Cite as: Newfoundland Ventiliation Systems Ltd. v. Future Energy Products Ltd., ' 1990 NSCA 95 l S. C. A. NO. 0 2 3 2 3 IN THE SUPREME COURT OF NOVA SCOTIA I APPEAL DIVISION Clarke, C.J.N.S., Matthews and Chipman, JJ.A. I BETWEEN: I NEWFOUNDLAND VENTILATION SYSTEMS C.D. Bryson LIMITED for the appellant I Appellant respondent in person (Earl Caldwell) I - and - Appeal Heard: December 10, 1990 FUTURE ENERGY PRODUCTS LIMITED Judgment Delivered: I and ERLAND CALDWELL, a.k.a. EARL December 10, 1990 CALDWELL I Respondent ~ I THE COURT: Appeal dismissed per oral reasons for judgment of Matthews, J.A.; Clarke, C.J.N.S. and Chipman, J.A. concurring I I I I I l I I
I ' t The reasons for orally by: I MATTHEWS, J .A. : I After a trial on July 11, 1990, the Honourable Constance R. Glube, C.J.T.D. I the appellant against the Products Limited, finding that there was I breach of contract. She dismissed I of that defendant and as well dismissed the appellant's claims against the respondent, I that the appellant had not proven that there was fraud on his part. This appeal concerns that latter ruling I only. ~ The defendants were not represented by counsel at trial. On appeal, Mr. I own behalf. At trial, appellant's I the trial judge accepted, I that which must be proven induced by fraudulent representation I by Jones, J. as he then Slauenwhite (1972), 3 N.S.R. I 46: I "The leading case on Peek (1889), 14 App. was stated by Lord Herschell at p. l I I judgment were delivered allowed the claims of defendant, Future Energy a fundamental the counterclaims Erland Caldwell finding Caldwell appeared on his counsel argued, and that the law respecting in a claim under contract was as set out was, in Charpentier v. (2d) 42 at pp. 45 and deceit is Derry v. Cas. 337. The law 374,
- 2·-First, in order to sustain deceit, there must and nothing short of Secondly, fraud is proved when it is shown that a false representation has been made, (1) knowingly, or (2) its truth, or (3) whether it be true I have treated the distinct cases, I think an instance of the makes a statement under can have no real belief what he states. The basis for establishing is set out in the text, Vendor and Purchaser by DiCastri at p. 201, In order to succeed a contract was induced fraudulent representations, must prove: (1) That ·the complained of were made defendant; (2) That fact; ( 3) That when made, to be false or were recklessly made, without knowing whether they (4) That by reason of representations the plaintiff to enter into the contract; a reasonable time after of the falsity of the plaintiff elected to avoid the contract and accordingly repudicated it. The burden of proof in is clearly on the plaintiffs. this regard to Parna v. Limited 1971 S.C.R. 306." Thus, it was necessary to find in fact proof of the claim in fraud will fail. refused to do. She clearly ,, an action of be proof of fraud, J that will suffice. J without belief in recklessly, careless or false. Although I second and third as the third is but second, for one who such circumstances J in the truth of •I such a claim Canadian Law of I on the ground that by false and I a plaintiff representations to him by the I they were false in they were known were false or true; ~ the complained of was induced (5) That within I the discovery the representations I establishing fraud I I refer in G. & S. Properties I for the trial judge I the stated requisites or This, the trial judge I said that she was "not ,.. 'J I I
'l - 3 -I satisfied that any of those conditions have been shown to the court" . I Findings of fact must stand on appeal unless it can be established that the trial judge made some I palpable and overriding error which affected her I assessment of the facts. Stein v. The Ship •Kathy K", (1976), 2 S.C.R. 802. I After reviewing the record, considering the arguments both written and oral, and as well mindful I of the function of an appellate court in such matters, I we find no error on the part of the trial judge respecting her assessment of the facts or application '~ of the law. I In consequence, we are unanimously of the opinion that the appeal is dismissed. The respondent I informed us that he is not seeking costs: accordingly none are awarded. I I I Concurred in: Clarke, C.J.N.S. I Chipman, J.A. l [ [
1989 S.H. 67688 IN THE SUPREME COURT TRIAL DIVISION BETWEEN: NEWFOUNDLAND VENTILATION SYSTEMS - and - FUTURE ENERGY PRODUCTS ERLAND CALDWELL,a.k.a. GLUBE, C.J.T.D., (Ocally at conclusion of heacing) I must say that based have heacd that I don't thece being a fundamental Cleacly they wece supposed to supply C.S.A. appcoved machines. Fearn the evidence undecstanding that they ~ J J J OF NOVA SCOTIA J ] l LIMITED ] ] ,J LIMTED and l EARL CALDWELL ] l l on the evidence that I ] have any difficulty with bceach of the contcact. ] I heacd, thece was the would be getting C.S.i\. J I I
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