Supreme Court

Decision Information

Decision Content

SUPREME COURT OF NOVA SCOTIA

Citation: E.B.F. Manufacturing Ltd. v. White, 2009 NSSC 329

 

Date: 2009/11/05

Docket: Hfx No. 247580

Registry: Halifax

 

 

Between:

E. B. F. Manufacturing Limited and ElectroBraid Fence Limited

Plaintiffs

and

 

Eric White and White Rhino Inc.

Defendants

 

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                            S U P P L E M E N T A R Y  D E C I S I O N

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Judge:                            The Honourable Justice Gerald R. P. Moir

 

Heard:                            22, 23, 24, 27, 28, 29, 30 April 2009

 

Last Written

Submissions:                   November 2, 2009

 

Counsel:                         Ms. Jane O’Neill

and Mr. Daniel Watt, Articled Clerk, for the plaintiffs

 

Mr. Colin Piercey

and Mr. Nathan Sutherland, for the defendants


Moir, J:

 

[1]              I assessed ElectroBraid’s loss of profits at para. 125 to para. 163 of my decision dated September 21, 2009.  I concluded that “$352,000 accurately reflects ElectroBraid’s loss of profits”.

 

[2]              Ms. O’Neill suggests that I inadvertently left out almost $100,000 in lost profits related to sales by the defendants into the retail and wholesale markets.

 

[3]              Mr. Piercey submits that the round figure of $352,000 may have been a “global damages amount” meant to reflect “a reasonable assessment of the overall damages”.  He does acknowledge that I may have intended otherwise and inadvertently failed to include sales to the retail, and wholesale markets.

 

[4]              I failed to include losses resulting from sales into the markets.  I accepted the calculations made by the experts, but made adjustments according to my findings on each of the accounting issues listed at para. 144 of my earlier decision.

 

[5]              The use of a round figure was not intended to indicate a global assessment that departed from the expert calculations.  Although the experts express their conclusions in exact figures down to the nearest cent, I found that I could not honestly be that precise.  There was room for some minor variances on several of the accounting issues.  I chose to express my conclusion in a rounded figure to show that the exercise had not been perfectly precise.

 

[6]              Unfortunately, I chose to round a figure that did not include losses from sales into the markets although I found (see para. 148) all those amounts should be included.

 

[7]              The correct amount is $449,768.75, which I would round to $450,000 just to avoid the implication that the assessment can be so precise.  Mr. White is entitled to set off $25,000, which is also a slightly imprecise assessment.  Judgment would be for $425,000.                               

 

[8]              A rate of 3.5% has been agreed for prejudgment interest.  Costs to the plaintiffs in the amount of $48,750 are agreed.

 

[9]              Agreement has not been reached on disbursements.  Also, Ms. O’Neill may wish to comment on Mr. Piercey’s form of order.  Counsel may make further submissions on those subjects.

 

 

J.

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