DATE: 20040204

DOCKET: C40178

COURT OF APPEAL FOR ONTARIO

RE:

MAA DINERS INC., KARAMJIT GILL and MAMTA PATEL (Applicants (Respondents in Appeal)) – and – 3 FOR 1 PIZZA & WINGS (CANADA) INC., TRIPLE PIZZA (HOLDINGS) INC., TRIPLE 3 HOLDINGS INC. and REZA SOLHI (Respondents (Appellants in Appeal))

BEFORE:

MOLDAVER, MACPHERSON and SIMMONS JJ.A.

COUNSEL:

Peter-Paul E. DuVernet

for the appellant 3 for 1 Pizza & Wings (Canada) Inc.

John W. Chidley-Hill

for the appellant Triple Pizza (Holdings) Inc. and

Triple 3 Holdings Inc.

Jeffrey P. Hoffman

for the respondents MAA Diners Inc. et al

HEARD & ENDORSED:

February 3, 2004

On appeal from the judgment of Justice Gertrude Speigel of the Superior Court of Justice dated February 10, 2003.

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

[1] On behalf of Triple Holdings and Triple Pizza, Mr. Chidley-Hill’s primary submission on appeal was that Justice Speigel erred in failing to order a trial of three central and disputed issues of fact, i.e. whether the three corporate entities were essentially one, whether the disclosure document was provided to the respondents and whether the respondents damaged the premises and/or damaged or stole equipment from the premises. This was at best an almost invisible issue before Speigel J. and in our view, based on the record before her, it was open to her to decide the matter on the merits.

[2] Both appellants argue that Speigel J. erred in concluding that the three corporate appellants were essentially a single entity. We disagree. In our view, based on the direct and circumstantial evidence and the lack of evidence from the appellants, her conclusion is amply supported. We also find that her conclusion regarding the failure of the appellants to provide the respondents with the required disclosure document and her further finding that the respondents did not damage the property or illegally remove items from it are also amply supported.

[3] Accordingly, the appeal is dismissed with costs to the respondents on a partial indemnity basis fixed at $4,706.48 inclusive of G.S.T. and disbursements. In the circumstances, we make no order as to costs with respect to the motion for security for costs brought unsuccessfully by the respondents.

Signed: “M. J. Moldaver J.A.”