



COURT OF APPEAL FOR ONTARIO

CITATION: TMS Lighting Ltd. v. KJS Transport Inc., 2017 ONCA
    427

DATE: 20170525

DOCKET: C62618

Pepall, Lauwers and Huscroft JJ.A.

BETWEEN

TMS Lighting Ltd. and Bahra Holdings Inc.

Plaintiffs (Respondents)

and

KJS Transport Inc., Kulwant Singh and 1707416
    Ontario Inc.

Defendants (Appellants)

Thomas Slade and Cory Giordano, for the appellants

Paul Pape and Joanna Nairn, for the respondents

Heard and released orally: May 23, 2017

On appeal from the judgment of Justice Tzimas of the Superior
    Court of Justice, dated August 2, 2016.

REASONS FOR DECISION

[1]

This court set aside the damages award from the
    first trial on the basis that the respondent had failed to establish damages
    due to lost productivity. A new trial was ordered, limited to assessing damages
    in trespass and nuisance. The trial judge at the second trial fixed damages in
    the amount of $532,000.

[2]

The appellant submits that respondent has, for
    the second time, failed to present a reasonable and reliable basis on which to
    quantify damages, and that the trial judge erred in misapprehending the
    evidence. The appellant submits that the respondent has not established that
    its loss was substantial, and so should be awarded only nominal damages as a
    result.

[3]

We disagree.

[4]

This court sent the matter of damages back for a
    retrial on the basis that the respondents had suffered a real wrong, which
    caused real loss.  The question was, how much of the respondents diminished
    productivity was caused by the appellant. In order to establish the quantum of
    that loss, the respondent produced evidence that it had not provided at the
    first trial and provided an expert opinion concerning the quantification of
    damages.

[5]

The trial judge found the respondents
    representatives to be credible. However, the respondents records were not
    ideal; the respondent did not have proper record-keeping systems in place. The
    business was relatively small and unsophisticated, and the CEO operated it in a
    hands-on manner. For example, he did not record requests for quotes that the
    company could not meet, nor did he implement a system to record work hours
    diverted to mitigating the effect of the dust and sand problem caused by the
    appellant.

[6]

Nonetheless, she accepted the respondents
    explanation for its documentary deficiencies and was satisfied that she had
    sufficient evidence to allow her to rule on damages. The trial judge carefully
    reviewed the evidence, including expert reports prepared for the appellant and
    the respondent. She accepted concerns raised by the appellants expert as to
    the respondents experts treatment of the recession and its impact on
    revenues. As the trial judge stated in paragraph 54:

As I noted at the beginning of this analysis,
    I have no difficulty drawing inferences about productivity from an analysis of
    lost revenues and lost net income. While I accept that it is possible to work
    backwards from an analysis of lost revenues over a period of time to draw
    inferences about productivity, lost revenues verify the existence of the loss.
    They cannot identify of distinguish between the various variables or
    explanations that might account for the loss. In this context, the best that
    the lost revenue analysis can do is to allow for the inference that some of the
    loss was caused by the recession and some by the dust. All of the evidence
    points to such a conclusion. The task then becomes one of how to estimate or
    allocate the loss for each of the two variables.

[7]

The trial judge considered gaps in the evidence
    and acknowledged the impossibility of mathematical precision. She factored in
    the impact of the recession and the differential between Canadian and US
    markets and the evidence on sales and lost revenues. She reached a figure of
    $532,000, which she treated as a global award, covering damages for both
    nuisance and trespass.

[8]

In our view, the trial judge did not err. Her
    decision on damages is entitled to deference. There is no basis for this court
    to interfere.

[9]

The appeal is dismissed.

[10]

The respondent is entitled to costs of $15,000
    inclusive of taxes and disbursements.

S.E.
    Pepall J.A.

P.
    Lauwers J.A.

Grant
    Huscroft J.A.


