McAllister v. Dunsmith International Inc.
The trial judge erred by refusing to accept the appellant's uncontradicted estimate of damages after finding entitlement to an additional 2.5% commission, and erred in holding the appellant could not redirect commissions where the direction to the numbered company was revocable; appeal allowed, trial judgment set...
Source-derived case information.
- Citation
- C25299
- Parties
- Appellant: Joseph McAllister; Appellant: 733699 Ontario Limited; Respondent: Dunsmith International (1986) Inc.
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 22 October 1998
- Procedural Posture
- Civil Appeal / Court of Appeal Decision
- Outcome
- Appeal allowed; trial judgment set aside; appellant awarded damages and pre‑judgment interest; costs to appellant subject to offers to settle.
- Legal Topics
- Damages, Commissions, Assignment and Third‑party Payment Directions, Pre‑judgment Interest, Costs, Evidence on Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph McAllister
Appellant
733699 Ontario Limited
Appellant
Dunsmith International (1986) Inc.
Respondent
Procedural Posture
Civil Appeal / Court of Appeal Decision
Legal Issues
- 1 Whether the trial judge erred in failing to award damages
- 2 Whether the trial judge erred in holding the appellant could not redirect commissions to himself
Ratio Decidendi
The trial judge erred by refusing to accept the appellant's uncontradicted estimate of damages after finding entitlement to an additional 2.5% commission, and erred in holding the appellant could not redirect commissions where the direction to the numbered company was revocable; appeal allowed, trial judgment set aside, damages of $39,952 awarded plus pre‑judgment interest and costs to the appellant subject to offers to settle.
Court Disposition
Appeal allowed; trial judgment set aside; appellant awarded damages and pre‑judgment interest; costs to appellant subject to offers to settle.
Orders
- Appeal allowed
- Judgment of Simmons J. set aside
Full Case Text
Judgment text and source record
1 paragraphs
McAllister v. Dunsmith International Inc. Collection Decisions of the Court of Appeal Date 1998-10-22 Docket numbers C25299 Judges Carthy, James Joseph; Laskin, John Ivan; Goudge, Stephen Thomas Subject Civil Decision Content Date: 19981022 Docket: C25299 COURT OF APPEAL FOR ONTARIO RE: JOSEPH McALLISTER and 733699 ONTARIO LIMITED (Appellants) and DUNSMITH INTERNATIONAL (1986) INC. (Respondent) BEFORE: CARTHY, LASKIN AND GOUDGE JJ.A. COUNSEL: Rahul Shastri for the appellant Marek Z. Tufman for the respondent HEARD: October 21, 1998 ENDORSEMENT [1] This appeal raises two issues: first, did the trial judge err in failing to award damages, and second, did she err in holding that the appellant McAllister could not redirect the commissions to himself? [2] In our view, the trial judge erred on both issues. The appellant gave some evidence of his damages. Admittedly, that evidence was not as precise as it should have been. However, the respondent did not contest the appellant's estimate and offered no evidence of its own though undoubtedly it had the accurate figures in its own records. The appellant testified that, if anything, his estimate was low and the respondent's silence suggests that was likely the case. Once the trial judge found that the appellant was entitled to a further 2 1/2 per cent in commissions, we think she erred in not accepting the appellant's estimate when there was no evidence to the contrary. [3] The trial judge found that the direction to the numbered company was revocable. That finding implies that the contract remained a contract between McAllister and the respondent. Thus, it was open to McAllister to redirect the commissions to himself and the trial judge erred in holding otherwise. [4] Accordingly, the appeal is allowed, the judgment of Simmons J. is set aside and in its place the appellant McAllister is awarded damages in the amount of $39,952 plus pre-judgment interest in accordance with the Courts of Justice Act. Subject to any offers to settle the appellant is entitled to his costs of the trial and of the appeal. If there is any difficulty in settling the amount of pre-judgment interest we may be spoken to.