Court File and Parties
Court of Appeal for Ontario
MacPherson, Sharpe and Juriansz JJ.A.
Between:
Paolini Supermarket Limited Appellant/Respondent
and
Angelo Pagliuca and Diamante Pagliuca Respondents/Applicants
Counsel:
Patrick Summers for the appellant/respondent
Mauro Marchioni for the respondents/applicants
Heard: September 11, 2007
On appeal from the judgment of Justice J. McIsaac of the Superior Court of Justice dated December 7, 2006.
Appeal Book Endorsement
1We see no error in the finding of trespass. The appellant in effect appropriated 210 sq. metres of the respondents’ land to facilitate the construction of a Tim Hortons. The appellant offered no evidence that the cost of removing the encroachment would be oppressive. The land on which the berm was constructed is a 66’ wide strip affording access to the respondents’ lands. While the trial judge directed the trial of an issue as to damages, he was entitled on the record to order an injunction and as he did so, the only issue remaining as to damages relates to any loss up to the time the encroachment is removed.
2Accordingly, the appeal is dismissed. Costs to the respondent fixed at $5,000 inclusive of disbursements and GST.
