DATE: 20031106

DOCKET: C39614

COURT OF APPEAL FOR ONTARIO

RE: METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 1385 (Applicant/Respondent in appeal) and MICHAEL IZZARD (Appellant/Respondent)

BEFORE: MORDEN, GILLESE and ARMSTRONG JJ.A.

COUNSEL: Michael Izzard in person

Mark Arnold for the applicant/respondent in appeal

HEARD: October 22, 2003

RELEASED ORALLY: October 22, 2003

On appeal from the judgment of Justice Hugh M. O’Connell of the Superior Court of Justice dated January 24, 2003.

E N D O R S E M E N T

[1] Mr. Izzard accepts that his counsel did not seek an adjournment before O’Connell J. for the purpose of cross-examining on Mr. Waldron’s affidavit. Accordingly, the submission he advanced to this effect should not have been made.

[2] Although it is clear that the appellant’s counsel did object to the admissibility of some parts of Mr. Waldron’s affidavit in its factum, it is not clear that he made this assertion orally. The best view of this issue is that counsel was prepared to argue the case on the basis of the material filed and did not seek the trial of an issue.

[1] Having regard to the foregoing, we shall review the judgment under appeal to determine whether or not it is reasonably supportable by admissible evidence. The chief basis for concluding that some of the evidence is not admissible is non-compliance with rule 39.01(5).

[2] Generally, we take into account, in considering the evidence, the reasonableness of interpreting it in the light of the fact that Mr. Izzard’s activities, whatever they were, were all in aid of advancing the interests of Skyline Executive Properties Inc.

[3] We turn now to the paragraphs in the formal order under appeal.

Paragraph 1. In our view, this paragraph is reasonably supported by the evidence that showed that Mr. Izzard carried on his law practice in his rented unit.

Paragraph 2. This paragraph is reasonably supported by the personal knowledge set forth in paragraphs 10, 13, 14 and 16 in the Waldron affidavit.

Paragraph 3. This paragraph is reasonably supported by the personal knowledge set forth in paragraphs 13, 14, 20 and 21 in the Waldron affidavit.

Paragraph 4. This paragraph is reasonably supported by the personal knowledge set forth in paragraphs 12, 13 and 14 in the Waldron affidavit.

Paragraph 5. In the view of the majority of the court, this paragraph is reasonably supported by the personal knowledge set forth in paragraphs 10 and 15 in the Waldron affidavit.

Paragraph 6. This paragraph is reasonably supported by the personal knowledge set forth in paragraphs 12, 13, 14, 22, 24, 25 and 26 in the Waldron affidavit.

[4] We do not think that the appellant’s affidavit shows any serious contradiction of the evidence upon which we rely in support of the orders made.

[5] Armstrong J.A. does not agree with the conclusion of the majority respecting paragraph 5 of the formal order under appeal. In his view, there is insufficient evidence to support a finding of distribution of written material.

[6] Accordingly, the appeal is dismissed. [Costs submissions] The respondent is entitled to its costs of this appeal which we fix in the amount of $7,500 including disbursements and G.S.T.

“J.W. Morden J.A.”

“E.E. Gillese J.A.”

“R.P. Armstrong J.A.”