



COURT OF APPEAL FOR ONTARIO

CITATION: Chuang v. Toyota Canada Inc., 2016
    ONCA 852

DATE: 20161110

DOCKET: M46812 (C60102)

Doherty, MacPherson and Miller JJ.A.

BETWEEN

Dr. Sylvester Chuang, HSC Holdings Inc.,
    Transoriental Fine Cars Ltd., 1405768 Ontario Limited and Ontasian Enterprises
    Inc.

Plaintiffs

(Appellants/Respondents
    by Cross-Appeal)

and

Toyota Canada Inc.

Defendant

(Respondent/Appellant by Cross-Appeal)

Fred A. Platt, for the appellants/respondents by
    cross-appeal

Timothy Pinos, for the respondent/appellant by
    cross-appeal

Heard: In writing

ENDORSEMENT

[1]

The appellants Dr. Sylvester Chuang and several related companies seek
    to re-open their appeal to this court of the decision of Spence J. of the
    Superior Court of Justice. The trial judge interpreted a commercial contract
    between the Chuang plaintiffs and the corporate defendant Toyota Canada Inc.
    (Toyota). Based on his interpretation of the contract, the trial judge
    dismissed the Chuang action:
Chuang v. Toyota Canada Inc.
, 2015 ONSC
    885.

[2]

The central issue at trial was whether Toyotas termination of the
    contract was reasonable. The trial judge held that it was not, but went on to
    hold that an exclusion clause referring to Toyotas exercise of its termination
    rights protected Toyota from any obligation to pay damages or other losses
    caused to Dr. Chuang by termination of the agreement.

[3]

This court dismissed the appeal:
Chuang v. Toyota Canada Inc.
, 2016
    ONCA 584.

[4]

Now the appellants, with different counsel than trial and appeal
    counsel, seek to re-open the appeal on an entirely different ground not argued
    in the trial court or this court. The appellants say that Toyota did not
    terminate the contract; rather it repudiated it and a proper legal analysis
    relating to the law of repudiation of a contract would lead to a different
    result.

[5]

The motion to re-open the appeal in this case must fail. The legal
    theory relating to repudiation was not raised at trial; indeed the word
    repudiation is not employed in the Statement of Claim. Nor was it advanced as
    a legal argument. In his opening argument, the plaintiffs trial counsel said:

Its the plaintiffs position, Your
    Honour that Toyotas conduct was tantamount to a breach of contract; that it
    acted unreasonably and in bad faith in
terminating
the amended LOC and
    that they breached the very terms of the LOC by failing to give appropriate
    notice; and in any event they cant rely on their own conduct in misleading the
    Plaintiffs, and that as a result of their wrongful
termination
the
    Plaintiffs are entitled to damages. [Emphasis added.]

[6]

The same point applies on the appeal. In both written and oral argument,
    the repudiation argument was entirely absent. As explained by LHeureux-Dubé
    J. in
R. v. Brown
, [1993] 2 S.C.R. 918, at p. 923:

Courts have long frowned on the practice of raising new
    arguments on appeal. The concerns are two-fold: first, prejudice to the other
    side caused by the lack of opportunity to respond and adduce evidence at trial
    and second, the lack of a sufficient record upon which to make the findings of
    fact necessary to properly rule on the new issue. [Citations omitted.]

While LHeureux-Dubé J. was writing in dissent, the
    majority did not take issue with this part of her judgment. See also:
College
    of Optometrists of Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses)
,
    2008 ONCA 685, 93 O.R. (3d) 139, at para. 90 and
Kaiman v. Graham
,
    2009 ONCA 77, 245 O.A.C. 130, at para. 18.

[7]

A party seeking to re-open an appeal after the appeal decision has been
    rendered faces a high hurdle. After more than 10 years of litigation, it would
    be unfair to permit the appellants to re-open their appeal on a different legal
    issue. In
Mujagic v. Kamps
, 2015 ONCA 360, 125 O.R. (3d) 715, at para.
    12, this court said that the power to re-open an appeal will be exercised
    sparingly and only where it is clearly in the interests of justice (citation
    omitted). It is not in the interests of justice that this appeal be re-opened.

[8]

The motion is dismissed with costs to the respondent.

Doherty J.A.

J.C. MacPherson J.A.

B.W. Miller J.A.


