DATE: 20010502

DOCKET: C35448

COURT OF APPEAL FOR ONTARIO

RE: RELCO INC. (Plaintiff/Respondent in Appeal) –and– ALBERT CARBONE, also known as AL CARBONE, CATHY HORVATH, ERNEST LUWISH and KIT KAT BAR & GRILL, RESTAURANTS AND CLUBS INC. (Defendants/Appellants)

BEFORE: FINLAYSON, CARTHY and WEILER JJ.A.

COUNSEL: Albert G. Formosa and Bruce H. Engell, for the appellants Allan S. Halpert, for the respondent Relco Inc. Diana W. Dimmer, for the City of Toronto

HEARD: April 20, 2001

On appeal from the order of Justice Paul U. Rivard dated November 30, 2000.

O R A L E N D O R S E M E N T

[1] The consent judgment that was the centerpiece of the dispute between the appellants and the respondents required the appellants Carbone and Horvath to “prepare and submit to the City of Toronto all necessary plans for the removal of the beams supporting the glass roof structure at 297 King Street West, Toronto from the easterly wall of the one story concrete block edition at the rear of 299 King Street West, Toronto on or before November 30, 1999”. It appears that the sticking point in the carrying out of the consent agreement was the requirement by the City of Toronto that before issuing a building permit it would require that the plans submitted include work already done for which no permit had been obtained and provide for the removal of the support beams in the westerly wall between 297 and 295 King Street West unless the permission of the owner of 295 King Street West could be obtained to the construction as built on its property. No such permission was obtained.

[2] Rivard J. appeared to accept that the requirements of the City of Toronto had been explained to the parties before the consent order was made.

[3] In amending the consent judgment, paragraph 18 of the reasons of Rivard J. speak the language of rectification: “with a view to the performance of the obligations agreed to by the parties”. Rivard J. was entitled to look to prior discussions to identify mutual intent. It is clear that the intent was to file plans that would solve the problem at hand. The language of the consent judgment did not accomplish this. This rectification was justified.

[4] The deadline for submitting the required plans was extended by Rivard J. to April 15, 2001. On the consent of the parties, this date is further extended to July 13, 2001. Subject to this change, the appeal is dismissed with costs.

Signed: “G.D. Finlayson J.A.” “J.J. Carthy J.A.” “K.M. Weiler J.A.”