 |
| Canadian Flexi Drills Inc. vs. Smith |
|
Between
Canadian Flexi Drills Inc., Wallach Manufacturing Inc.,
395 Steelcase Road Limited and 1106883 Ontario Limited,
Leslie Wallach, Joshua Wallach, Jesse Wallach, Aaron Wallach and Felleesha Hosein, appellants, and John H. Smith, respondent |
|
[2004] O.J. No. 658
Court File No. 431/03 and 432/03 |
|
Ontario Superior Court of Justice
Divisional Court
Then, Caputo and Swinton JJ. |
|
Heard: January 21, 2004.
Oral judgment: January 21, 2004.
Released: February 13, 2004.
(11 paras.) |
|
 |
|
Messod Boussidan, for the appellants.
John W. Findlay, for the respondent. |
|
| Restitution — Benefit acquired from the plaintiff — Mistake — Goods or money transferred by mistake — Money — Mistake of fact. |
|
| Appeal by Canadian Flexi-Drills from the dismissal of its action against Smith to recover an overpayment of $15,380. Smith provided bookkeeping services to Canadian. He claimed that he made an agreement with the principal of Canadian to increase his hourly rate from $20 to $30. The principal died three months later. The increase took effect after his death. The trial judge found that no agreement had been made. The principal's wife took over the business after his death. She testified that her husband told her that the hourly rate was $20, and that he had never told her about an increase. The action was dismissed because the judge was not satisfied that the conditions for restitutionary relief based on mistake of fact were satisfied. He found that the wife did not testify that she was misled by Smith's invoices or made a mistake when she signed a cheque to pay him. |
|
| Held, Appeal allowed. |
|
| The judgment was set aside. Smith was ordered to repay $15,380 to Canadian. The evidence was clear that the wife believed that the applicable rate was $20. Any carelessness on her part was irrelevant. There was no evidence that the conditions for restitutionary relief were not satisfied. Once the judge found there was no agreement, Smith had no moral or equitable right to retain the overpayment. |
|
 Download PDF of full case |
|
|
