Board of Education (London) v. East Middlesex District High School Board

APPELLANT; *Ot THE CITY OF LONDON (Defendant)

'P N o AND

THE EAST MIDDLESEX DISTRICT

HIGH SCHOOL BOARD (Plaintiff)..

R

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

CARTWRIGHT J.:-This is an appeal from a judgment of the Court of Appeal for Ontario' allowing an appeal from the judgment of Lieff J. pronounced on August 11, 1964, finding that the respondent had suffered proven damages of $45,234 but holding that the action should be dismissed. The reasons of Lieff J. proceeded on the ground that, while there was a parol contract made between the parties the breach of which by the appellant had caused the damages mentioned above, the contract could not be enforced because it was not made under seal. The Court of Appeal agreed with the views of Lieff J. as to the construction of the contract and as to its having been breached by the appellant but held that it was enforceable notwithstanding the absence of the corporate seal, by virtue of the provisions of s. 293 of The Corporations Act, R.S.O. 1960, c. 71, which had not been brought to the attention of the learned trial judge.

1 [1965] 2 O.R. 51, 49 D.L.R. (2d) 586.

R.C.S.

[19671 The Court of Appeal was, however, of the view that in the circumstances of this case the damages should have been assessed only down to the date of the judgment at trial and that, if they were to be assessed by the Court of Appeal, they should be assessed only down to the date of the judgment of that Court. In the result the Court of Appeal gave judgment declaring "that the contract referred to in the pleadings herein is valid and binding upon the defendant and that the defendant has committed a breach thereof" and directing a reference as to damages in the Cartwright J. following terms:

is not necessary to set out ex. 16 in detail. It should be J.explained that the breach of contract committed by the appellant was the withdrawal by it from Medway High School, which is under the jurisdiction of the respondent, of a number of students prior to the commencement of the school year 1963-1964 who under the terms of the contract should have been left to complete their secondary school education at Medway High School. The students concerned would, if the contract had been carried out, have continued at Medway during the school years 1963-1964, 1964-1965 and 1965-1966 and the cost of their education would have been payable by the appellant.

It became clear during the course of the argument before us that only two questions are raised as to the accuracy of ex. 16. The first was as to the starting figure, being the number of students who were wrongly taken away in September 1963. The figure used in the statement is 39. The appellant contends it should have been only 36. The second is as to the estimated "retention factor" used in calculating the loss for future years.

I will deal first with the second of these questions. In calculating the loss for the 1964-1965 school year it was estimated that only 85 per cent of the students who had completed the 1963-1964 year would have attended and in calculating the loss for the 1965-1966 school year it was estimated that only 60 per cent of those who had completed the 1964-1965 year would have attended. While these were of necessity estimates their soundness was established by the evidence of the witness Mr. Hoople, Principal of Medway, which was neither contradicted by other evidence nor weakened on cross-examination.

Dealing next with the question whether the starting figure should have been 39 or 36, it appears that prior to the commencement of the 1963-1964 school year the appellant obtained the transfer from Medway High School of the records of 42 students who had been in regular attendance at Medway during the year 1962-1963. The names of these

42 students are set out in ex. 10. As to three of these Mr. Hoople, who appears to have acted throughout with exemplary fairness, said that he had reason to believe they would not have continued at Medway even if the appellant had continued to perform its part of the contract and thus the respondent's claim was reduced to 39.

Christianson, Jack Small and Charles Stock, but no evidence was given to show why they should not be included.

No doubt on the pleadings the onus of proving its damages lay upon the plaintiff but when it had proved that the defendant had, in breach of its contract, withdrawn the records of 42 students and that those students had not returned to Medway it appears to me that the burden of adducing evidence shifted to the defendant if it sought to assert that these three named students would not in any event have returned to Medway. No such evidence was adduced and in my opinion the learned trial judge was right in accepting the plaintiff's starting figure of 39 students.

I conclude therefore that the assessment of damages made by the learned trial judge should be accepted.

I would dismiss the appeal with costs, allow the crossappeal without costs, set aside paras. 3, 4 and 5 of the formal judgment of the Court of Appeal and that part of para. 6 thereof which deals with the costs of the Reference and direct that judgment be entered in favour of the respondent against the appellant for the sum of $45,234.

Appeal dismissed with costs; cross-appeal allowed without costs.