DATE: 20031020

DOCKET: C37794

COURT OF APPEAL FOR ONTARIO

RE: 1527 UPPER JAMES ST. HAMILTON INCORPORATED (Plaintiff/Appellant) –and– PHILLIP D. KENNEDY (Defendant/Respondent)

BEFORE: O’CONNOR A.C.J.O., CATZMAN and MOLDAVER JJ.A.

COUNSEL: W. Graydon Sheppard, for the plaintiff/appellant

John F. Evans, Q.C. and Michael Bordin, for the defendant/ respondent

HEARD: October 3, 2003

RELEASED ORALLY: October 3, 2003

On appeal from the judgment of Justice Thomas R. Lofchik of the Superior Court of Justice, sitting without a jury, dated January 21, 2002.

E N D O R S E M E N T

[1] Under the operative paragraph of the agreement of purchase and sale, the appellant was entitled to easements to park “up to a maximum of 36 vehicles”. After reviewing the evidence, the trial judge found that the appellant’s loss under this head of damages was limited to the value of the equivalent of 20 parking spaces. In doing so, he specifically accepted expert evidence that, having regard to the appellant’s practice of using 16 parking spaces in front of its building, the loss of 36 parking spaces should be reduced by reference to those 16 spaces, and concluded that the appellant’s damages for loss of the parking rights should therefore be calculated on the basis of 20 lost parking spaces, which he found to be $40,650. No issue was taken before us regarding the propriety of that figure.

[2] The trial judge further found that the appellant had failed to prove any claim for damages for diminution in the value of its property resulting from the potential impairment of the operation or sale of its banquet hall by reason of insufficient parking facilities. In doing so, he specifically accepted expert evidence that the compensation for the value of the lost parking spaces made up for the diminution of the capital value of the remaining property, and concluded that the appellant had not proved any damages in support of its claim for injurious affection.

[3] In our view, there was acceptable credible evidence before the trial judge on which he could make these findings and reach these conclusions, and he committed no palpable and overriding error in doing so.

[4] The appeal is dismissed, with costs, fixed in the sum of $11,000, inclusive of disbursements and G.S.T.

Signed: “Dennis O’Connor A.C.J.O.” “M.A. Catzman J.A.” “M.J. Moldaver J.A.”