DATE: 20050114

DOCKET: C38795

COURT OF APPEAL FOR ONTARIO

RE:

KARL HEINZ KURZ and KATHERINE KURZ (Applicants/Appellants) -and- WHITBY HYDRO ELECTRIC COMMISSION and THE CORPORATION OF THE TOWN OF WHITBY (Respondents/Respondents in appeal)

BEFORE:

McMURTRY C.J.O., CATZMAN and LANG JJ.A.

COUNSEL:

John W. Montgomery

for the appellants

Ian A. Johncox

for the respondent

HEARD AND RELEASED ORALLY:

January 12, 2005

On appeal from the judgment of Justice Alfred J. Stong of the Superior Court of Justice dated August 16, 2002.

E N D O R S E M E N T

[1] The trial judge concluded that Mr. and Mrs. Kurz opened the account with Whitby Hydro in 1967. In 1975, K.H. Kurz Foods Inc. was incorporated and thereafter it paid the Hydro account.

[2] Once Hydro established that the account was made with the Kurzs personally, the evidentiary burden shifted to the Kurzs to show an assignment or assumption of that account by K.H. Kurz Foods Inc.

[3] As admitted by the appellants, there was no evidence that the account was assigned to K.H. Kurz Foods Inc. Further, there was no evidence to establish novation.

[4] Accordingly, the trial judge found that the Kurzs remained personally liable for the account. In reaching this conclusion, the application judge made findings of fact and drew inferences from those facts. We see no palpable and overriding error in his doing so.

[5] Accordingly, the appeal is dismissed with costs to the respondent fixed in the amount of $5,000, inclusive of fees and disbursements.

Signed: "R.R. McMurtry C.J.O."

"M.A. Catzman J.A."

"S.E. Lang J.A."