DATE: 20040614

DOCKET: C40976, M31389

COURT OF APPEAL FOR ONTARIO

RE:

SHEILA STENE AND ANDREW GILBERT (Applicants/ Appellants) – and – JOHN THOMSON (Respondent/ Respondent in appeal)

BEFORE:

GOUDGE, SHARPE and CRONK JJ.A.

COUNSEL:

Christopher Du Vernet for the (applicants/appellants)

Ronald P. Bohm for the respondent

HEARD:

June 11, 2004

On appeal from the judgment of Justice Ellen M. Macdonald of the Superior Court of Justice dated October 21, 2003.

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

[1] The appellants’ motion to stay this appeal is dismissed. Their subsequent action is based upon facts that were known to them at the time they brought the application seeking rescission, relief also sought in new action. The appellants put their case against the respondents in the terms of the application, lost, and appealed that result. They should not now be permitted to delay the final resolution of that matter on the basis of these late blooming allegations.

[2] The only issue for us is whether the application judge erred in her interpretation of Schedule A, para. 6 of the Agreement of Purchase and Sale. In our view, she did not. Nor do we accept the argument advanced before us that (1) the respondent is obliged under the Agreement of Purchase and Sale to remove obstacles impeding the appellants’ right of access or (2) that the appellants are entitled to make physical changes to the respondent’s property to facilitate access.

[3] Accordingly, the appeal is dismissed. Costs to the respondent fixed at $8,000 inclusive of GST and disbursements.