DATE: 20010406

DOCKET: C33724

COURT OF APPEAL FOR ONTARIO

RE: KINGSGATE HOMES LIMITED (Plaintiff/Appellant) – and – RICHARD GOLISZEK and BART LaBARBERA (Defendants/ Respondents)

BEFORE: CATZMAN and WEILER JJ.A. and SPENCE J. (ad hoc)

COUNSEL: Ed G. Upenieks, for the appellant Robert A. Cobham, Q.C., and David A.S. Mills, for the respondents

HEARD: March 27, 2001

On appeal from the judgment of Justice Victor Paisley dated January 20, 2000.

O R A L E N D O R S E M E N T

[1] The trial judge found that the respondents were expecting a home with an attached garage at the side instead of at the front. The trial judge found that this was a material or fundamental change and entitled the purchasers to refuse to close the transaction and to the return of their $20,000 deposit.

[2] The appellant’s main submission is that there was uncontradicted evidence from an employee of the appellant, Mary Mount, that she telephoned Mr. LaBarbera, who was the contact for both himself and Mr. Goliszek, and told him his choice was to have a detached garage at the back or an attached garage at the front of the house. She further testified that Mr. LaBarbera chose not to have a detached garage at the back and she was certain he understood what she was talking about in reference to a garage at the front.

[3] The trial judge was not satisfied from the evidence of Ms. Mount that it was conveyed clearly to Mr. LaBarbera that he could not possibly have the elevation as described in the brochure. It was open to the trial judge to come to this conclusion and we are not persuaded that he made any palpable and overriding error in doing so. The trial judge’s conclusion is supported by the evidence that, following the conversation with Ms. Mount, the purchasers visited the site and, when they saw the foundation for the garage at the front of the house, they protested that the wrong house was being built.

[4] The appellant further submits that the change was not a fundamental change. Again, it was open to the trial judge to conclude to the contrary, and we would not disturb his finding.

[5] Accordingly, the appeal is dismissed with costs.

Signed: “M.A. Catzman J.A.” “K.M. Weiler J.A.” “Spence J. (ad hoc)”