Viva voce evidence was contradicted by documentary evidence as well as conduct of parties

Contracts - Parties to Contract - Miscellaneous

Plaintiff supplied construction equipment to defendant numbered company. AG was one of directors of numbered company, and was also operations and construction manager of defendant T Corp which operated as T Construction. Contract was signed by defendant AG on behalf of numbered company “operating as” T Construction. With one exception, all documentation relating to equipment supplied and all invoices sent by plaintiff under contract were addressed to numbered company “operating as” T Construction Plaintiff's invoices were not paid. Plaintiff brought action for damages for unpaid invoices against numbered company and T Corp as well as against AG and SiG, who was director of T Corp, and SyG, who was director of numbered company. Defendants took position that T Corp was not liable for breach of contract as it was not party to contract. Plaintiff brought motion for summary judgment against defendants. Motion granted as against numbered company, T Corp and AG but dismissed as against SiG and SyG. T Corp and AG appealed on basis motion judge erred in determining that there was no genuine issue for trial and that litigation turned on findings of credibility, specifically of AG in denying T Corp had been listed as party to credit application and agreement when he signed it. Appeal dismissed. Appeal was without merit. Motion judge gave careful reasons for her findings supported by evidence that was before her. Motion judge rejected the T Corp’s and AG`s evidence, which was contradicted by documentary evidence as well as conduct of parties in acting in concert in construction project, using equipment supplied by plaintiff and receiving construction funds. Motion judge found numbered company had subcontracting relationship with T Corp and AG had requisite knowledge of transactions and assented and acquiesced in them. Motion judge was entitled to make these findings, and her factual findings were entitled to deference.

G. Cooper Equipment Rentals Limited v. 2208011 Ontario Limited (Trifield Construction) (2019), 2019 CarswellOnt 9374, 2019 ONCA 475, M. Tulloch J.A., L.B. Roberts J.A., and B.W. Miller J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 15443, 2018 ONSC 5512, J. Copeland J. (Ont. S.C.J.).

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