COURT OF APPEAL FOR ONTARIO

DATE: 20050617

DOCKET: C42371

RE: DANIEL DOIG (Plaintiff (Respondent)) – and – CAL JET PERFORMANCE INC. and GORDON ALMADI (Defendants (Appellants))

BEFORE: MOLDAVER, ARMSTRONG and JURIANSZ JJ.A.

COUNSEL: Stephen Schwartz and Emma Kenley for the appellants Gary Boswell and Lori L. Gibson for the respondent

HEARD: June 16, 2005

On appeal from the judgment of Justice Mary Jane Hatton of the Superior Court of Justice dated August 17, 2004.

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

[1] The trial judge gave full and comprehensive reasons for judgment. Indeed, in our view, they were exemplary.

[2] In her reasons, the trial judge found that the sale transaction was governed by the June 5, 2000 Agreement, that the contingencies in the Agreement had been waived, that there was no reliance by the appellants on the June 30, 2000 Financial Statement and that there was no misrepresentation that resulted in financial loss to the appellants. Having regard to the evidence as a whole, and the trial judge’s adverse findings of credibility against the appellants (which the appellants do not challenge), we see no basis for interfering with the trial judge’s findings of fact. In particular, we see no error in her treatment or analysis of the evidence surrounding the June 30, 2000 Financial Statement or its relationship to the “Representations and Warranties” provided by the respondent on November 8, 2000.

[3] With respect to the award of $8,300 plus G.S.T. in respect of the Management Consultant Agreement, we are satisfied that it was open to the trial judge to interpret the Agreement as she did and we therefore see no basis for interfering with the quantum of the award. However, the respondent concedes, and we agree, that the company alone should be responsible for the breach, and not Mr. Almadi in his personal capacity, since he was not a party to the Management Consultant Agreement. Paragraph 5 of the judgment shall be varied accordingly.

[4] We are also of the view that paragraph 3 of the judgment relating to interest on the $70,000 promissory note should be varied to give effect to the terms of the agreement between the parties. The respondent consents to the variation. Accordingly, paragraph 3 of the judgment is amended by deleting the words “from and after December 2, 2000” and replacing them with the words “from and after March 5, 2001”.

[5] With respect to costs, we see no error in the reasons of the trial judge and there is no basis for interfering with her disposition.

[6] Accordingly, apart from the variations identified, the appeal is otherwise dismissed.

[7] Costs to the respondent fixed at $5,000 (five thousand) inclusive of disbursements and G.S.T.