CITATION: Zenex Enterprises Limited v. Pioneer Balloon Canada Limited, 2015 ONSC 3994
COURT FILE NO.: 07-CV-335466PD3
DATE: 20150619
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
ZENEX ENTERPRISES LIMITED Plaintiff
– and –
PIONEER BALLOON CANADA LIMITED, S. ROSSY NC., DOLLARAMA S.E.C., and DOLLARAMA L.P. Defendants
Michael S. Deverett for the Plaintiff
Derek Collins for the Defendants
HEARD: April 13-17, 2015
CHAPNIK J.:
[1] The parties are engaged in a contractual dispute in which the plaintiff claims a percentage of certain sales made by the one defendant remaining in the action, Pioneer Balloon Canada Limited (Pioneer).
[2] The underlying claim is based on an agreement the plaintiff alleges was reached in an exchange of correspondence or series of communications between the parties. But it is more than that, for the relationship between the parties was portrayed as somewhat of a saga, based on a longstanding business relationship between people who respected and trusted each other. Why and how that relationship soured and what has brought them to this adversarial arena tells an interesting story of how sales people and middlemen operate in our commercial world.
background
[3] This story revolves around two main characters – Howard Starr (Howard), the president of Zenex Enterprises Limited (Zenex) and Marylynn Borondy (Marylynn), salesperson for Pioneer, a wholesaler in the balloon business in Canada. Commencing in about 1997 or 1998, Marylynn on behalf of Pioneer would sell balloons to Zenex through Howard and Howard would then sell them to various retail customers, including Dollarama. It was a win-win situation for both Zenex and Pioneer.
[4] However, Zenex was also purchasing balloon products from other balloon suppliers and the evidence showed that by 2003, Pioneer’s sales to Zenex were decreasing. In June 2005, Marylynn wrote to Howard stating that Pioneer was anxious to sell more of its balloon products to Dollarama whose commercial enterprise was expanding.
[5] In 1987 or 1988, Zenex had introduced the Tilco National Inc. (Tilco) line of balloon products to Dollarama, and in 2005, Tilco was declared insolvent. Accordingly, Dollarama was considering moving its balloon business to another supplier or purchasing balloons on its own from China. At the same time, Howard was considering various options to present to Dollarama in order to fill the void. He was, for example, considering proposing his Mexican supplier and others to Dollarama, then came to the conclusion that Pioneer would be a better fit.
[6] Howard understood that time was of the essence. He also knew that there might be a problem proposing Pioneer since the writing on Pioneer’s balloon bags was not bilingual and Quebec law where Dollarama’s head office and factory were situated, required bilingual packaging on all such goods.
[7] Prior to this, Zenex, who had a signature bilingual bag, would send them to Pioneer to be filled with different types of balloons which Howard would then sell to various customers including large store chains such as Shoppers Drug Mart, Dollar Tree in the United States and others, as well as to Dollarama.
[8] It is not disputed that in December 2005, Zenex introduced Marylynn and thus, Pioneer to the principal buyer at Dollarama, John Assaly (Assaly), to make a presentation and attempt to secure Dollarama’s business. It is not disputed that in the ensuing years, Pioneer did millions of dollars of business selling its balloon packages to Dollarama. Indeed, its total sales to Dollarama for the five year period from 2006 to 2010 were $5,484,044.42 USD and sales from 2011 to 2014 approximate $700,000 USD. It is also not disputed that Zenex has not been paid any monies related to those sales.
[9] Howard claims that based on their discussions, their past history and the correspondence between the parties, the parties had an agreement that Zenex would receive 5% of the total sales made by Pioneer to Dollarama. In the alternative, Zenex claims compensation on the principle of unjust enrichment.
[10] Pioneer denies that such an agreement was reached and takes the position that, though Howard is entitled to some amount of compensation, this would not exceed $5,000 CAD since he did not participate in the negotiations, packaging or sales to Dollarama from 2006 to the present.
the issues
Was there an agreement for commission reached between the parties?
If not, was Pioneer unjustly enriched to the detriment of Zenex and does the law of unjust enrichment apply in this situation?
If either above items is answered in the affirmative, what are the damages?
1. Was there an agreement?
[11] In order to tackle this question, it is important to understand the business of the parties as it relates to payment of commissions in general, and then the evidence as it pertains to this particular endeavour.
a) Zenex
[12] Zenex has been an importer and distributor of thousands of products since its incorporation in 1985. In 2005, Howard, as president, opened a new warehouse and was selling numerous products in North America and elsewhere that were sourced in other countries such as China, Taiwan, Korea and Mexico. Zenex sells various products to Walmart, Shoppers Drug Mart, Loblaws and Canadian Tire, as well as to Dollarama and others. In 2005, Howard began to hire sales agents to show his printed catalogues to potential customers throughout Canada.
[13] The agents would take orders for some of Zenex’s products and once the goods were shipped to the customer, Zenex paid the salespeople a commission. The best example of this is portrayed in Howard’s relationship with a longtime sales agent, Charles Silverman (Charles). Charles has worked as a commission sales agent for Howard since 1986. Through his Quebec company, he also sells products to various independent and small and large chain stores.
[14] It was Charles who initially introduced Zenex to the principals of Dollarama. Zenex has paid him commission for this and for other sales made on behalf of Zenex, on the 15th of each month following the shipment of the goods to Zenex’s customers, including Dollarama. Prior to 2005, the volume of sales to Dollarama for many items such as sundries, accessories, clothes, etc., as well as balloons approximated about $1 million CAD. Typically, Charles would earn 5-8% of the commission paid on total sales made to the stores through Zenex.
[15] In 1988, Charles introduced the Tilco line of balloon products through Zenex to Dollarama. By 2005, prior to its insolvency, Tilco was shipping hundreds of thousands of balloons to Dollarama, grossing about $1 million CAD in sales annually.
[16] It was Charles who informed Howard in 2005 that Dollarama was considering several options to fill orders relating to the balloon account.
[17] Charles testified that in all the time he has worked with Howard, he has never had a written contract with Zenex, and that his business relationship with Howard has always been respectful and based on trust. They continue to do business together with Charles opening doors and helping to sell Zenex’s products to various customers.
[18] In 2005, Howard asked Charles to arrange a meeting with Assaly at Dollarama to make a proposal for the balloon account. A meeting was initially scheduled for September 2005 and then rescheduled for December 28, 2005 after Assaly cancelled the September date.
[19] In the meantime, Howard strategized with Marylynn as to how to best present Pioneer’s balloon products to Assaly and to the principals at Dollarama. What he knew from Charles and from his past and present dealings with Assaly and others was that Dollarama was generally more interested in price over the quality of its products. Howard, was also concerned that the Pioneer packages (except its Disney line) were not bilingual.
[20] In the end, they decided to focus on the made-in-Canada aspect, the comparative quality of Pioneer’s balloons over those made elsewhere, Pioneer’s extensive product line and the advantages of buying a product locally rather than importing goods from China or elsewhere.
[21] When Howard was unable to attend the arranged meeting at Dollarama on December 28, 2005 due to his wife’s illness, he asked Charles to attend on his behalf. Charles picked up Marylynn and another Pioneer sales representative at the airport in Montreal (Pioneer’s factory was located in Hamilton, Ontario) and after Marylynn made the presentation, Assaly promised to get back to them. When driving them back to the airport, Charles remarked “it looks like they are going to buy. I know their reactions.”
[22] It was Howard’s evidence that he would never have had Charles set up the meeting had the parties not reached an agreement for commission. According to Howard, his arrangement with Marylynn was for payment from Pioneer to Zenex of 5% of the gross sales made to Dollarama upon receipt of payment from Dollarama whether or not Zenex’s custom bags were used to package the goods. Zenex would then pay Charles one half of the commissions earned since it was Charles who had initially introduced Zenex to Dollarama many years previously.
b) Pioneer
[23] Marylynn denies that an agreement for commission was reached between the parties; and she presents her rationale as to why such a commission is not justified.
[24] She emphasized that Howard did not attend the meetings on December 28, 2005 or in March 2006 and it was she alone who negotiated and carried out the agreement with Dollarama. Moreover, at the March meeting, she was told that since Dollarama was embarrassed by something Howard had done in the past Larry Rossy (Rossy), co-owner of the company, did not want Zenex involved in the balloon account. (It was later noted that Zenex had named Dollarama in an action against Tilco, later withdrawn).
[25] Given that Pioneer did all the work to create and package the balloon products for Dollarama, with no input from either Howard or Charles, Marylynn and Pioneer take the position that an amount of $5,000 CAD is sufficient to pay Zenex for the introduction to Dollarama, calculated at $100 per hour for 50 hours of work.
c) The “Agreement”
[26] In the absence of a written agreement, what evidence does Zenex rely upon to prove its claim for commission?
[27] According to Howard, in all his years of doing business, there has only been one instance (involving Walmart) where a written agreement came into play. The others were based upon correspondence, purchase orders and trust, as was his commission arrangement with Charles over many years.
[28] Given that he has bought and sold thousands of products to small and large stores over 25 years or so, and in light of his longstanding business relationship with Pioneer and particularly with Marylynn, it would have been common practice to proceed based on an oral agreement, past behavior and trust. Moreover, the Dollarama account provided a “huge opportunity” and would be a win-win situation for both parties. Howard emphasized that since Dollarama was his best customer and was expanding its business at the time, he never would have asked Charles to schedule a meeting there for Pioneer had an agreement for commission not been reached.
[29] When Marylynn told Howard about the “directive” made by the principals at Dollarama at the March 2006 meeting not to involve Zenex in the program, he explained to her that Dollarama was not privy to their side agreement for commission. In any event, Zenex has continued to do business with Dollarama for various lines of products to the present time and Marylynn was aware of this. In Howard’s view, the comment made by the principals at Dollarama was just a ploy to attempt to decrease the pricing on the balloon products.
[30] In summary, Marylynn articulated three main reasons prompting Pioneer to “take the course of action” it did with respect to the Dollarama account as follows:
Howard chose not to take responsibility as a sales representative. He did not service the Dollarama account in any way.
Dollarama’s principals specifically told her they didn’t want Zenex to be involved in the deal.
Pioneer spent significant funds preparing for the first order and had to lower their proposed price.
[31] In addressing the first issue, it is noted that Pioneer had no existing relationship with Dollarama in 2005, except through Zenex, whereas Zenex through Charles and Howard, had a longstanding business relationship with Dollarama which continues to this day. The difficulty that people and companies experience in order to “get in the door” with large chain stores is manifest. It is clear that, but for the introduction through Zenex, the meeting and consequent sales by Pioneer to Dollarama would likely never have occurred. The introduction in itself was, I find, significant.
[32] Marylynn attempted to downplay the role of Charles, saying he did not speak at the meeting in December 2005, that Assaly did not seem to recognize him and that he was “just a driver.” When asked about this, Charles answered, “a driver doesn’t attend private meetings.”
[33] Prior to the meeting, Howard had asked Marylynn for a copy of their price list to send to Charles. As it occurred, he may not have needed it, but clearly he was ready to participate in the meeting. Certainly, the information Charles gave to Howard and through Howard to Marylynn about the workings of Dollarama must have been invaluable to Pioneer as it was to Zenex, in obtaining the contract.
[34] Not only did Marylynn attempt to minimize Charles’ involvement, but she also maintains that Howard had little or no involvement in the process. First he did not attend the meeting in December 2005 and March 2006, and secondly, he had little or no input in the development of the balloon program.
[35] The evidence, however, is to the contrary. With regard to the meetings, the first one had been moved from September to December 28, 2005. On that date unfortunately, Howard’s wife had scheduled cancer treatment. Marylynn resisted having to attend herself on short notice and Howard talked her into proceeding with the meeting. In the end, he sent Charles to assist and she took another sales representative from Pioneer with her.
[36] By this time, Howard and Marylynn had spent “tens and tens of hours” strategizing on how best to present Pioneer’s balloon program. Howard knew how difficult it was to rearrange meetings, that time was of the essence in regard to the balloon account, and so, in his words, he did not want to “jeopardize” getting the account by cancelling the meeting. Fortunately, there was no detriment to Pioneer in the way it proceeded. As Charles remarked on the way home, “it looks like they are going to buy. I know their reactions.”
[37] Marylynn set up the second meeting for March 2006 without first checking with Howard, despite knowing his busy travel schedule. In fact, she only told Howard about it the night before it took place. In an e-mail dated February 28, 2006 she stated that she was “heading to Montreal tomorrow” and would call Howard on Friday to follow up, adding “keep your fingers crossed.”
[38] It may well be that Marylynn had decided by the March meeting, to go it alone, but she certainly did not convey this message to Howard.
[39] She also minimized his involvement in the preparation and servicing of the account. She maintains that they strategized in December 2005 prior to the December meeting but denies they did so in the summer of 2005. Given that the original meeting date was September of that year, Howard’s evidence that they spoke for “hours and hours” over the telephone during that summer discussing all aspects of the program and Pioneer’s strategy, is more credible. In her examination for discovery (at Q. 295-303), Marylynn gave these answers:
Q. Okay. Now you said that the price program that you and Howard developed.
A. Right.
Q. When did you start developing that program?
A. In December 2005.
Q. And did that take a significant amount of work to develop that program?
A. It was part of my daily work routine, it wasn’t –
Q. And what was Howard’s involvement in that price program?
A. Howard and I had strategized several times during the month of December putting together programs that we thought, um, based on Howard's experience and our capabilities, um that he thought we could secure this relationship.
Q. Okay, and other than the price program was Howard involved in other strategizing with the uh ---
A. Yes, he talked about line variety, um, colour selection.
Q. Anything else?
A. I don't think so.
Q. Distribution options - did he talk to you about that?
A. I'm sorry?
Q. Distribution options.
A. Yes, I'm sorry, yes, we did discuss distribution options.
Q. And product selection, did he talk to you about that?
A. Yes, line variety is the same as product selection.
[40] When Howard was asked about the agreement in discovery he answered at p. 36 of the transcript:
A. I would say the quote that Mary Lynn sent in December, I mean that’s the product of all our work. She said, December 2005, to me and to Charles originally what she was going to present at the meeting and you know, all the pricing and, that’s the first evidence as far as I’m concerned that there was an agreement because this is the pricing quotation that’s going to be presented. It says Dollarama all over it. It’s going to be presented by Pioneer to Dollarama and that didn’t happen in a vacuum, it happened after tens and tens of hours of work with me and Mary Lynn on the phone. So, why was she going with, you know, if there wasn’t an agreement why was she doing all this with me. (emphasis added)
[41] I accept Howard’s evidence that he spent many hours strategizing with Marylynn as to the program details and the best way to present it to Dollarama. Marylynn stated in examination, “if Howard had attended the December 2005 meeting, we would not be here today.” I find that to be quite incredible given the evidence in this case and the defence that Pioneer has mounted.
[42] The following exchange of e-mails also contradicts Marylynn’s assertions of Howard’s inaction and lack of assistance:
E-mails dated January 16 and 17, 2006, offering assistance – “let me know if Charles should try to contact [Assaly] this week.”
On January 17, 2006, in an e-mail “Re Rossy,” Howard gave Marylynn this advice: “they tend to deal with things in one shot and then move on; so you have to keep the flame alive right away and not let things get cold. … Let me know what you want me to do; Charles is also at your disposal. The best day for Charles to see John [Assaly] is usually Tuesday. John keeps that day free to see suppliers. (emphasis added)
Howard wrote Marylynn on January 23, 2006 offering for Charles to “go over and talk to John in person.”
On March 8, 2006, just prior to the meeting, Howard again wrote to Marylynn telling her the main thing he wanted to sell was the seasonal balloons – the Easter, Christmas and Halloween balloons that were Dollarama balloon programs originally.
[43] The evidence demonstrates that Howard did take responsibility and did indeed help to service the account by his actions – in making the introduction, helping to set up the program that would be sold to Dollarama and providing Marylynn with what may be termed “proprietary information” with respect to Dollarama’s needs and approach. At no point did Howard work as employee or sales agent for Pioneer. The evidence is to the contrary.
[44] The second complaint of Marylynn is rooted in the remark by Rossy at the March 2006 meeting to the effect that they did not want Zenex involved. When told about this, Howard agreed to assume a lower profile there. At the same time, he reminded Marylynn that Dollarama was not privy to their agreement for commission. He also suggested that Rossy’s comment was simply a ploy to attempt to decrease the pricing on the balloon products. The fact that Howard might have said he would clear this up with Rossy bears no importance, since both parties continued to have dealings with Dollarama to their mutual benefit. In my view, this is a bit of a red herring. It has no relevance to the question of whether the parties themselves had reached an agreement between them regarding commission.
[45] Marylynn’s third complaint revolves around the hard work and skills exerted to negotiate the price and create the program. The price they initially wanted was 48¢ CAD per package and the final negotiated price was 46¢ CAD (or 40¢ USD). There is no question that Marylynn did almost all the work through Pioneer to bring the program to completion, including making new plates and so on for some of the balloon items and negotiating the prices. However, the documents demonstrate that a sister company to Pioneer located in Mexico produced the artwork, and its invoices were added to Pioneer accounts with Dollarama. Thus, Pioneer’s billings to Dollarama increased as a result. Further, if Dollarama paid less for balloon product, Howard’s commission would be reduced accordingly.
[46] More importantly, when asked at discovery whether she had discussed the commission rate with Howard, Marylynn answered, “yes, we did talk about, you know, the standard commission rates with his sales people was five percent?” (at Q. 310).
[47] After September 2006, when the first shipment had been made to Dollarama from Pioneer, Howard pursued Marylynn for payment and became increasingly frustrated and angry by her evasive tactics. On September 8, he asked for an accounting and a regular report “so that Zenex can get the 5% commissions owed by Pioneer on sales to Rossy (re: Dollarama) to Zenex.” He asked to get the cheques on a monthly basis. Marylynn responded, saying that one order had been shipped to Dollarama and “upon payment of the invoice in full we will provide you with an agency fee.”
[48] Since this was the first time the payment was termed an “agency fee,” Howard attempted to ascertain its meaning. Then, on September 20, Marylynn wrote, “as agreed, we will send you an accounting update with each payment from Dollarama to Pioneer Balloon Canada.”
[49] Why would she provide an “accounting update” with each payment from Dollarama to Pioneer if the agreement for commission on gross sales had not been made? It appears to me that Marylynn has created a scenario to attempt to justify her position.
[50] Throughout the months of September, October and November 2006, while doing business together on other accounts, Howard became more and more anxious about his commissions while Marylynn continued to ignore his requests for payment. For example, on November 30, 2006, Howard asked when he will get “a summary of the sales and commission cheque” re: Dollarama.
[51] Not once did Marylynn ask what commission cheque he was referring to or why he would need a summary of the sales. Indeed, she asked him to lower his rate from 5% to 3% because she had to lower the package price, but Howard refused to accept the offer.
[52] I find Marylynn’s testimony to be self-serving and inconsistent. She was not a credible witness. I prefer the evidence of Howard where it diverges from that of Marylynn in any material respect.
[53] In his submissions, counsel for the defendant termed it “bizarre” that Pioneer would pay so much for an introduction. Firstly, I find that Howard did much more through Zenex than just arranging for an introduction with Dollarama, though that in itself is significant. Secondly, the defendant asks the wrong question – the issue is not whether the parties reached a “good” or even a reasonable agreement, but rather whether an agreement was reached between them.
[54] Clearly they did reach an agreement – if Pioneer obtained the account for its balloon products to be sold to Dollarama, it would pay Zenex 5% commission on all gross sales. Marylynn accepted the offer on behalf of Pioneer and they proceeded accordingly. This was a joint endeavor and a win-win situation for them both. Their agreement satisfied all the legal aspects of offer, acceptance and consideration.
[55] The defendant claimed at one stage that Marylynn had no authority to reach such an agreement but seems to have abandoned this argument at trial. In any event, I accept the evidence of Howard that over many years, he dealt only with Marylynn and he had no indication she ever had a “boss”. The evidence in this case confirms that assertion. I would have rejected this argument had it been pursued based upon Marylynn’s ostensible authority and the indoor management rule. The agreement stands.
2. UNJUST ENRICHMENT
[56] Given my findings, it is not necessary for me to consider the argument based on the equitable principle of unjust enrichment. Nevertheless, it is self-evident that Pioneer was enriched to the detriment of Zenex. Prior to their arrangement, Dollarama had been Zenex’s “largest” customer. Moreover, there is no evidence from an established category such as a valid common law, equitable or statutory obligation to deny the plaintiff recovery for his work. The plaintiff has therefore made out a prima facie case for payment.
[57] Finally, the defendant has not rebutted this presumption by showing a credible reason why Pioneer should retain these monies. Though Marylynn made efforts to do so, I have found none of her complaints to be grounded in the evidence. In my view, the defence has crafted a story that is contrary to the evidence in order to justify its actions in not paying Zenex its rightful commission. There is no juristic reason to deny the plaintiff recovery in this matter. See Garland v. Consumers’ Gas Co., [2004] 1 SCR 629, 2004 SCC 25 at para. 44-47.
[58] When asked whether it is fair that Pioneer sold over $6 million CAD in product on the Dollarama account (no evidence was provided as to its net profit) whereas Zenex has received nothing, Marylynn answered, “no, it is not fair.”
[59] As a matter of equity, that comment speaks for itself.
3. DAMAGES
[60] The statement of claim was issued on June 27, 2007 and it has taken over 7 years for the matter to come to trial. During that time, Pioneer has continued to provide balloon products to Dollarama without input from Zenex.
[61] For Zenex to claim the full 5% commission on gross sales from Pioneer to Dollarama from 2006 to 2014 would, in these particular circumstances, not be a fair or reasonable assessment of the plaintiff’s damages. It is difficult to know what the extent of input the plaintiff may have had in the ensuing years had Pioneer, through Marylynn not usurped the account in the way she did.
[62] Given the commission arrangement between Zenex and Charles, it would seem to be common practice in the industry that, once an introduction is made, commissions are paid to the “introducer” in an agreed sum so long as the account remains viable. The evidence on this point, however, as applied to Zenex and Pioneer, was less than satisfactory. Nevertheless, it is my view that a fair and reasonable assessment of damages within the reasonable expectation of the parties would be that the agreement remain in place for a 5 year period, from 2006 to 2010. It is agreed between the parties that the 5% commission for that period would be in the sum of $277,684.23 USD or $350,000 in Canadian funds and I assess the plaintiff’s damages in that amount.
costs
[63] The plaintiff has submitted a Costs Outline claiming costs on a substantial indemnity scale of $136,841.41 and for partial recovery in the amount of $84,936.08, plus disbursements of $7,083.95. The defendant’s Bill of Costs on a partial indemnity basis totals the all-inclusive sum of $46,466.84.
[64] There is one matter from prior dealings that I wish to address – the plaintiff brought a motion before the Honourable Mr. Justice Morgan on November 23, 2012 for an order for additional production of documents. The motion which was relatively complex, was dismissed in a 5-page written endorsement rendered on December 19, 2012. Paragraph 28 of the judge’s reasons reads:
The motion is dismissed. Counsel have agreed that costs should be in the cause, which I consider to be an appropriate order here.
[65] With respect, I would think that the more appropriate order, considering the reasons and decision made, as well as the general rule that “costs follow the event”, would have been to order costs to the defendant in any event of the cause. That most likely was the court’s intent.
[66] The plaintiff was wholly unsuccessful on that motion and it is left to this court to assess costs on a global basis, including those related to the said motion.
[67] It is well settled that the fixing of costs is a discretionary decision under s.131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party, the expectations of the unsuccessful party, the amount claimed and recovered, and the complexity of the issues. Overall, the court is required to consider what is "fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation for the successful party with the goal of fostering access to justice: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, [2004] O.J. No. 2634, (C.A.), at paras. 26, 37.
[68] I am aware that the plaintiff made an offer to settle the action, pursuant to rule 49.10 of the Rules of Civil Procedure, on July 12, 2010 for the amount of $100,000 plus costs. Accordingly, Zenex is entitled to its costs on a partial indemnity scale from the commencement of the action to that date and costs on a substantial indemnity scale after that date.
[69] Given the volume of material and the factual complexity of the case and taking into account the factors set out in rule 57.01 and the prevailing case law, the amounts claimed are fair, reasonable and within the reasonable expectation of the parties.
[70] Regarding the motion before Morgan J. the respondent is entitled to its claimed costs for that motion in the all-inclusive sum of $5,000 and all costs claimed by the plaintiff relating to that motion are disallowed.
[71] I leave it to the parties to calculate the amount of costs payable by Pioneer in favour of the plaintiff that are consistent with these reasons.
conclusion
[72] On the evidence in this case, I have found there was an agreement between the parties in 2006 that Zenex receive 5% of all gross sales made from Pioneer to Dollarama.
[73] Due to the actions of Marylynn, Pioneer took over the account at an early stage, denied that such an agreement existed and refused to honour it. The damages sustained by the plaintiff over a 5 year period from 2006 to December 2010 total $350,000 in Canadian funds.
[74] Judgment shall issue in favour of the plaintiff against the defendant Pioneer, for the sum of $350,000 plus prejudgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c.C.43 from the issuance of the claim on June 27, 2007 to date, and costs in an amount to be determined pursuant to these reasons.
[75] I thank both counsel for their efficient and thoughtful presentations.
CHAPNIK J.
RELEASED: June 19, 2015
CITATION: Zenex Enterprises Limited v. Pioneer Balloon Canada Limited, 2015 ONSC 3994
COURT FILE NO.: 07-CV-335466PD3
DATE: 20150619
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
ZENEX ENTERPRISES LIMITED Plaintiff
– and –
PIONEER BALLOON CANADA LIMITED, S. ROSSY NC., DOLLARAMA S.E.C., and DOLLARAMA L.P. Defendants
REASONS FOR JUDGMENT
CHAPNIK J.
RELEASED: June 19, 2015