



COURT OF APPEAL
    FOR ONTARIO

CITATION: Bone Safety Signs, LLC v. Work Zone Safety Products
    Inc., 2018 ONCA 301

DATE: 20180326

DOCKET: C64183

MacFarland, Huscroft and Nordheimer JJ.A.

BETWEEN

Bone Safety Signs, LLC

Plaintiff (Respondent)

and

Work Zone Safety
    Products Inc.

Defendant (Appellant)

Barry Yellin, for the appellant

Matthew Maurer, for the respondent

Heard and released orally:  March 22, 2018

On appeal from the judgment of Justice Patrick Monahan of
    the Superior Court of Justice, dated July 17, 2017 with reasons reported at 2017
    ONSC 4355.

REASONS FOR DECISION

[1]

The defendant appeals from the summary judgment granted by the motion
    judge that
awarded to the plaintiff the amount
    of Canadian dollars sufficient to purchase the sum of $47,301.92 (USD) together
    with interest and costs.

[2]

The appellant was a distributor of the respondents product. In late
    2015, the respondent notified the appellant that it would be increasing its
    prices effective May 1, 2016. In response, the appellant ordered a significant
    amount of product just before the price increase went into effect.  The
    respondent brought this action for payment and moved for summary judgment. The
    appellant defended the motion on the basis that the respondent had allegedly
    agreed to take back other unrelated product that had been ordered and paid for
    years before.  The appellant alleged that the respondent failed to do so and asserted
    a number of defences including an alleged failure to mitigate by the
    respondent.

[3]

The appellant also appeals against that portion of the costs award that
    granted costs to the respondent on a substantial indemnity basis from the date
    of its offer to settle.  The appellant asserts that the offer to settle did not
    comply with Rule 49 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194.

[4]

In terms of the main appeal, we find no merit to the appellants various
    complaints.  First, the motion judge correctly enunciated and properly applied
    the principles regarding when it is appropriate to grant summary judgment.  Second,
    the motion judge found that there was no factual foundation advanced by the
    appellant to support a defence of waiver.  Third, it is not clear to us how a
    duty to mitigate arises in the context of an action for goods sold and
    delivered.  However, even if such a duty did arise, the motion judge correctly
    concluded that there was, again, no factual foundation advanced by the
    appellant to support that contention.

[5]

Consequently, there is no basis for us to interfere with the summary
    judgement that was awarded.

[6]

In terms of the costs issue, the appellant contends that the offer to
    settle did not comply with Rule 49 because the offer provided for payment of
    $42,000 (USD) as opposed to providing for the payment of the amount of Canadian
    dollars required to purchase the foreign currency obligation.  Rule 49.02(1)
    allows a party to make an offer to settle on whatever terms it wishes.  The
    requirement under s. 121 of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43 regarding foreign money obligations applies only to orders of the court
    for payment of those amounts. Further, even if the appellants contention was
    technically correct, r. 49.13 permits a court to consider any offer to settle
    made in writing in exercising its discretion with respect to costs.  Consequently,
    there is also no merit to the appellants complaint regarding the costs
    determination.

Conclusion

[7]

The appeal is dismissed. Costs are awarded to the respondent fixed in
    the amount of $8,000 inclusive of disbursements and HST, as per the agreement
    of counsel.

J. MacFarland J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


