Court of Appeal for Ontario

Citation: Canada Mortgage and Housing Corporation v. Bird, 2009 ONCA 215

Date: 2009-03-09

Docket: C48303

Before: Moldaver, MacFarland and Epstein JJ.A.

Between:

Canada Mortgage and Housing Corporation

Plaintiff (Respondent)

and

Canplex Corporation, David C. Bird and John Drozdowski

Defendants (Appellant)

Counsel:

David C. Bird, in person

John N. Birch and Erec Rolfe for the respondent

Heard and endorsed: March 6, 2009

On appeal from the judgment of Justice Thomas R. Lederer of the Superior Court of Justice dated January 14, 2008.

APPEAL BOOK ENDORSEMENT

[1] The trial judge was satisfied that the decision to end the tax appeal was a prudent one in all of the circumstances. In essence, when the judgment is read fairly and as a whole, the trial judge was of the view that the decision to give up on the tax appeal was reasonable in that the consequences of going forward were, at the time, fraught with peril and may well have placed the appellant’s interest in greater jeopardy.

[2] As for the issue relating to the fair and reasonable purchase price, again when the judgment is read as a whole, with particular reference to paras. 22 to 26 and paras. 79 and 80, it is implicit that the trial judge was satisfied that the purchase price obtained was both fair and reasonable. In any event, the appellant did not lead any evidence to the contrary.

[3] The failure of the trial judge to deduct the net proceeds of sale from the judgment amount is a mere technicality conceded by the respondent and can be easily corrected by the trial judge.

[4] Accordingly, the appeal is dismissed, without prejudice to the appellant’s right to seek to amend the judgment under rule 59.06(1) to take into account the sale proceeds.

[5] Costs to the respondent fixed at $10,000 inclusive of G.S.T. and disbursements.