DATE: 20041206
DOCKET: C39808
COURT OF APPEAL FOR ONTARIO
RE:
DONALD LAKE (Plaintiff (Appellant)) – and – MICHAEL VAUGHAN (Defendant (Respondent))
BEFORE:
ROSENBERG, MOLDAVER and SIMMONS JJ.A.
COUNSEL:
Bryan Finlay Q.C. and Bruce H. Engell
for the appellant
Julian Porter, Q.C.
for the respondent
HEARD & ENDORSED:
December 1, 2004
On appeal from the judgment of Justice Todd Archibald of the Superior Court of Justice dated February 27, 2003.
A P P E A L B O O K E N D O R S E M E N T
[1] The trial judge gave thorough and comprehensive reasons for judgment that addressed all of the factual issues and correctly applied the law. The appellant submits that the trial judge made a palpable and overriding error because he failed to appreciate the impact of the late delivery of the materials and the March 25th letter.
[2] The trial judge dealt with these matters and understood the sequence of events. The trial judge made strong findings of credibility against the appellant and found, for example, that what Mr. Finlay characterizes as reasoned objections were part of the appellant’s plan to use whatever means necessary to stop the development unless he received a substantial benefit; that, in effect, the appellant had no genuine objection. These were findings of fact and it was open to the trial judge to make those findings given the entire history of events starting back in July 1994.
[3] Given these findings of fact the defence of qualified privilege was available.
[4] Accordingly, the appeal is dismissed with costs fixed at $10,000 inclusive of disbursements and G.S.T.