DATE: 20041213
DOCKET: C41090
COURT OF APPEAL FOR ONTARIO
RE:
DONALD BATES and CAROL BATES (Plaintiffs/ Respondents in Appeal) -and- ISLAND COVE DEVELOPMENT LTD., 1078385 ONTARIO LIMITED and AMICONE DESIGN BUILD INC. (Defendants/Appellants in Appeal)
BEFORE:
CATZMAN, GILLESE and LANG JJ.A.
COUNSEL:
Myron W. Shulgan, Q.C.
for the appellants
James Branoff
for the respondents
HEARD AND RELEASED ORALLY:
December 9, 2004
On appeal from the judgment of Justice David R. Aston of the Superior Court of Justice dated November 20, 2003.
E N D O R S E M E N T
[1] The trial judge’s finding that Amicone Design Build Inc. (“ADB”) assumed the obligations of Island Cove Development Ltd. (“Island Cove”) and 1078385 Ontario Limited (“107”) was supported by the following evidence:
ADB, after termination of the joint venture agreement in February 2000, took over responsibility for the project;
At the same time, ADB took over all contact and communication with the Bates;
ADB’s “HUDAC” number was used for the transaction;
ADB’s invoices to the Bates made no mention of any other participant in the project and, by inference, requested payment to ADB;
The ADB Statement sent to the Bates referenced the Bates’ $66,000 deposit as though it was in the control of ADB;
The ADB Statement reflected not just the expenses of the house construction, but also reflected the value of the land itself;
On the subsequent resale, the proceeds of sale went to ADB;
The discovery evidence read in at trial acknowledged that:
(a) the various corporate participants conducted themselves as one entity;
(b) the $66,000 deposit went into one “pot”, to which all participants had access; and
(c) Island Cove, the purported owner according to the Agreement of Purchase and Sale, never held title to the property.
[2] ADB elected to call no evidence to rebut the reasonable inferences that could be drawn from the above evidence. In light of the above, there is no basis to say that the trial judge erred in his conclusion that ADB stood in the shoes of Island Cove.
[3] As counsel for the appellant conceded, if ADB stood in Island Cove’s shoes, ADB was liable for the return of the $66,000.
[4] Accordingly, the appeal is dismissed with costs, fixed in the amount of $12,500, inclusive of disbursements and G.S.T.
Signed: “M.A. Catzman J.A.”
“E.E. Gillese J.A.”
“Susan Lang J.A.”