DATE: 2002-11-22

DOCKET: C37529

COURT OF APPEAL FOR ONTARIO

RE: JASHAMED M. ALI (Plaintiff)(Respondent) –and– TRIPLE 3 HOLDINGS INC., 3 PIZZAS 3 WINGS LTD. and ANDREW ZWIEDRYNSKI (Defendants)(Appellants)

BEFORE: WEILER, GOUDGE and ARMSTRONG JJ.A.

COUNSEL: Brendan Bowles, for the appellants Triple 3 Holdings Inc. and 3 Pizzas 3 Wings Ltd. Michael Woods, for the respondent

HEARD: November 12, 2002

RELEASED ORALLY: November 12, 2002

On appeal from the judgment of Justice John R. Belleghem of the Superior Court of Justice dated November 29, 2001.

ENDORSEMENT

[1] The appellant appeals the order of Belleghem J. that it return the deposit the respondent paid him for a franchise.

[2] The trial judge found that there had been substantial non-disclosure of material facts on the part of the appellant amounting to fraudulent misrepresentation and that in consequence any resulting agreement was void.

[3] The appellant’s principal submission is that the trial judge erred in finding fraud because he did not articulate the proper burden of proof.

[4] The burden remains proof on a balance of probabilities but, in the case of fraud, a higher standard of probability is required. The reasons of the trial judge are silent as to the burden of proof. An appellate court should not presume that the judge of first instance was not aware of or failed to apply the appropriate legal test merely because the test is not explicitly set out in the judge’s reasons: R. v. Sheppard (2002), 2002 SCC 26, 210 D.L.R. (4th) 608 (S.C.C.) at para. 51; R. v. Burns, [1994] 1 S.C.R. 656 at para. 17. We would not give effect to this ground of appeal.

[5] The trial judge was aware of the inconsistency in Mr. Zwiedrynski’s evidence between discovery and trial. The fraudulent misrepresentation found by the trial judge was based on a conversation between Mr. Zwiedrynski and Mr. Solhi. Mr. Solhi did not testify and deny the conversation. There was evidence at trial upon which the trial judge could find fraud.

[6] Quite apart from fraudulent misrepresentation, the trial judge found there was no meeting of minds respecting essential terms of the franchise agreement and we see no reason to interfere with his conclusion in this regard.

[7] The appeal is therefore dismissed with costs fixed in the amount of $10,000 all inclusive on a substantial indemnity basis having regard to the finding of fraud. The $10,000 paid into court as security for costs of this appeal shall be paid out forthwith to the respondent.

Signed: “K. M. Weiler J.A.” “S. T. Goudge J.A.” “Robert P. Armstrong J.A.”