



COURT OF APPEAL FOR ONTARIO

CITATION: Tender Choice Foods Inc. v. Planet Energy (Ontario)
    Corp., 2016 ONCA 192

DATE: 20160307

DOCKET: C60619

Laskin, MacFarland and Roberts JJ.A.

BETWEEN

Tender Choice Foods Inc.

Plaintiff (Appellant)

and

Planet Energy (Ontario) Corp.

Defendant (Respondent)

Louis A. Frapporti, for the appellant

Dan Murdoch and James Wilson, for the respondent

Heard and released orally:  March 1, 2016

On appeal from the judgment of Justice Harrison S. Arrell
    of the Superior Court of Justice, dated May 22, 2015.

ENDORSEMENT

[1]

The appellant sued the respondent for a declaration that the contract
    between the parties is rescinded and for damages for negligence and negligent
    misrepresentation. The appellant is a family-owned meat processing company and
    the defendant a retailer of electrical and natural gas supply.

[2]

In April 2008, the respondent contacted the appellant with a view to
    selling the appellant a fixed price electrical contract. As the trial judge
    noted, electrical costs are a significant expense for the appellant and were
    constantly increasing.  He accepted the evidence of the respondent to the
    effect that the appellant wanted to contain its costs and have a predictable
    amount going forward that they could accurately budget for and no longer have
    to worry about the fluctuations in those costs.

[3]

In accepting that evidence, the trial judge rejected the evidence of the
    appellant that the respondent had misrepresented to it that the electrical
    costs would continue to escalate and that they would save money over the
    five-year term of the proposed fixed price contract. And as the trial judge
    noted in his reasons, any views expressed by Allan were mere opinion or
    expectations honestly held, that the pricing of electricity would likely
    continue to increase as that was the prevailing opinion at the time. The trial
    judge further concluded that the representatives of the appellants in any event
    did not rely on any statements made by Mr. Allan.

[4]

A proposal was presented and the appellant signed the contract whereby
    it would be provided with electricity at a specific rate. The trial judge
    accepted the evidence of Mr. Allan, the representative of the respondent,
    that he discussed and explained all of the terms of the contract with the
    appellants representatives and answered their questions and in doing so,
    rejected their assertions to the contrary.

[5]

During a subsequent telephone call (the reaffirmation call) from a
    different representative of the respondent to Michael Paletta of the appellant
     which telephone call was recorded with the consent of Mr. Paletta  Mr.
    Paletta confirmed that the terms of the contract had been fully explained to
    him and that he had no questions and agreed with its terms.  In addition, the
    contract itself provided a whole agreement clause, a clause to the effect that
    no representations other than those that were contained in the contract had
    been made and provided specifically that the price could go up or down over the
    course of the contract.

[6]

The evidence of the appellants representatives was problematic and
    inconsistent. The trial judge concluded that the appellant entered the contract
    because it felt it was a good bet. He concluded there was no credible
    evidence that Mr. Allan or the defendant was acting in anyway dishonestly.
    There was no evidence of bad faith and they did not lie or knowingly mislead.

[7]

He rejected the evidence of the appellants representatives that they were
    totally ignorant of the fixed price contract given their experience and
    sophistication. He specifically rejected Angelo Palettas accusation that Allan
    had promised him a sure thing. To the contrary, the trial judge accepted the
    evidence of all of the witnesses who confirmed that Allan had discussed with
    them the possibility of prices going down during the term of the contract and
    that they would pay more for electricity if that happened. Few were forecasting
    the significant downturn in the economy that occurred in the fall of 2008 that
    resulted in the decline in energy prices. The result of that downturn was that
    the appellant, because of the contract, was paying more for electricity than it
    would have paid in its absence.

[8]

In this court, the appellant essentially takes issue with the trial
    judges factual findings. Those findings are entitled to deference in this
    court, and absent palpable and overriding error, this court will not intervene.
    Even if the respondent owed the appellant any duty of care, it was met in this
    case on the factual findings of the trial judge, which are supported in the
    evidence.

[9]

The trial judge concluded that the respondent had not in any way misled
    the appellants representatives. The terms of the contract had been fully explained
    to them, including an explanation that if the price of electricity dropped,
    they would pay more by virtue of the contract. He rejected Angelo Palettas
    evidence that Mr. Allan had told him the contract was a sure thing in terms of
    saving them the cost of electricity. In general terms, he found the evidence of
    the representatives of the appellant lacked credibility and he went on and
    dismissed all claims. We would not interfere with this finding.

[10]

The
    appeal is dismissed.

[11]

Costs
    to the respondent fixed in the amount of $25,000 plus disbursements of
    $9,337.96 all inclusive.

John
    Laskin J.A.

J.
    MacFarland J.A.

L.B.
    Roberts J.A.


