DATE: 20040123

DOCKET: C38630

COURT OF APPEAL FOR ONTARIO

RE: HOLTBY’S DESIGN SERVICE INC. (Plaintiff)(Appellant) – and – CAMPBELL CHEVROLET OLDSMOBILE INC., KEVIN CAMPBELL, IONA CAMPBELL and JOSEPH CIARDULLO (Defendants) (Respondents)

BEFORE: O’CONNOR A.C.J.O., WEILER and GOUDGE JJ.A.

COUNSEL: Garth D. Walkden for the appellant James Longstreet for the respondent

HEARD: January 16, 2004

RELEASED ORALLY: January 16, 2004

On appeal from the judgment of Justice Michael R. Meehan of the Superior Court of Justice dated June 28, 2002.

E N D O R S E M E N T

[1] The appellant, Holtby’s Design Service Inc., appeals from the judgment of Justice Meehan dated June 28, 2002, in which the appellant’s action was dismissed against the respondent, Joseph Ciardullo.

[2] We agree with the conclusion of the trial judge that there was no breach of contract. The appellant purchased the property on an “as is where is” basis. The respondent lived up to his obligation to deliver the two reports. Nothing in either report constitutes a promise that the property was contamination free and the respondent refused to give such a representation when asked. We also agree with the trial judge that there was no negligent misrepresentation. It was open to the trial judge to find that there was no duty of care owing by the respondent to the appellant. We need go no further. The appeal is dismissed.

[1] Costs to the respondent are fixed in the amount of $7,500 inclusive of disbursements and GST.

“Dennis O’Connor A.C.J.O.”

“Karen M. Weiler J.A.”

“S.T.Goudge J.A.”