





CITATION:
BP
          Global Special Products (America) Inc. v. Conros
          Corporation, 2011 ONCA 384





DATE:
          20110518



DOCKET:
          C51898



COURT OF APPEAL FOR ONTARIO



Goudge, Gillese and Watt JJ.A.



BETWEEN



BP Global Special Products (America) Inc.



Plaintiff (Respondent)



and



Conros Corporation



Defendant (Appellant)



Michelle Booth and David Vaillancourt, for the appellant



George G. Karayannides and Matthew J. Diskin, for the
          respondent



Heard: April 18, 2011



On appeal from the judgment of Justice Frank J. C. Newbould,
          of the Superior Court of Justice dated March 1, 2010, with reasons reported
          at 2010 ONSC 1094.



ENDORSEMENT



[1]

The appellants primary argument is that the finding of
    fact that in November 2002, the appellant took the position it would no longer
    pay the price agreed to in the contract constituted a palpable and overriding
    error by the trial judge.

[2]

Despite Ms. Booths able argument that the evidence
    relied on by the trial judge all relates to the November shipment and does not
    sustain a conclusion about the appellants future compliance, we do not agree.
    The trial judge had the context of the dealings between the parties, including
    the appellant seeking repeatedly to take lower quantities of product than the
    contract called for, and repeatedly calling for pricing below the contract
    price. Against this background, the appellants conduct concerning the November
    shipment is important, particularly that it did not accept a proposed price
    reduction (made by Mr. Sass, although without authority) but attempted to
    insist on an even greater price reduction. Its conduct left the respondent with
    the impression that in future the appellant would most likely demand further
    decreases below the agreed to contract price.

[3]

On the basis of this evidence, it was open to the trial
    judge to draw the factual inference that the appellants attitude to this
    contract was such that going forward, it was likely that they would no longer
    honour the contract price. The appellant concedes that this finding, if proper,
    constitutes repudiation.

[4]

The appellant also argues that the trial judge erred in
    finding that the respondent accepted the repudiation and communicated it
    effectively to the appellant.

[5]

Again, we do not agree. The evidence was that in the
    face of the appellant indicating that it would no longer pay the contract
    price, the respondent cancelled the November shipment and took the decision to
    pursue the appellant through litigation for the revenue lost due to this
    repudiation. The trial judge was entitled to conclude that by doing so, the
    respondent accepted the repudiation.

[6]

Nor did the trial judge err in finding that the
    respondent communicated its acceptance. Given that Mr. Nunes understood from
    the respondents communications that the cancellation of the November shipment
    meant that the respondent was ending the contract, the communication of that acceptance
    was both sufficient and effective.

[7]

The appeal must be dismissed. Costs to the respondent
    fixed at $25,000, inclusive of disbursements and applicable taxes.

S. T. Goudge
    J.A.

E. E. Gillese
    J.A.

David Watt J.A.


