ONTARIO SUPERIOR COURT OF JUSTICE

Windsor Small Claims Court

SC-10-33043
SC-10-33043-D1

B E T W E E N

2027512 ONTARIO INC.,
also known as PORRONE TRANSPORT

Plaintiff
Defendant in Defendant ’s Claim

• and -

JAG WORLD WIDE IMPORTS

Defendant
Plaintiff in Defendant ’s Claim

BEFORE : Deputy Judge James Branoff

COUNSEL : Frank Miller for Plaintiff/Defendant in Defendant’s Claim
Adam Paglione for Defendant/Plaintiff in Defendant’s Claim

HEARD : November 2, November 14, December 12, 2012

REASONS FOR JUDGMENT

1The Plaintiff’s Claim is for 6 unpaid invoices totaling $6,400 relating to trucking transport services from New York, Newark or Boston to Leamington.

2The Defendant’s Claim is for the losses and damages suffered as a result of the spoilage, loss and reduction in value of peppers when the Plaintiff failed to pick up a shipment on the evening of August 12, 2008 until 5:01 p.m. on August 14, 2008 (the “Boston Shipment”).

3The Plaintiff (“Porrone”) is a transport truck operator and as part of its business, operates to pick up goods from east coast airports and transport them over the U.S. - Canada border into Canada and deliver them to their final Canadian destination.

4The Defendant (“JAG”) is a produce wholesaler and as part of its business, purchases peppers from Holland which are flown to the United States and delivered to customers who repackage them for retail sale to the public.

5There is little or no issue with the Plaintiff’s Claim for the payment of 6 unpaid and outstanding invoices, 1 of which related to the Boston Shipment that is the subject matter of the Defendant’s Claim. It is clear that had it not been for the events with respect to the Boston Shipment, JAG would have no issue with Porrone’s services and the unpaid invoices would have been paid without incident. The non-payment was directly as a result of the delay and resulting damages associated with the Boston Shipment.

6Porrone and JAG had done business prior to the Boston Shipment without incident or issue. Porrone was considered to be a reliable transport company which JAG had utilized several times in the 6 months prior to the Boston Shipment in August of 2008.

7The Trial proceeded on the Defendant’s Claim (which is in essence a counterclaim) where JAG seeks Judgment for the monetary jurisdiction limit of this Court, being $25,000, having abandoned the excess in order to bring this action within the jurisdiction of this Court.

8The Boston Shipment consisted of 1,125 cartons of yellow peppers and 1,125 cartons of orange peppers which JAG was selling to Mucci International Marketing Inc. (“Mucci”) for $14.25 per carton for an expected total of $33,187.50.

9JAG seeks to recover damages of $28,850.50 USD being $33,187.50 that it would have sold the Boston Shipment for to its customer, Mucci, less the $4,337.00 that it did receive on the sale of the unspoiled and salvaged peppers. Some peppers were disposed of and some were down graded and sold for less than ½ of the original price.

10From the evidence of JAG, the peppers are purchased from Rainbow International BV in Holland. If the shipment is destined for Canada, they are flown to the United States and then must be transported by a bonded transport carrier into Canada. If the shipment is destined for the United States, the shipment requires a Phyto Sanitary Certificate from the source, but can be transported within the United States by either a bonded or unbonded transport carrier. Porrone was not itself a bonded carrier, but a third party was paid to allow its bond to be used by Porrone. The arrangements were made either by JAG or T.H. Weiss for Porrone to use a bond owned by South Pacific Transportation in order to be able to bring the Boston Shipment from Boston to Kingsville.

11In order to successfully get the produce from the grower to the customer, there are several steps and a regulated process which must be complied with, involving Customs Brokers and the U.S.D.A.

12In relation to the Boston Shipment, a broker, T. H. Weiss, Inc., was used for the import into the United States and a separate broker, UTI, Canada, Inc., was used for the import into Canada. The shipping was arranged by Kuehne & Nagel N.V.

13For the subject Boston Shipment, JAG gave a quote to Mucci, which was accepted and evidenced by the issuance of a Purchase Order. Having made a sale, JAG arranged for the purchase from Rainbow. The shipment of a total of 2,250 cartons represented 30 pallets which would fill an 53 foot trailer.

14On August 11, 2008, through the services of Kuehne & Nagel, JAG obtained the flight details of the Boston Shipment which was to arrive at Boston’s Logan Airport at 20:20 on American Airlines flight 115 on August 12, 2008. With those details in hand, JAG claims to have contacted Porrone in order to contract with Porrone for Porrone to pick up the Boston Shipment and transport the same into Canada to the customer, Mucci, in Kingsville, Ontario. Porrone on the other hand indicates that it was Mucci that knew that Porrone was making deliveries for Mucci in the area of Logan Airport so that Porrone would be available to take on a reload in Boston for its return trip to the Leamington area. Regardless, it is not in dispute that Porrone was hired to pick up the Boston Shipment and bring it to Mucci in Kingsville.

15JAG’s principal, Antonio Dimenna, and its Office Administrator, Mary Dimenna, detailed for the Court that once a shipment was arranged, T. H. Weiss would set an appointment with the USDA to attend and inspect the shipment, watch it being loaded onto the trailer and seal the truck for security purposes where it would remain sealed until it crossed over the border into Canada. If the appointment was missed, a new appointment would be required and need to be arranged. Mary Dimenna indicated that for a shipment arriving at 8:20 p.m., the transport carrier would need to arrive at the airport at around 6:00 p.m. to get in line and wait for its appointment with the USDA. The dock/warehouse closes at midnight and re-opens at 8:00 a.m. the next day.

16According to the DiMennas, upon being contacted by JAG on August 11, 2008 with respect to the Boston Shipment, Porrone affirmed that it would be able to pick up the Boston Shipment, an arrangement that had been successfully completed between them prior to the Boston Shipment.

17It was JAG’s evidence that the flight arrived in Boston on time, but Porrone’s truck was not there for the USDA supervised appointment and pick up. T. H. Weiss contacted JAG who in turn contacted Porrone to inquire as to the reason for the missed pick up and when it would get there. There was contradictory evidence on behalf of JAG with respect to the sequence of calls and contacts. It was not clear if T. H. Weiss contacted Antonio Dimenna or Mary Dimenna. It was not clear if Antonio Dimenna called Mary Dimenna or vice versa. What is clear is that T. H. Weiss contacted JAG and after Antonio Dimenna and Mary Dimenna spoke to one another between 9:30 p.m. and 10:00 p.m. on the night of August 12, 2008, Mary Dimenna then called Porrone and spoke with someone named Nicole.

18Mary Dimenna was instructed by Antonio Dimenna to stay on top of it in order to see what she can do to get the shipment picked up. She indicated that Porrone, through Nicole, advised her that the truck which was to pick up the Boston Shipment, was delayed unloading in New York, but that it would be unloading that night (August 12, 2008) and it would be in Boston for the pick up on the morning of August 13, 2008. Nicole Adolphe on behalf of Porrone maintains that the pick up was not to occur until the morning of the 13th and that there was never an agreement or representation that there would be a pick up on the 12th.

19The evidence on behalf of JAG was that given the lateness of the day, with the warehouse closing at midnight, there was insufficient time or ability to locate a substitute bonded carrier to pick up the Boston Shipment before midnight on August 12. The soonest that another bonded carrier could have made a pick up in Boston, if one could be located and hired to do so, would have resulted in a pick up the next morning. Also, if the carrier was to be changed, the broker’s documentation would have to be revised and re-issued in order for the pick up to take place as well as the import into Canada.

20In cross-examination, it was acknowledged by both JAG witnesses that no efforts whatsoever were made to locate another carrier to step in. The reasons for the lack of effort included:

(a) the need for and difficulty to locate an available bonded carrier;

(b) if one was located, all of the documentation would need to be re-issued, which may lead to delay;

(d) if one was located, it would not be there any earlier than it was now anticipated that Porrone would get there, namely the morning of August 13.

21The DiMennas indicated that there were no refrigeration facilities at the American Airlines warehouse at the Boston Airport or whatever facilities there were, were not be large enough to accommodate 30 pallets of peppers. As a result, the peppers remained unrefrigerated in Boston over night on August 12, 2008.

22JAG maintained that at this point, if picked up in the morning of August 13, there would be some damage or harm to the peppers , but it would have been minimal.

23There was no pick up by Porrone on the morning of August 13. When further inquiries were made, JAG claims that Porrone advised it that the pick up would be after lunch on the 13th, but that did not occur. The Boston Shipment was not picked up by Porrone until the afternoon of August 14 and then made its way to Canada via Buffalo where it arrived at the Canadian border at midnight on August 14, 2008. The Boston Shipment was not delivered to JAG’s customer, Mucci, until some time on August 15, 2008.

24It is JAG’s position that the delay in pick up, being at 5:01 p.m. on August 14 instead of approximately 10:00 p.m. on August 12, with the peppers being unrefrigerated at the American Airlines warehouse at the Boston Airport, caused the peppers to spoil and to such a degree that all of the yellow peppers has to be disposed of and 184 cartons of the orange peppers had to be disposed of, leaving 941 cartons salvageable and sold at a lower price of $7.00 per carton instead of $14.25 per carton with a further expense and loss of $2,250.00 being $1.00 per carton for regrading. The end result is that JAG was paid a total of $4,337.00 USD for the Boston Shipment instead of the quoted, agreed upon and invoiced amount of $33,187.50 USD, thereby sustaining a loss of $28,850.50 USD, which is limited to $25,000.00 CDN in these proceedings.

25From the evidence on behalf of Porrone, many additional and conflicting details were provided. Nicole Adolphe the Administrative Assistant for Porrone, gave evidence in a straightforward and credible manner, readily admitting her lack of awareness of various matters. I accept that in giving her evidence, she did so attempting to be honest and forthright.

26The events that lead up to the delayed pick up were explained by Ms. Adolphe. Mucci was having Porrone deliver 4 loads to the Massachusetts/New York area starting August 11, 2008. Knowing that Porrone would be in the Boston area, Mucci, who had agreed to buy a pepper shipment from JAG, advised JAG of Porrone’s availability to take a re-load in Boston to bring the peppers to Kingsville. The Porrone truck was to take a trailer load to the east coast for Mucci and then make a pick up of the Boston Shipment to return to Mucci. The cycle began and ended with Mucci. Mucci had a contract with Porrone to deliver to the east coast. Porrone had a contract with JAG to effect a pick up in Boston. JAG had a contract with Mucci to sell it peppers.

27JAG acquires produce from overseas and sells to businesses like Mucci who package and sell them to retailers. Both JAG and Porrone had substantial business relationships with Mucci. JAG sold substantial produce to Mucci. Mucci used the trucking services of Porrone. Mucci was described by Porrone as its main customer.

28Despite being intricately involved, Mucci was not a party to this action. There was no explanation why Mucci was not named in the action or added to the action once it began. There was no explanation why no one from Mucci was produced as a witness by either party. Clearly, information from Mucci would have been extremely helpful to the Court in determining or apportioning the issue of liability.

29Subject to evidence that Mucci may have been able to provide and based on the evidence that was presented to this Court, it would appear that neither JAG nor Porrone, but Mucci was responsible for the problem that set off a chain of events which lead to the loss.

30The 4 loads that Porrone was taking to the east coast were loaded in the reverse order to the intended unloading. The first stop was in Monticello, New York, then to Chelsea, Massachusetts to a customer named Matarazzo, followed by a delivery to New Bedford, Massachusetts and ending with a final delivery to Hatfield, Massachusetts. The pick up of the Boston Shipment was to then take place.

31Ms. Adolphe indicates that the final delivery to Hatfield, Massachusetts was expected to take place at 7:00 a.m. on August 13 which would have allowed it to pick up the Boston Shipment at 8:30 a.m. on August 13. She maintains that there was never an agreement or ability to make the pick up on the evening of August 12, but that its earliest pick up would have been in the morning of August 13. She also maintains that JAG was fully aware of and accepting of this.

32These best laid plans encountered a problem when the customer for the 4th and final drop in Hatfield, Massachusetts refused to accept part of the load on the basis that was indicated on the Bill of Lading being that the 625 boxes of red clusters were not ordered by it. This left the Porrone truck with part of a load and unable to attend to the intended and agreed upon Boston Shipment pick up. Mucci was contacted and advised of the non-acceptance of part of the load and was able to avoid having it returned. Mucci scrambled and was able to make arrangements for the load to be delivered to Matarazzo in Chelsea, Massachusetts, which had been the second of the 4 stops, but the delivery could not take place until Matarazzo opened at 11:00 p.m. on the 13th. As a result, the Boston Shipment did not get picked up late on the 12th or at all on the 13th.

33Ms. Adolphe further indicates that the Porrone truck was at Boston’s Logan Airport and able to make the pick up at midnight on the 13th, but there was no USDA appointment until 3:00 p.m. on the 14th at which time the pick up was completed and at 5:01 p.m. the truck set out for the trip to Kingsville via Buffalo at midnight. There was no explanation given to the Court for such delay in the USDA appointment.

34The initial cause of the domino effect was the non-acceptance of part of the Mucci load carried by Porrone to Hatfield, Massachusetts. This was a load arranged by Mucci. Porrone was just the delivery mechanism. Porrone had to hold part of the load and was not able to unload the same at Matarazzo until almost a full day later.

35During the Trial, an issue arose with respect to the final destination of the Boston Shipment. The issue was caused by the “SHIP TO” address on the Quote and Invoice to Mucci from JAG being a Taylor, Michigan address. Mucci has packing facilities in Kingsville, Ontario and in Taylor, Michigan. The purchase order from Mucci did indicate the destination of Kingsville. This issue bears directly on the issue of mitigation.

36This issue arose before JAG had closed its case and before Porrone began its defence of the Defendant’s Claim. As a result, I allowed JAG to recall its President, Antonio Dimenna, to give further evidence limited and directly related to the final destination of the Boston Shipment due to the apparent discrepancy on the documents and to be cross-examined on the same.

37Mr. Dimenna testified that the contents of the Boston Shipment were destined for Canada as the shipping process differed greatly if destined for the United States. Most significantly, if the Boston Shipment was to be delivered to Mucci in Taylor, Michigan, there would have been a need for a Phyto Sanitary Certificate from Holland and no need to travel into Canada. It is Porrone’s contention that if destined for Taylor, Michigan, there would have been no need for a bonded carrier and a replacement for the delayed Plaintiff truck could easily have been found to pick up in Boston and transport the peppers to Taylor, Michigan without having to cross into Canada.

38I accept the explanation of JAG wherein the SHIP TO address on the Quote and Invoice is shown as Taylor, Michigan because the purchase and sale is in U.S. Dollars which causes the U.S. address to come up when the documents are being generated. This conclusion, that the Boston Shipment was destined for Mucci in Canada, is supported by the contents of the purchase order and the admission by Porrone that its delivery destination to Mucci was Kingsville, Ontario, not Taylor, Michigan and that the eventual delivery took place to Mucci in Kingsville.

39It is pure speculation, but likely that neither JAG or Porrone wished to bring Mucci into the action for fear of adversely affecting their respective business relationships with Mucci.

40Based on the evidence, the inescapable conclusion is that Mucci contributed to, if not caused, the delay due to the inability to deliver all 4 loads or drops as anticipated. It is suggested on behalf of JAG, but there was no evidence to support this, that Mucci may have erred in providing for the 625 boxes of red clusters to be delivered to C & S Wholesale Grocers in Hatfield, Massachusetts when it ought to have been part of the Matarazzo shipment in the first place as it ended up there. Regardless, the issue with the unaccepted shipment cannot in any way be visited upon JAG or Porrone.

41Mucci is not a party to the claims, therefore the issue of liability must therefore be determined and/or apportioned as between JAG and Porrone without regard to the apparent cause of or contribution to the problem by Mucci.

42There was some evidence of discussions between the parties when they met, with others present, to inspect the damaged peppers that an insurance claim can and ought to be made, but there was no evidence of any such insurance claim being made relative to the loss related to the Boston Shipment. I draw no inference or reach no conclusion based on these discussions

ISSUE

43The issue in the Defendant’s Claim comes down to which party should bear the risk and responsibility for the loss and in the event it is Porrone, what is JAG’s duty to mitigate and was that duty met?

THE LIABILITY OF PORRONE

44Porrone accepted the assignment without reservation or limitation. Porrone wanted the benefit of a re-load to avoid having to return home empty.

45Porrone, perhaps for reasons or causes beyond its control, was not able to fulfill its part of the bargain or agreement with JAG. Porrone knew that the Boston Shipment contained perishable goods and therefore appreciated that time was of the essence, that a delay in pick up could result in damage to the goods.

46I therefore find that as between JAG and Porrone, Porrone must bear the risk of loss associated with a delay in pick up and resulting spoilage of the perishable goods. Liability cannot be attributed to JAG for what took place. Porrone had a duty associated with the contract to pick up and deliver the peppers with time being of the essence. Porrone breached that duty by not making the pick up for 42 hours later than it ought to taken place according to JAG or for 32.5 hours later than it was to take place according to Porrone. Porrone is therefore liable for the damages that arise as a result of the said breach. The spoilage of the peppers and resulting loss in value was forseeable.

47As it relates to JAG, Porrone must bear the liability, if any, on the part of Mucci. Porrone may be able to attribute the cause of the delay and resulting loss to a third party, possibly Mucci or its customers, but Porrone cannot attribute this to JAG. The matter of liability of a third party to Porrone is not before this Court and it is not known if it is before any other Court.

THE LIABILITY OF JAG

48It is extremely difficult to find fault with the actions and conduct of JAG prior to the issue of the pick up delay arising. JAG contracted with Porrone and Porrone accepted the assignment. In fact, Porrone did ultimately pick up, transport and deliver the Boston Shipment. Furthermore, Porrone invoiced JAG for the handling of the Boston Shipment. It is one of the invoices upon which Porrone’s Claim is based. JAG did not cause or contribute to the late pick up, but once Porrone failed to make the pick up, whether late on the 12th as JAG contends or early on the 13th as Porrone contends, the obligation to mitigate arose and JAG did nothing. JAG simply claimed that nothing could be done to effect an earlier pick up by another or to place the shipment into refrigerated storage. This leads to the issue of mitigation.

MITIGATION

49The law imposes a positive duty on a party suffering a loss to take steps to minimize, reduce and/or eliminate the loss. This is known as mitigation and the failure to mitigate will result in a corresponding reduction or elimination of the damages and recovery.

50Did JAG mitigate? Did JAG fail to do something that it could have and should have done in order to reduce its losses? JAG’s position has been summarized at paragraph 20 herein. JAG basically maintains that any of the efforts that Porrone contends JAG ought to have taken would have been an exercise in futility. It would be easier to accept JAG’s alleged inability to mitigate if some efforts had been made and failed. Doing absolutely nothing makes it impossible to speculate or determine if there was any ability to reduce or eliminate the damages. The failure to make any attempts shows a lack of mitigation.

51There was no evidence as to what JAG could have done or that doing so would have failed or been successful. The complete lack of any effort to mitigate prevents there from being any evidence in this regard. The onus to prove mitigation is on JAG who admits, albeit not readily, that it did nothing to find another bonded carrier to go to Boston for the pick up at an earlier time than Porrone was expected to be there.

52Had Porrone stated that it could no longer complete the pick up, then both JAG and Porrone could have taken steps to locate a substitute carrier. Even with the documentation having to be re-done, it is reasonable to assume that a replacement could have been located for pick up before the time that Porrone did actually make the pick up.

53Porrone could also have assisted in the effects to mitigate the losses. Porrone could have taken steps to:

(a) see if the peppers were able to be refrigerated at the airport;

(b) if they could be refrigerated, advise JAG what needed to be done;

(c) see if another bonded truck could be located and dispatched;

(d) dispatch or re-direct another one of its trucks for the pick up.

54Like JAG, the lack of mitigation efforts by Porrone also contributed to the degree of damage suffered. Both JAG and Porrone failed to make any effort to mitigate and as a result, neither is completely innocent.

DAMAGES

55Counsel for JAG argues and relies on the Supreme Court of Canada decision in Beaver Specialty Ltd. v. Donald H. Bain Ltd. , 1973 29 (SCC) , [1974] S.C.R. 903. The case appears to be strikingly similar to this case, but can be easily distinguished. The case included not only the vendor (JAG) and the carrier (Porrone), but also the purchaser (Mucci) who refused to accept delivery of cargo damaged in transit. Most significantly, the case related to damages which incurred entirely in transit after being picked up on time. The case involved an interpretation of The Sale of Goods Act, the interpretation of various shipping documents and the determination of which company had title to the walnuts while they were in transit. Finally, mitigation and the apportionment of liability for the damages were not issues therein. The SCOC case simply provides no assistance to this Court in this action.

56With damages arising from a breach of contract the law strives to put the innocent party, to the extent that money can do so, in the same position as it would have been in had the breach not occurred. Porrone claims for 6 unpaid invoices totaling $6,400.00 which includes an invoice for $1,300.00 relating to the subject Boston Shipment. JAG argues that Porrone should not be paid for the shipment that gave rise to the damages, yet JAG seeks to recover damages for that shipment from Porrone. Had the breach not occurred, Porrone would have been paid for that shipment. It follows, and I find, that Porrone is entitled to be paid for the shipment, as if it had been duly picked up and delivered as anticipated and without incident.

57Accordingly, the Plaintiff (Porrone) is, subject to the Defendant’s Claim, entitled to a Judgment against the Defendant (JAG) for the full amount of its claim in the sum of $6,400.00. The claim seeks interest under “an agreement at the rate of 24% per year”, but there is no evidence to support such an agreement or award. At most, Porrone is entitled to interest pursuant to the Courts of Justice Act .

58JAG’s damages total $28,850.50, being the contracted sale price to Mucci of $33,187.50 less the amount actually received for the damaged shipment in the sum of $4,337.00. There was no issue taken at Trial with the decision to dispose of 1,125 cases of yellow peppers and 184 cases of orange peppers or to accept $7.00 per case for the remaining 941 cases of orange peppers less $1.00 per case or $2,250.00 to re-grade the entire shipment. Again, this may have been due to the reluctance on the part of both parties to sour their business relationship with Mucci.

59There are many uncertainties with respect to the effect of the delay. Damage to the peppers may have occurred:

(a) from the evening of the 12th (when JAG claims Porrone was supposed to make the pick up) to the morning of the 13th (when Porrone claims it was supposed to make the pick up),

(b) from the morning of the 13th (when Porrone was supposed to make the pick up) to midnight on the 13th (when Porrone claims it was first available to make the pick up), and

(c) then from midnight on the 13th (when Porrone claims it was first available to make the pick up) to the afternoon on the 14th (when the pick took place).

60On the evidence presented, there is no way to determine or apportion with any specificity or accuracy how much damage occurred during each period. I would need much more information and detail, presumably from Mucci, and the circumstances at Boston’s Logan Airport in August of 2008 to be more precise. There was some evidence introduced regarding the nature and extent of refrigeration facilities at Logan Airport, but the evidence was fraught with hearsay. Although allowed to be introduced, it was not clear, consistent or helpful. It cannot be given any significant weight. It does not assist in determining if sufficient refrigeration space was available to house the Boston Shipment during August 12, 13 and 14, 2008.

61I find that Porrone is liable for the damages arising out of the delay in picking up the Boston Shipment regardless of whether it was to be picked up during the evening of August 12, 2008 as maintained by JAG or in the morning of August 13, 2008 as maintained by Porrone. The situation may have been brought about by Mucci, but it certainly was not the fault of JAG in any way. On this point, I am prepared to accept the evidence of Nicole Adolphe on behalf of Porrone and find that the pick up of the Boston Shipment was never agreed to take place on the evening of August 12th, but that as a result of the drop offs that Porrone had to make, if all went well, the earliest that the pick would have taken place would have been during the morning of August 13th. It follows therefore, that Porrone cannot be held responsible for any damage that might have occurred during the evening of August 12 and prior to the anticipated pick up in the morning of August 13.

62I also find that JAG, who had an obligation to mitigate the losses, and to a lesser extent, Porrone, both completely and totally failed to make any attempt to mitigate the losses and therefore must each bear a share of the losses.

63Having found that both of the parties, JAG and Porrone, contributed to the losses and damages, I must apportion the degree of such contribution as between these parties. I must apportion liability for the damages based on the evidence and avoid as much as possible any supposition and speculation.

64In circumstances such as this, I find some guidance from external sources such as the Negligence Act, R.S.O. 1990, c.N.1, s.3 and 4 which read as follows:

3. In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.

4. If it is not practicable to determine the respective degree of fault or negligence as between any parties to an action, such parties shall be deemed to be equally at fault or negligent.

5. This is precisely the circumstance in this case. This Court is being called upon to apportion the damages in proportion to the degree of fault, but it is not practicable to determine the respective degree of fault as between the parties to this action. The loss is primarily the responsibility of Porrone, but the damages occurred as a result of the delay which may, or may not, have been able to be avoided or minimized. The failure to mitigate is attributable to both parties, but to a greater extent to JAG as the party sustaining the loss. Furthermore, the degree or amount of damage that can be attributed to each period identified in paragraph 59 above would be pure speculation. There was no evidence as to how fast or slow the peppers spoiled when they were left unrefrigerated from approximately 8:30 p.m. on August 12, 2008 to approximately 3:00 p.m. on August 14, 2008 on a dock or in the warehouse of Boston’s Logan Airport.

6. Accordingly, applying the principles contained in sections 3 and 4 of the Negligence Act , the liability for the loss of peppers in the sum of $28,850.50 is apportioned equally. Therefore, the Defendant (JAG) is, subject to the Plaintiff’s Claim, entitled to a Judgment against the Plaintiff (Porrone) for one-half of the amount of its damages in the sum of $14,425.25 together with interest pursuant to the Courts of Justice Act .

67It must be noted that it is the damage amount of $28,850.50 that is being equally apportioned and not the claim amount of $25,000.00. In doing so, I apply the conclusions of the Divisional Court in Qubti v. Ontario Jockey Club (2003), 2002 18795 (ON SCDC) , 62 O.R. (3d) 290. This Court can find and deal with damages in excess of $25,000.00, but it cannot award greater than $25,000.00. It is the final amount of the award that determines the appropriate forum and not the amount of the damages prior to any deductions or apportionment.

68There will be a single Judgment in favour of JAG in the net sum of $8,025.25 plus pre-judgment interest pursuant to the Courts of Justice Act from September 1, 2008 at 5% and post-judgment interest at 3%.

69I am inclined to make no order as to costs as the Plaintiff’s Claim, which was entirely successful was not contested or at issue and did not involve much, if any, Court time, but the entire Trial focused on the Defendant’s Claim in which liability for the damages was equally apportioned.

70If either party wishes the opportunity to make submissions as to why there ought to be a different disposition of costs, they may do so by notifying the opposing party and the Court Co-Ordinator within 21 days of the release of this decision and in which case, the Court Co-Ordinator shall place this matter on a future Trial docket when I am scheduled to preside in order to hear cost submissions.

Deputy Judge James Branoff