



COURT OF APPEAL FOR ONTARIO

CITATION: Suhaag Jewellers Ltd. v. Alarm Factory Inc. (AFC
    Advance Integration), 2016 ONCA 33

DATE: 20160113

DOCKET: C60662

Juriansz, Hourigan and Brown JJ.A.

BETWEEN

Suhaag Jewellers Ltd.

Plaintiff (Appellant)

and

The Alarm Factory Inc. carrying on business as
    AFC Advance Integration

Defendant (Respondent)

Marek Z. Tufman and Eleonora Izmaylov, for the appellant

Christopher R. Dunn and Jordan M. Black, for the
    respondent

Heard and released orally: January 8, 2016

On appeal from the judgment of Justice James F. Diamond
    of the Superior Court of Justice, dated June 4, 2015.

ENDORSEMENT

[1]

The appellant seeks to set aside summary judgment dismissing its action against
    the respondent seeking damages arising out of a theft from the appellants
    jewelry business. The respondent had supplied security and alarm monitoring
    services to the appellant. In the action, the appellant claims the system
    failed when it was robbed.

[2]

The motion judge granted summary judgment because the contract included
    an exculpatory clause that noted the possibility the system might fail,
    recommended that the customer obtain a separate insurance policy to cover
    property loss and provided that the respondent would not be liable in any way
    for any loss arising from the provision of the products and services, no matter
    how caused.

[3]

The exculpatory clause is part of a commercial contract between two
    corporate entities. The motion judge properly granted summary judgment even
    though there were conflicting versions of the negotiation of the contract. If
    the appellants version were accepted entirely, there would still be no genuine
    issue requiring a trial. On the appellants evidence, it is not arguable that
    the appellant was induced to enter the contract by a misrepresentation. On the appellants
    evidence, the only material representation was that the contract was a standard
    agreement and the appellant executed the contract.

[4]

The motion judges decision is entirely consistent with this courts
    decision in
Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection
    Co.
, [1997] O.J. No. 2359. At para. 32
    of
that case, the court said:

The trial judge held that it was the defendants responsibility
    to bring the clause to the specific attention of the plaintiff and to explain
    its effect. Not to have done so, he found, constituted an unacceptable
    commercial practice. As I view the matter, there was no special relationship
    existing between these parties that imposed any such obligation on the
    defendant. This is an ordinary commercial contract between business people.[I]n
    this commercial setting, in the absence of fraud or other improper conduct
    inducing the plaintiff to enter the contract, the onus must rest upon the
    plaintiff to review the document and satisfy itself of its advantages and
    disadvantages before signing it. There is no justification for shifting the
    plaintiff's responsibility to act with elementary prudence onto the defendant.

[5]

The estoppel argument fails for the same reason, that there was no
    misrepresentation on the evidence.

[6]

The appeal is dismissed. Costs are fixed in the amount of $15,000, all
    inclusive as agreed by counsel.

R.G.
    Juriansz J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


