COURT FILE NO.: 01-BN-11704

DATE: 20031125

ONTARIO

SUPERIOR COURT OF JUSTICE

Divisional Court

B E T W E E N:

Joseph Marieiro

K.A. Howes, for the Respondent Marieiro

Plaintiff/Respondent

• and -

Renata Czyzycka

M. Verskin, for the Appellant Czyzycka

Defendant/Appellant

• and -

Elfa Realty and John Duhaime

H. Engell, for the Responding Third Parties Elfa and Duhaime

Third Parties/Respondents

HEARD: April 11, 2003

REASONS FOR JUDGMENT

Dunn J.

1This is an appeal by the defendant Czyzycka from the decision rendered November 28, 2001 of Fitzhenry J. sitting as a Deputy Small Claims Court Judge for Brampton. In lengthy handwritten reasons the learned trial judge gave judgment to the plaintiff for $6,000.00 plus pre-judgment interest and dismissed the claim of the defendant/appellant against the Third Parties.

Grounds for Appeal

2The defendant/appellant claims that the trial judge erred in dismissing the third party claim; in finding that the plaintiff sustained damage; and in misapprehending the facts and the evidence put before him at trial.

Standard of Review

3There must be some error in law or some palpable or overriding error must be present which affected the trial judge’s assessment of the facts in order for an appeal court to interfere with a decision of a Small Claims Court Judge.

Brief Overview of Facts

4Evidence was heard at trial for at least two days, June 5, and September 11, 2001.

5The action arose out of an agreement of purchase and sale dated March 18, 2000 wherein the defendant was purchaser and the plaintiff was the vendor. The agreement provided for the sale of a residential property to the defendant for $260,000.00 and required the defendant to furnish a deposit of $10,000.00. It was conditional upon the inspection of the property by the defendant or her agents and provided that that condition could be waived by her.

6Instead of signing a ‘waiver’, the defendant caused the third party real estate agent to draft an “Amendment to Agreement”. That amendment is at the centre of the argument of the defendant on appeal.

7The Amendment to Agreement provided for the deletion of the original condition. It also inserted certain points for clarity only. Those points for clarity did not appear to change the substance of the original agreement. Although she was obliged to do so, the defendant failed to provide the deposit cheque reflected in the Agreement of Purchase and Sale and the Amendment.

8The evidence before the trial judge indicated that the Amendment to the Agreement was signed by the defendant and submitted to the plaintiff. The defendant’s evidence at trial was that she instructed her agent not to submit the amendment to agreement after it was signed. Conflicting evidence was given by the agent who indicated to the trial judge that once the amendment was signed it was communicated to the plaintiff’s agent. There was also evidence from the defendant that she accused the plaintiff through her agent that the condition was not fulfilled and that she did not want to go through with the deal before the plaintiff communicated acceptance of the ‘Amendment’ to the defendant.

9The amendment was accepted by the plaintiff and that acceptance was dated the same day as the Amendment.

10The trial judge chose, in the face of this conflicting evidence, to disbelieve the defendant preferring the agent’s (third party) version of events.

11Item (b) of the Amendment to Agreement required the deposit of $10,000.00 to be placed in an interest bearing account and credited to the purchaser. This reflected the obligation of the defendant to apply the deposit on the original agreement. It is clear that no deposit was paid by the defendant.

12It is open on this evidence for the trial judge to conclude that there was a binding agreement of purchase and sale. It was also open for him to find that the plaintiff would have reasonable time in which to accept the Amendment to Agreement, notwithstanding the purchaser’s advice that she did not want to go through with the deal.

13As to the third party’s claim, it is clear that the trial judge did not conclude that the agent or the agent’s broker failed to inform the plaintiff that the purchaser did not wish to go through with the transaction, given the findings he made against the defendant’s credibility.

Deposit

14The defendant points out that the defendant’s failure to pay the deposit as required under both the original agreement and the amendment to agreement should make the agreements null and void. As the contract was originally and subsequently with the amendment, under seal, albeit the usual printed seals, no further consideration would be required. In any case, it lies not with the appellant who defaulted under the agreement to now look for some advantage for that default. To conclude otherwise would suggest that the defendant was not acting with good faith in the matter.

Third Party Claim

15The defendant also complains that the trial judge made an error in dismissing the third party claim against the agent and the brokerage. Again in the trial judge’s reasons are findings of fact against the credibility of the appellant and in favour of the third parties’ witness. Those findings should not be lightly interfered with, nor can I in reviewing the evidence conclude that he made an error in misapprehending that evidence.

Damages

16The evidence the trial judge had with respect to damages was somewhat scant. The vendor lost $1,000.00 on the purchase price when he re-sold the property. He was also obliged to put his furniture in storage and he obtained alternate occupancy with a relative for the delayed closing. For the trial judge, as well, was the issue of inconvenience to the vendor. On the evidence that the trial judge heard there was sufficient foundation upon which to assess damages in the amount of $6,000.00. Deference to the trial judge’s finding on the evidence, especially when he has seen and heard the witnesses in person, is required.

17As a result, I cannot conclude on the materials put before me that there has been some palpable overriding error which effected the trial judge’s assessment of the facts nor was there an error in law.

18The appeal is dismissed.

Costs

19The parties may address me with respect to costs in writing within 30 days of the date of the release of this decision.

Dunn J.