DATE: 20041103

DOCKET: C39687

COURT OF APPEAL FOR ONTARIO

RE: STEFAN MOHN and 1371062 ONTARIO INC. (Plaintiffs/Respondents) v. MONA DREISER and THE ESTATE OF WILHELM DREISER, 1082243 ONTARIO INC., WALLY SCHEURER and VIEWPOINT INTERNATIONAL SCHEURER REALTY INC. (Defendants/Appellants) – and – 1082243 ONTARIO INC. (Plaintiff/Appellant) v. STEFAN MOHN and 1371062 ONTARIO INC. (Defendants/Respondents)

BEFORE: DOHERTY, WEILER and LASKIN JJ.A.

COUNSEL: Paul J. Murray for the appellants

Ian McLean for the respondents

HEARD: October 22, 2004

ORALLY

RELEASED: October 22, 2004

On appeal from the judgment of Justice L.C. Kozak of the Superior Court of Justice dated December 23, 2002.

E N D O R S E M E N T

[1] We are satisfied that there was no evidentiary basis for the trial judge’s finding that Mona Dreiser was a party to the relevant misrepresentations.

[2] The trial judge did not give separate consideration to the liability of Mrs. Dreiser in his reasons. He did, however, indicate that she was privy to the presentation of the financial statements to Mr. Mohn and that she was also privy to the lies told to the real estate agent by her husband. Having reviewed the relevant parts of the transcript with the assistance of counsel, we are satisfied that there is simply no evidence to support either of those conclusions.

[3] The action against Mrs. Dreiser should have been dismissed and we would allow the appeal against her and vary the order made at trial accordingly.

[4] The damages awarded by the trial judge amounted to double recovery for the respondent. Having discharged the outstanding vendor-take-back mortgage, thereby giving the respondent clear title, the monetary damages should equal the difference between the monies actually paid by the respondent and the amount he would have paid had he purchased the property at its actual market value. That amount is $3,500.00. The damages awarded at trial should be varied to the amount of $3,500.00.

[5] It is agreed, for reasons which are unnecessary to detail here, that despite the variations we have made in the judgment made at trial, there should be no variation in the costs awarded at trial and that part of the trial order will stand.

[6] The appellants are entitled to their costs on the appeal and we have reviewed the bill of costs and heard submissions from counsel. We would fix those costs at $12,000.00, inclusive of GST and disbursements.

“Doherty J.A.”

“K.M. Weiler J.A.”

“John I. Laskin J.A.”