DATE: 20040603

DOCKET: C39597

COURT OF APPEAL FOR ONTARIO

RE:

SIGNATURE REALTY (WINDSOR) LTD. (Plaintiff (Appellant)) – and – INES RITACCO-QUENNEVILLE (Defendant (Respondent))

BEFORE:

LABROSSE, GOUDGE AND MacPHERSON JJ.A.

COUNSEL:

Brian A. Fortune

for the appellant

Peter K, Hrastovec

for the respondent

HEARD & ENDORSED:

June 2, 2004

On appeal from the judgment of Justice John C. Brockenshire of the Superior Court of Justice dated January 24, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view it is not necessary to deal with whether the trial judge was correct in the test for liability that he applied.

[2] This is so because the trial judge concluded that the plaintiff failed to prove its damages. In our view this was a finding that was open to him on the evidence, particularly that the market was so volatile that he could draw no conclusion about the loss to which the plaintiff would be entitled, from the actual sale price of the building some two years later. The initial onus to prove damages is on the plaintiff. It failed to do so. This is not a question of mitigation.

[3] Nor would we interfere with the trial judge’s findings as to costs. Both the order against the guiding mind of the plaintiff and the principal shareholder, and the scale of the order were within the trial judge’s discretion.

[4] The appeal must therefore be dismissed with costs, payable on the same basis as ordered by the trial judge, fixed at $9,946.02 inclusive.