



COURT OF APPEAL FOR ONTARIO

CITATION: Biosweep Canada Corporation v. 2314515 Ontario
    Inc.,

2017 ONCA 508

DATE: 20170616

DOCKET: C63411

MacPherson, Blair and MacFarland JJ.A.

BETWEEN

Biosweep Canada Corporation

Appellant (Plaintiff)

and

2314515 Ontario Inc.

Respondent (Defendant)

Brian N. Radnoff, for the appellant

No one appearing for the respondent

Heard: June 13, 2017

On appeal from the order of Justice Sean F. Dunphy of the
    Superior Court of Justice, dated February 10, 2017.

REASONS FOR DECISION

[1]

We are not persuaded that the trial judge made any error in dismissing
    the balance of the appellants claims.

[2]

The obligation to return the equipment on termination of the agreement
    at paragraph 7D of the licence agreement was stated to be the subject to
    paragraph 4A of the agreement.

[3]

Paragraph 4A gives BSCA nothing more than a first option to assume any
    and all Biosweep equipment owned by 231 at the time the agreement is terminated.
    That clause went on the provide that the option to purchase the Biosweep
    Equipment shall be exercised by BSCA within 60 days following the termination
    of this agreement by notice in writing by BSCA to 231 of its intention to purchase
    the said Biosweep Equipment.

[4]

The paragraph further provides: upon receipt of notice of BSCA
    intention to purchase the said BioSweep Equipment, 231 shall deliver the said
    BioSweep Equipment owned to BSCA forthwith

[5]

As the motion judge noted in his endorsement, the appellant did not
    serve any written notice of its intention to purchase the equipment as required
    by the term of its agreement.

[6]

The letter dated February 26, 2016 is silent in respect of the equipment
    and counsels letter dated January 17, 2017 was sent long after the 60 day
    notice period had passed.

[7]

The equipment had been purchased outright by the respondent subject only
    to the reserved option. There is nothing in the agreement that specifically
    prohibits the use of the equipment on the expiry of the agreement, only the
    provision of services.

[8]

Accordingly, we agree with the motion judges conclusion that the claims
    for conversion and detinue for the return of the equipment cannot succeed.

[9]

Damages must be proved and here there is a dearth of evidence to support
    the claim for damages in relation to the torts of passing off, unjust
    enrichment and unlawful interference with economic interests. Even if we accept
    that the deemed admissions in the Statement of Claim establish liability, the
    evidence put forward by the appellant at its very highest is no more than pure
    speculation and guess work. There is no independent evidence in relation to the
    damage claim at all. There is only the opinion of one of the principals of the
    appellant based on what he considered to be a comparable licensed operation
    in British Columbia.

[10]

The
    appeal is dismissed.

J.C. MacPherson
    J.A.

R.A. Blair J.A.

J. MacFarland J.A.


