Court of Appeal for Ontario

Date: 2004-06-11 Docket: C38601, C38602

Re: ROBERT PIZZEY, CAMERON PIZZEY, GLEN PIZZEY and MARC LEVEBVRE and ROBERT OWEN PIZZEY Executors of the Estate of Mabel Pizzey, deceased (Applicants/Appellants Plaintiffs/Appellants) – and – CRESTWOOD LAKE LIMITED, PERCY ST. PIERRE, MARGARET ST. PIERRE and MARGARET VICTORIA ST. PIERRE-BEKE (Respondents/Respondents Defendants/Respondents)

Before: WEILER, LASKIN and GOUDGE JJ.A.

Counsel: Milton A. Davis and J. M. Arthur Levebvre for the appellants James W. W. Neeb and Shelly J. Harper for the respondent

Heard: June 10, 2003

On appeal from the judgment of Justice Ronald C. Sills of the Superior Court of Justice dated June 28, 2002.

ENDORSEMENT

[1] The appellants ask us to change our judgment to provide that our award of post maturity interest at 10 per cent per annum be compound interest instead of simple interest. We decline to do so for two reasons.

[2] First, neither in their factum nor in oral argument did the appellants assert a claim for compound interest. The sole issue before us was whether the post maturity rate of interest should be 5 per cent or 10 per cent.

[3] Second, and more important, although the mortgage provides for compound interest, we upheld the trial judge’s finding that the promissory note, not the mortgage, governed the transaction. And, the promissory note does not provide for compound interest. As our intent was to ensure that the interest after maturity be the same as the interest on the note before maturity, we are of the view that the appropriate award is 10 per cent simple interest.

[4] Accordingly, we decline to change our judgment.

"K.M. Weiler J.A."

"John Laskin J.A."

"S.T. Goudge J.A."