





CITATION:
Kobes Nurseries Inc. v. Convery, 2011 ONCA
          662



DATE: 20111021



DOCKET: C53046



COURT OF APPEAL FOR ONTARIO



MacPherson, LaForme and Epstein JJ.A.



BETWEEN



Kobes Nurseries Inc.



Plaintiff (Respondent)



and



Darren Convery
and 1553022 Ontario Limited



Defendants (Appellant)



Umberto Sapone, for the appellant



Barry J. Carmichael, for the respondent



Heard and released orally:
October 19, 2011



On appeal from the the judgment of Justice Peter D. Lauwers of
          the Superior Court of Justice dated November 24, 2010.



ENDORSEMENT



[1]

The appellant Darren Convery appeals from the judgment of Lauwers J.
    dated 24 November 2010 finding Mr. Convery personally liable to pay the
    invoices of the respondent Kobes Nurseries Inc. totalling $78,798.25.

[2]

The appellant submits that the trial judge made a palpable and
    overriding error in finding that, as of 21 July 2008, the respondents
    contractual relationship was with Mr. Convery personally and not with the
    defendant numbered company.

[3]

We do not accept this submission.  The trial judges review of the
    conversations over the years between Mr. Convery and Mr. Kobes and of the
    relevant documentation passing between the parties, including fax transmissions,
    invoices and cheques, strongly support his conclusion that Mr. Convery did not
    bring home to the plaintiff the fact that the status under which he was
    carrying on business had changed from that of sole proprietorship to a
    corporation ...[T]he plaintiff has proven on the balance of probabilities that
    its contractual relationship was with Darren Convery personally and not with
    the numbered company.

[4]

The appeal is dismissed with costs to the respondent fixed at $5000,
    inclusive of disbursements and HST.

J.C. MacPherson
    J.A.

H.S. LaForme
    J.A.

G.J. Epstein
    J.A.


