DATE: 20031217

DOCKET: C37228

COURT OF APPEAL FOR ONTARIO

RE: CAM-VALLEY DEVELOPMENTS LIMITED (Plaintiff (Respondent)) – and – LILLIAN M. PETERS (Defendant (Appellant))

BEFORE: McMURTRY C.J.O., ROSENBERG and GILLESE JJ.A.

COUNSEL: Peter S. Carlisi and Nicholas P. Kapelos

for the appellant

Maureen L. Whelton

for the respondent

HEARD: December 15, 2003

RELEASED ORALLY: December 15, 2003

On appeal from the judgment of Justice Anne Molloy dated October 10, 2001.

E N D O R S E M E N T

[1] Of the numerous issues raised by the appellant, we only found it necessary to call upon the respondent in respect of three.

(1) As to GST, we are satisfied that the issue was raised during the trial and that the appellant had notice of that issue. We cannot say that the trial judge erred in exercising her discretion to permit the amendment of the claim. Further, on this record, the appellant has failed to show entitlement to credit for any rebate.

(2) As to tender, we agree with the trial judge’s interpretation of clause 37 of the Agreement of Purchase and Sale and that it was open to her to find that the respondent was ready, willing and able to close and that formal tender was not required.

(3) As to costs, we have not been persuaded that there was any error in principle. It was open to the trial judge to take into account the various matters referred to in her reasons on the costs issue.

[2] Accordingly, the appeal is dismissed with costs fixed at $6,000 inclusive of disbursements and GST.

Signed: “R. Roy McMurtry C.J.O.”

_____ “M. Rosenberg J.A.”

_____ “E.E. Gillese J.A.”