Court File and Parties

COURT FILE NO.: DC-159/06 DATE: 2008-10-24

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

B E T W E E N:

Mike Utsal & Lola Marjanovic Plaintiffs/Respondents

AND BETWEEN

Stephen Dale Denis and W.E. Beaton Developments Inc Defendants/Appellants

– and –

Chestnut Real Estate & James Martin Molloy Defendants/Respondents

Counsel: Debbie Jorgensen for the Plaintiffs/Respondents W. Ross MacDougall for the Defendants/Appellants Chris Kapches for the Defendants/Respondents

HEARD AT TORONTO: October 20, 2008

FERRIER J.

ENDORSEMENT

[1] On the facts as found by the learned trial judge, the plaintiffs did not know nor should they ought to have known that the defendants were mistaken in believing that there probably were screens in the basement.

[2] This is a case of unilateral mistake. In such circumstances, when the unmistaken party is ignorant of the other’s mistake, the Contract will prevail. See Fridman on Contracts as cited by the Respondents.

[3] There was no ambiguity in the terms of the contract. The defendant cannot be allowed to evade performance simply by averring that he made a mistake: See Brooklin Heights v. Major Holdings. 1977 1148 (ON SC), 17 OR (2d) 413 at para 8.

[4] Thus, what happened here was a breach of contract for which the plaintiffs are entitled to damages. The only measure of the damages in evidence was what it cost the plaintiffs to purchase screens for some of the windows in question.

[5] Accordingly, appeal dismissed.

[6] Concerning the claims against Molloy and Chestnut Park, the learned trial judge considered the standard of care and held that the agent need not have done more than he did, and that in reviewing the list of chattels with the defendants, he met the standard of care. He was entitled to rely on Denis. The learned trial judge’s findings were reasonable. The claim over is dismissed.

[7] Costs to the plaintiffs fixed at $2500 and to Molloy and Chestnut fixed at $750.

Ferrier J.

Date of Release: October 24, 2008