DATE: 20030602 DOCKET: C37699

COURT OF APPEAL FOR ONTARIO

RE:

ELLSWORTH BRIAN TOLL and LINDA ANN TOLL (Plaintiffs/Appellants) - and MICHAELO MARJANOVIC (Defendant/Respondent) - and STEPHEN R.S. SOBOT (Third Party)

BEFORE:

CARTHY, CHARRON, SHARPE JJ.A.

COUNSEL:

Earl Altman for the appellants

R.J. Bassermann, Christopher A.L. Caruana for the respondent

HEARD & ENDORSED:

May 30, 2003

On appeal from the judgment of Justice Sandra Chapnik of the Superior Court of Justice dated January 11, 2002.

APPEAL BOOK ENDORSEMENT

[1] In our view, in light of the unusual endorsement of the Divisional Court on the appeal from the Vendors and Purchasers motion, the question of what the appellant had actually bargained for was still a live issue on the trial of this motion. The trial judge found that the appellant "agreed to purchase the property subject to the lease including the option to purchase." This finding was open to the trial judge on the evidence, and in light of the explicit notation "encroachment" on the sketch attached to the agreement of purchase and sale, her finding did not contradict the terms of the written agreement. Nor do we read her reasons as resting on the proposition that knowledge of a title defect amounts to waiver of the defect. Accordingly, she properly dismissed the appellants' claims against the vendor and the appeal is dismissed. Cost to the respondent on a partial indemnity basis fixed at $16,000 inclusive of G.S.T.

"Robert J. Sharpe J.A."