Court of Appeal for Ontario

Date: May 16, 2019 Docket: C65544

Judges: Feldman, Paciocco and Fairburn JJ.A.

Between

Jesse Fulton and Nicole White Plaintiffs (Respondents)

and

Koa Aloha Inc. Defendant (Appellant)

Counsel

Christopher Staples, for the appellant

Erroll Treslan, for the respondents

Heard and Released

Heard and released orally: May 13, 2019

On appeal from the judgment of Justice Conlan of the Superior Court of Justice, dated May 25, 2018.

Reasons for Decision

[1] The appellant appeals the finding of the trial judge that the parties reached an oral agreement and that they were ad idem on the terms on which the respondents had an option to purchase unit 116 from the appellants. They also dispute that there was legal part performance referral to the agreement to take the agreement out of s. 4 of the Statute of Frauds, R.S.O. 1990, c. S.19.

[2] Finally they say that the trial judge misapprehended some aspects of the evidence on which he based his findings of the agreement and its terms.

[3] We do not agree that the trial judge made any of these errors.

[4] First, although the trial judge found an agreement before he found the terms agreed on, read contextually, we are satisfied that he made no legal error as he went on to find a consensus had been reached on the material terms.

[5] In our view, he was entitled to find, based on the record, that the parties had agreed on the option to purchase, on the basis that the respondents would be responsible for any shortfall in the operating cost of the unit after applying all of the rentals together with a credit of the amount normally charged for the coaching fees for the appellant's two children. We also agree with him that the provision of those ski lessons for free can be viewed as part performance, specifically referral to the agreement.

[6] Finally in our view it was open to the trial judge to find the terms of the agreement as he did. It was open to him to come to the credibility findings he did for which he gave reasons. We are obliged to defer to those findings as no palpable or overriding error in the perception of the evidence has been demonstrated.

[7] The appeal is therefore dismissed with costs of $10,000, inclusive of disbursements and HST, payable to the respondents.

K. Feldman J.A.

David M. Paciocco J.A.

Fairburn J.A.