COURT OF APPEAL FOR ONTARIO
RE: VITTORIO PANZA (Plaintiff/Appellant) – and – CENTURY 21 ROYAL WINDSOR REALTY INC. (Defendant/Respondent)
BEFORE: SIMMONS, GILLESE and ARMSTRONG JJ.A.
COUNSEL: William G. Dingwall, Q.C. for the appellant Neil Kredentser for respondent
HEARD: December 18, 2002
On appeal from the judgment of Justice Sidney N. Lederman of the Superior Court of Justice dated January 23, 2001, reported at [2001] O.J. No. 200 and the costs award dated May 7, 2001.
E N D O R S E M E N T
1The appellant asks the court to set aside the decision of the trial judge on the basis that he erred in accepting oral evidence that had the effect of altering the terms of a written document (“the terminating agreement”). We do not accept this argument.
2On the evidence before him, the trial judge was fully justified in finding that the terminating agreement was intended to cover all of the properties that each of Mr. Panza and Mr. Passante were working on or had worked on as at July 15, 1999. The trial judge was justified, also, in finding that there was a misrepresentation by Mr. Panza in respect of the properties that he was working on and that the Jane Street property should have been included in the terminating agreement and subject to the 50/50 commission split.
3The oral evidence received by the trial judge pertaining to the Jane Street property was admissible to complete the terms of the termination agreement. The termination agreement does not purport to contain the whole of the parties’ agreement. The list of properties is not said to be exhaustive. Therefore, adding the Jane Street property to the termination agreement is not contradictory to the face of the document. Rather, it is a modification or qualification of the written document.
4In any event, Mr. Panza cannot benefit from his own misrepresentation as to the properties that he was working on. It was permissible to admit the oral evidence to establish the misrepresentation.
5The second issue raised on appeal is whether the trial judge erred in making an award in favour of Mr. Passante who is not a party to the action.
6We do not agree that an award was made in favour of Mr. Passante. The trial judge found that Century 21 was obliged to pay Mr. Panza $86,000 plus GST plus accumulated interest. In arriving at that figure, the trial judge had to determine the entitlement of various parties. That calculation is not tantamount to an order in favour of Mr. Passante. The trial judge made no award or order in favour of Mr. Passante.
7At trial, costs were awarded to the respondent on a party and party basis, as assessed, despite the appellant’s success in obtaining judgment. The trial judge gave the following reasons for the costs award:
- the respondent was successful on the one substantive issue that occupied the bulk of the trial, namely, whether the commission split applied to the Jane Street property;
- the respondent attempted to settle issues with the appellant without any meaningful response by the appellant; and,
- the respondent had made a written offer to settle.
8In the appellant’s factum, he sought leave to appeal the costs award but did not make submissions on the matter. At the hearing of the appeal, the appellant was given the opportunity to file a supplemental factum addressing the matter. A supplemental factum was filed. It contains six paragraphs with argument as to why the trial judge should have awarded the appellant its costs at trial. It does not expressly allege any error in the trial judge’s exercise of discretion.
9An appellate court is not to interfere with an order for costs unless the trial judge erred in the exercise of his or her discretion. See Andrews v. Andrews (1980), 32 O.R. (2d) 29 (C.A.). As no such error has been demonstrated or, for that matter, even alleged, there is no basis for this court to interfere with the order.
10In the result the application for leave to appeal costs is allowed. The appeal as to costs is dismissed. The appeal on the merits is dismissed with costs to the respondent. If the parties are unable to agree upon the quantum, the respondent may make brief written submissions on the same within seven days of the date of the release of this endorsement and the appellant may reply within seven days thereafter.
“J.M. Simmons J.A.”
“E.E. Gillese J.A.”
“R.P. Armstrong J.A.”