COURT FILE NO.: 1364

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT AT LONDON

B E T W E E N:

BESSY STAVROU

Appellant

• and -

LOW-INCOME FAMILY EMPOWERMENT SOLE-SUPPORT PARENTS INFORMATION NETWORK (aka LIFESPIN)

Respondent

Counsel: Thomas F. Delorey, for the Appellant Renato M. Gasparotto, for the Respondent

HEARD: May 6, 2003

CUNNINGHAM, A.C.J.:

D E C I S I O N

1I have had an opportunity to review the reasons of my learned colleague Greer J. Respectfully, I must disagree.

2The issue here is the extent to which, if at all, a judge hearing an Application under Rule 14.05(3)(d) may consider extrinsic evidence.

3The facts on this appeal are not seriously in dispute. On the closing of a real estate transaction, which was "subject to the usual disbursements", the Respondent purchaser wanted to credit the balance of 2 RRAP mortgages, $23,755.17 at the time of closing, against the purchase price. The Appellant vendor says these forgivable mortgages should not have been considered as an adjustment. Closing took place leaving the issue of adjustments to be later determined.

4The Application Judge stated that, "the answer is to be looked at if possible within the four corners of the contract…(t)he assumption of the forgivable mortgages form part of the total consideration between vendor and purchaser and there is no further amount due to the Applicant. Application dismissed."

5The evidence, which the Appellant argues was disregarded, was that of Randy Hewitt, the vendor's agent, a person with experience in prior transactions involving RRAP loans. Hewitt stated, in his affidavit, that such loans were not considered a "usual adjustment" in an offer to purchase such as the one at issue. He further stated he understood, from a conversation with him, that the purchaser's agent understood that to be the case. Hewitt's affidavit is, to say the least, rather lacking in specifics. Nowhere does he say when this conversation between the agents occurred. He strongly states that he "believe(ed) that Mr. Fairley (the purchaser's agent) understood that the assumption of these loans did not form part of the purchase price". This affidavit was sworn about two years after the transactions closed. The Appellant argues because Hewitt's evidence is "uncontradicted" it ought to have been accepted. I disagree. Against the evidence of Hewitt was that of Jacqueline Thompson, the Executive Director of the Respondent. Her affidavit evidence is quite extensive and through its exhibits, demonstrates that the purchaser had always taken the position, before closing, indeed before the agreement was entered into, the RRAP mortgages were to be assumed and the amounts involved credited against the purchase price. The evidence further reveals that the purchase of the building was only part of a larger project.

6Against a backdrop of this competing evidence, the learned Application Judge properly looked at the agreement itself. Finding no ambiguity he ruled accordingly.

7For this court we are to determine whether the Application Judge was clearly wrong in the circumstances in not considering extrinsic evidence. The terms of the present agreement were not ambiguous. Moreover, the agreement was to constitute the entire agreement between the parties and no representation, warranty, collateral agreement or condition would affect it.

8Rule 14.05(3)(d) is limited, on its face, to the interpretation of a written instrument, not some oral agreement or understanding that might give it a different meaning. The Application Judge correctly interpreted and applied the Rule. There was nothing in the agreement to suggest the RRAP forgivable mortgage would be dealt with or adjusted any differently than a conventional mortgage.

9I would dismiss the appeal.