DATE: 20010209

DOCKET: C29851

COURT OF APPEAL FOR ONTARIO

RE: INTRA TRAVEL LIMITED and INTRA TRAVEL CORPORATION (Plaintiffs/Respondents) v. TRAVEL PATH INC. (Defendant/Appellant)

BEFORE: CATZMAN, DOHERTY and SIMMONS JJ.A.

COUNSEL: Timothy J. Law and Sushama Bole for the appellant Melissa J. Kennedy for the respondents

HEARD: February 6, 2001

RELEASED ORALLY: February 6, 2001

On appeal from the judgment of Madam Justice Katherine E. Swinton dated April 24, 1998.

E N D O R S E M E N T

The Appeal

[2] The arguments raised on the appeal from the dismissal of the counterclaim were all made to the trial judge. She rejected each of those arguments and gave detailed reasons for doing so. The rejection of the arguments advanced before her was predicated primarily on factual findings that she made.

[3] The appellant cannot succeed on appeal by merely demonstrating that different findings of fact could reasonably have been made by the trial judge on the evidence. The trial judge’s findings of fact are entitled to deference. The appellant has not satisfied us that any of her factual findings are unreasonable or otherwise subject to reversal in this court.

[4] The appeal is dismissed.

The Cross-Appeal

[5] The agreement provided for a set purchase price. It also provided for an adjustment up or down of that purchase price depending on how the business did in the first year that it was operated by the appellant. A formula was set out in the agreement providing for the manner in which that adjustment should be calculated.

[6] The respondent submits that the trial judge misinterpreted the meaning of the phrase “direct commission income” in that formula. We cannot agree with that submission. In our view, the trial judge’s interpretation was consistent with the language of the agreement and reflected the reasonable expectations of the parties based on the actual performance of the business during its first year of operation by the appellant.

[7] The cross-appeal is dismissed.

Costs

[8] Having regard to the offer made by the respondents to the appellant for the resolution of this litigation, we order that the appellant pay to the respondents the costs of the appeal and cross-appeal forthwith after their assessment.

“M.A. Catzman J.A.”

“J. Simmons J.A.”

“Doherty J.A.”