





CITATION:
Accent Metals Inc. v. Stelfab Niagara
          Ltd., 2011 ONCA 691



DATE: 20111108



DOCKET: C51679



COURT OF APPEAL FOR ONTARIO



Juriansz, Rouleau and Watt JJ.A.



BETWEEN



Accent Metals Inc.



Plaintiff (Respondent)



and



Stelfab Niagara Ltd.



Defendant (Appellant)



Michael B. Miller and Michael Arbutina, for the appellant



Rosemary Fisher, for the respondent



Heard and released orally:
October 21, 2011



On appeal from the judgment of Justice C. Raymond Harris of
          the Superior Court of Justice, dated January 22, 2010.



ENDORSEMENT



[1]

The appellant argues that the trial judge erred in refusing an
    adjournment of the trial due to the late disclosure of a schematic drawing of
    the Dustex job.  We disagree.  Adjournment decisions are due deference.  Though
    the trial judge was admittedly brief in his dismissal of the request, that
    dismissal came after hearing the submissions of counsel and taking a recess to
    consider the matter.

[2]

In our view, the appellant suffered no prejudice as a result of the late
    disclosure and the refusal of the adjournment.  The fresh evidence the
    appellant seeks to file, similarly in our view, does not show that it had
    suffered any prejudice.

[3]

The second issue is the appellants claim that the trial judge made only
    a blanket finding of credibility.  We would not give effect to this ground of
    appeal.  Though it is true that the trial judge states that he preferred the
    evidence of Mr. Cadieux, over that of Mr. Morganelli, his analysis does not
    begin or end with that single statement.  Throughout the judgment, the trial
    judge supported his credibility findings with references to other aspects of
    the evidence.

[4]

We also see no merit in the submission that the trial judge erred in
    having failed to rule that the amendment to the interest rate claimed in the
    statement of claim was prevented because of the passage of a limitation
    period.  The change in the interest rate claimed does not represent an entirely
    new claim, but rather a change to a component of an existing claim for monies
    owing.  That claim was filed within the limitation period.

[5]

We also conclude that the argument that the parties had not agreed to an
    18 per cent interest rate must fail.  Although it appears that the trial judge
    erred when he stated that the credit agreement had been signed by both parties,
    we nonetheless see no error in his conclusion that there was an agreement to
    pay interest.  The credit application showing an 18 per cent rate was completed
    and submitted by the appellants bookkeeper.  The respondents evidence was not
    that the credit application had been scrapped, but rather, that it had not been
    accepted as written.  The appellant did not pay for the goods as required and
    because of the default, it ended up in a debtor/creditor relationship with the
    respondent.  There was a sufficient basis on this record for the trial judges
    conclusion that there was agreement on the 18 percent credit terms on overdue
    accounts.

[6]

Lastly on the issue of costs, the appellant is once again faced with the
    high threshold needed to demonstrate that appellate intervention is warranted. 
    While we agree that the costs award seems high, particularly in comparison to
    the principal amount awarded, there is no basis for finding that it is plainly
    wrong, or that the trial judge committed an error in principle in making his
    award.

[7]

We also dismiss the application to file fresh evidence.  In our view
    that evidence is of limited probative value in view of the parties position at
    trial that the pricing of the Dustex job was based on weight.  It would not
    have affected the outcome.

[8]

In conclusion, the appeal is dismissed.  Costs fixed in the amount of
    $15,000 inclusive of disbursements and taxes.

R.G.
    Juriansz J.A.

Paul
    Rouleau J.A.

David
    Watt J.A.


