



COURT OF APPEAL FOR ONTARIO

CITATION:
Nexus Solutions Inc. v. CEM
    Specialties Inc., 2012 ONCA 38

DATE: 20120119

DOCKET: C52467

Goudge, Epstein JJ.A., and Newbould J. (
ad
    hoc
)

BETWEEN

Nexus Solutions Inc.

Plaintiff (Appellant)

and

CEM Specialties Inc.
and Ontario Power Generation Inc.

Defendants (Respondent in appeal)

Scott Gallagher, for the appellant

Ross Nicholson, for the respondent

Heard: January 19, 2012

On appeal from the judgment of Justice W.A. Jenkins of
    the Superior Court of Justice, dated June 29, 2010.

APPEAL
    BOOK ENDORSEMENT

[1]

The appellant first argues that the trial judge erred in failing
    to find that a preliminary contract was concluded when Nexus submitted its
    proposal to CEMSI thereby accepting a CEMSI offer to, in good faith, support
    Nexus proposal.

[2]

We do not agree.  The trial judge found as a fact that the
    pattern of conduct between these parties required a purchase order to form a
    contract.  There was a clear basis in the evidence for doing so.  We find no
    palpable and overriding error in the trial judges conclusion that here there
    was no preliminary contract between the parties.

[3]

Secondly, the appellant argues that an oral contract was formed
    in a December 22, 2004 phone call.  Again the appellant faces an insurmountable
    finding of fact, in our view.  The trial judge carefully reviewed the evidence
    of the call and concluded that it did not support a finding of offer and
    acceptance.  There was a clear basis for that on the evidence and we see no
    error in his conclusion.  There is no basis for us to set it aside here.

[4]

The appeal is dismissed.  The respondent is entitled to partial
    indemnity costs fixed at $15,000 inclusive of disbursements and applicable
    taxes.


