DATE: 20001123

DOCKET:C31528

COURT OF APPEAL FOR ONTARIO

RE: LEE, KAREN T., HAMIKA LTD. (formerly known as Hamika Holdings Ltd.) (Plaintiffs/Appellants) and 1071397 ONTARIO INC.; MICHAEL LUK and NELSON YUEN (Defendants/Respondents)

BEFORE: MORDEN, ROSENBERG and SIMMONS JJ.A.

COUNSEL: Peter Lindsay, for the appellant

Ira Kagan and Rahul Shastri, for the respondents

HEARD: November 20, 2000

On appeal from the judgment of Justice Joan L. Lax on January 5 and January 28, 1999.

E N D O R S E M E N T

[1] In this appeal the plaintiffs seek a new trial based on submitted errors in the reasons of the trial judge – that is, they do not submit that, on the evidential record, this court is in a position to give the judgment that they submit the trial judge should have given.

[2] In our view, there was ample evidence relating to each of the alternative bases on which the trial judge relied and she could reasonably conclude that the plaintiffs had failed to prove fraudulent representations by Mr. Luk. We deal with the submitted major errors made by the trial judge.

[3] The appellants submit that the trial judge erred in saying that Ms. Lee “admitted in cross-examination that Luk did not make any representation as to the value of the land”. When the cross-examination is read as a whole, we think that it was indeed open to the trial to conclude that Ms. Lee did make such an admission. It is reasonable to interpret her evidence as indicating that she formed her own opinion that the value was $16,000 an acre based on information Mr. Luk gave her. This information was true.

[4] The rest of the submitted errors principally relate to evidence on the value of the land in question in 1994. It was reasonably open to the trial judge to regard all of this evidence as that of subjective opinion only and not of objective fact. As such, any views the trial judge formed on it were not material to the conclusion that even if Mr. Luk had made a “representation” that the value of the land was $1.6 million, he honestly believed that, at the time of the purchase, it had a value that ranged from $1.5 to $2 million. Any evidence inconsistent with this conclusion was hardly conclusive and we cannot say that the trial judge erred in not referring to it.

[5] Finally, the appellant agrees that the trial judge was correct in her conclusion that Mr. Luk was not asked, in his cross-examination, about the alleged representation as to the value of the land.

[6] We are far from persuaded that the reasons indicate any palpable and overriding error on the part of the trial judge.

[7] Accordingly, the appeal is dismissed with costs on solicitor and client basis.

“J.W. Morden J.A.”

“M. Rosenberg J.A.”

“J. Simmons J.A.”