COURT OF APPEAL FOR ONTARIO

DATE: 2004-12-13

DOCKET: C39316

RE: Stephen Wemyss (Plaintiff/Respondent) -and- John Moldenhauer and Sutton Group Fox Realty Inc. (Defendants/Appellants)

BEFORE: Catzman, Gillese and Lang JJ.A.

COUNSEL: Bryan B. Skolnik for the appellant Howard C. Cohen for the respondent

HEARD AND RELEASED ORALLY: December 9, 2004

On appeal from the judgment of Justice Anne M. Molloy of the Superior Court of Justice dated December 2, 2002.

ENDORSEMENT

[1] The appellant sought to introduce evidence of remarks made by the trial judge during the closing submissions of counsel at trial. For the purpose of disposition of this appeal, we assume, without deciding, that that evidence is admissible. In our view, the remarks of the trial judge in that evidence and other remarks appearing in the transcript of the trial proper cannot be said to create a reasonable apprehension of bias in the mind of the impartial observer. At their highest, the comments of the trial judge were no more than cautions of an instructive nature offered to a counsel junior at the bar. They were not intended to convey an adverse opinion on the appellant’s position, nor could they be read as reflecting any pre-determination by the trial judge of the rights of the parties and the outcome of the lawsuit.

[2] On the subject of mitigation, there is no basis to challenge the trial judge’s finding that the respondent’s concerns about problems of ponding around the septic system on the property was what drove his decision not to proceed with the purchase and to seek the return of his deposit. Equally, there is no basis to challenge the trial judge’s finding that the costs of repairs for the septic system were uncertain. In these circumstances, the trial judge was correct in concluding that the duty to mitigate was not engaged.

[3] For these reasons, we dismiss the appeal with costs, which we fix in the sum of $10,000, inclusive of disbursements and G.S.T.

Signed: "M.A. Catzman J.A." "E.E. Gillese J.A." "Susan Lang J.A."