellant law firm to be a sophisticated party and found that the written contract was received by an employee of the law firm. In these circumstances, it was open to him to find as he did that Mr. Levitt himself received the written contract in his inbox, although he may not have read it. Given that the written agreement was the contract between the parties, no new consideration was needed.
[6] The concept of contra proferentem does not apply because there is no allegation of ambiguity in the termination provision. The dispute is whether the termination provision was agreed to at all. The deputy judge has found that it was and, as I have stated, I would not interfere with that conclusion.
[7] There was no breach of procedural fairness. Both parties were given ample opportunity to make closing submissions. The deputy judge was entitled to ask questions and press the appellant on its position during its submissions. In addition, late in the appellant’s submissions, the deputy judge expressly asked counsel for the appellant whether he had anything else to add. Appellant’s counsel did make further submissions but did not provide case law, despite the opportunity to do so.
[8] The appeal is dismissed. As agreed by the parties, there will be no costs of the appeal.
O’Brien J.
Oral Reasons Released: March 26, 2025
Written Endorsement Released: April 7, 2025
CITATION: Levitt Sheikh Chaudhri Swann LLP v. Third Eye Insights Inc., 2025 ONSC 1754
DIVISIONAL COURT FILE NO.: 539/24
DATE: 20250407
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Levitt Sheikh Chaudhri Swann LLP Appellant
– and –
Third Eye Insights Inc. Respondent
REASONS FOR JUDGMENT
O’Brien J.
Released: April 7, 2025