DATE: 20050207

DOCKET: C40805

COURT OF APPEAL FOR ONTARIO

RE:

SORRENTO DEVELOPMENTS LIMITED (Applicant/ Respondent in appeal) -and- THE CORPORATION OF THE TOWN OF CALEDON (Respondent on application/Appellant)

BEFORE:

GOUDGE, LANG and JURIANSZ JJ.A.

COUNSEL:

László Pándy

for the appellant

Ronald G. Chapman

for the respondent

HEARD:

January 31, 2005

On appeal from the decision of Justice Nancy L. Backhouse of the Superior Court of Justice dated September 15, 2003.

E N D O R S E M E N T

[1] The appellant appeals on the grounds that the trial judge erred in making certain findings of fact and in deciding three legal issues: res judicata, the expiration of the limitation period, and the equitable ground that the respondent did not come to court with clean hands, and hence is not entitled to the declaration awarded.

[2] While, given the passage of time, the evidence presented by the parties was sparse, there was evidence to support the trial judge’s findings that the conveyance of the property was made by mistake. In particular, she accepted the testimony of the respondent’s real estate solicitor that the conveyance had been “an error in his office.” He testified he had not been instructed by anyone to make the conveyance and it was made by inadvertence. The appellant did not produce any evidence, written or oral, that it was entitled to a transfer of the land. As a result, the trial judge was left to weigh the evidence that was called and to make findings of fact on the basis of that evidence.

[3] On the issue of res judicata, the trial judge noted that the issue before her was not about enforcement of the subdivision agreement, but rather about the ownership of the particular parcel, which ownership pre-existed and was independent of the terms of the subdivision agreement. The trial judge correctly dismissed this argument.

[4] On the limitations issue, as the trial judge had concluded there was never an intention by the conveyor to transfer or gift the property to the appellant and the transfer had been made by mistake, she found that the appellant held the parcel in a resulting trust for the benefit of the respondent and that, accordingly, a limitations issue did not arise. Accordingly, we agree with the trial judge that, on the facts found, a limitation issue did not arise.

[5] It is a matter of discretion for the trial judge whether to refuse to grant equitable relief on the basis that a litigant has not come to court with clean hands. The trial judge decided to grant equitable relief in this case despite the fact the respondent failed to convey to the town other lands that it was obliged to convey under the subdivision agreement, and she provided reasons for doing so. We would not interfere with the exercize of her discretion to correct what was, on the facts found, an error of a clerical nature.

[6] Accordingly, the respondent’s grounds of appeal do not succeed. The appeal is dismissed.

[7] The day after the appeal had been argued, Mr. Chapman filed further submissions with the court on his own initiative. This was inappropriate and we disregard his submission.

[8] Costs are awarded to the successful respondent fixed at $7500.00 inclusive of disbursements and GST.

“S.T. Goudge J.A.”

“S.E. Lang J.A.”

“R.G. Juriansz J.A.”