



COURT OF APPEAL FOR ONTARIO

CITATION:
Heydary
    Hamilton PC v. Bay St. Documents Inc., 2012 ONCA 832

DATE: 20121128

DOCKET: C54945

Blair, Rouleau and Tulloch JJ.A.

BETWEEN

Heydary Hamilton PC

Plaintiff (Respondent)

and

Bay St. Documents Systems Inc., Xerox Canada Ltd.
    and
De Lage Landen Financial Services Canada Inc.

Defendants (Appellant)

AND BETWEEN

De Lage Landen Financial Services Canada Inc.

Plaintiff by Counterclaim

(Appellant)

and

Heydary Hamilton PC and
    Heydary Hamilton Professional Corporation

Defendants to
    the Counterclaim

(Respondents)

Micheal Simaan, for the appellant De Lage Landen
    Financial Services Can. Inc.

David K. Alderson, for the respondent Heydary Hamilton
    PC

Heard and released orally: November 19, 2012

On appeal from the judgment of Justice J. Wilson of the Superior
    Court of Justice, dated December 22, 2011.

ENDORSEMENT

[1]

The appellant appeals the dismissal of its summary judgment motion
    whereby it sought dismissal of the respondents claim and judgment on its
    counterclaim. The appellant also appeals the dismissal of its counterclaim.

[2]

In the present action, the respondent alleges that it was sold defective
    equipment by Xerox and its agent, Bay St. Documents Inc. The appellant financed
    the respondents purchase by way of an equipment lease (the lease agreement).
    It counterclaimed, alleging default under the lease agreement.

[3]

The motion judge held that no contract had been entered into between the
    appellant and respondent, either because the offer to lease had elapsed or was
    vitiated by events that intervened between the offer and acceptance. The
    respondent signed the proposed lease agreement on November 19, 2008, but the
    appellant did not sign and return it until sometime in January or February
    2009. The motion judge considered this to have been an unreasonable length of
    time. Additionally, during the period between November 19, 2009 and February
    2009, the equipment had come to appear defective. In the motion judges view, these
    defects vitiated the respondents offer before it was accepted by the appellant.

[4]

We disagree with the motion judges conclusion. On the issue of delay,
    although the appellant did not sign the lease agreement upon receipt and did
    not promptly return a signed copy by the respondent, there remains at minimum a
    triable issue as to whether the contract was accepted by conduct. At common
    law, an offer can be accepted by conduct if a) the conduct was performed with a
    view to acceptance of the offer and not for some other motive and b) the
    conduct was intended to serve as acceptance of the offer in question: G.H.L.
    Fridman,
The Law of Contracts in Canada
at p. 52.

[5]

In the present case, the funds advanced pursuant to the lease agreement
    were used to finance part of the buyout of the respondents equipment lease for
    the Ricoh equipment being replaced, and to finance the purchase and delivery of
    Xerox equipment selected by the respondent. The advances were made before the
    respondent signed the lease. It is tenable that these acts were done with a
    view to accepting the offer and were, indeed, intended to be an acceptance of
    the offer.

[6]

With respect to the submission that the offer had been vitiated due to
    an intervening event, we also disagree. There is at least a triable issue as to
    whether there was a change in the condition of the goods after the respondent
    signed the lease agreement.

[7]

Unilateral mistake and unconscionability were also raised by the
    respondent as constituting a defence to the appellants contractual claims. The
    motion judge was satisfied that there was sufficient conflicting evidence that
    a trial was the most suitable medium for resolving these issues. We would not
    interfere with that finding.

[8]

Although we agree that the existence of a contract may, generally, be an
    issue suited for summary judgment, we do not think the present matter
    constitutes such a case. The arguments raised in this appeal indicate that
    there might be a valid and enforceable contract, thus presenting a chance of
    success to the counterclaim. However, this issue can only be fairly and justly
    resolved by means of a trial. In the present case, the allegations impugn the
    role and involvement of Bay St. Documents Inc. in the transactions. Whether
    there was an offer and acceptance turns on an assessment of the parties
    intentions at various points in the negotiations. Such an assessment is a
    matter best determined at trial.

[9]

For these reasons, we would allow the appeal, set aside the judgment and
    substitute a dismissal of the appellants summary judgment motion.

[10]

Costs
    of the motion below are in the cause, in an amount to be determined by the
    trial judge. The appellant is entitled to its costs of the appeal fixed in the
    amount of $12,500 inclusive of disbursements and all applicable taxes payable
    forthwith.

R.A.
    Blair J.A.

Paul
    Rouleau J.A.

M.H.
    Tulloch J.A.


