DATE: 20050909

DOCKET: C42664

COURT OF APPEAL FOR ONTARIO

RE:

MARBLE TREND LTD. and EMILY CARUSO (Plaintiffs (Appellants)) – and – SIR WYNNE-HIGHLANDS INC., VINCENT PETICCA, a.k.a. VINCE PETICCA, RENZO BELLUZ, NICOLA CORTELLUCCI, a.k.a. NICK CORTELLUCCI, GINO DIGENOVA, ADOLF GUST and DANIEL SALVATORE, a.k.a. DANNY SALVATORE (Defendants (Respondents))

BEFORE:

CRONK, LANG and JURIANSZ JJ.A.

COUNSEL:

Thomas S. Kent for the appellants

Phillip W. Sutherland for the respondent Renzo Belluz

Jeffrey J. Long for the respondents Sir Wynne-Highlands Inc. and Vincent Peticca

HEARD & RELEASED ORALLY:

September 6, 2005

On appeal from the judgment of Justice D. R. Cameron of the Superior Court of Justice dated July 22, 2004.

E N D O R S E M E N T

A. Appeal

[1] The appellants challenge the decision of the trial judge on several grounds.

[2] With respect to their attack on the trial judge’s findings of fact (including his key findings that the appellant Emily Caruso was in breach of the agreement of purchase and sale as at June 30, 1993, that time ceased to be of the essence to the parties, and that the value of the marble supplied by the appellants was to be applied to the credit of Mrs. Caruso upon the closing of the transaction contemplated by the agreement of purchase and sale), these findings were open to the trial judge on the evidence. We are not persuaded that they are tainted by palpable and overriding error.

[3] The appellants next argue that the trial judge erred by rejecting their argument of promissory estoppel. We disagree. In our view, on this record, neither the respondents’ words nor their conduct constituted an unambiguous promise or assurance that they would not rely upon or seek to enforce the agreement of purchase and sale.

[4] We also see no error in the trial judge’s conclusion that Mr. Peticca was not personally liable for the $38,000 advanced by Mrs. Caruso. The trial judge found that this money was paid by Mrs. Caruso as a further deposit on account of the purchase price for the home at issue and she received the benefit of this deposit in the trial judge’s reasons.

[5] We also reject the appellants’ challenge of the trial judge’s costs award. This was a matter within the discretion of the trial judge and we are not persuaded that he erred in principle or that the award in favour of the respondents was plainly wrong.

[6] Finally, we found it necessary to hear from the respondents on the appellants’ claim that the trial judge erred by failing to find Mr. Belluz, a former officer and director of Sir Wynne-Highlands Inc. (“Sir Wynne”), personally liable for the sums awarded to the appellants. The trial judge found as a fact, excepting Mr. Peticca but including Mr. Belluz, that none of the individual directors of Sir Wynne knew or reasonably ought to have known of facts that would fix them with the requisite knowledge of a breach of trust by Sir Wynne. This finding is dispositive of the assertion that Mr. Belluz is personally liable even if he was an officer of Sir Wynne.

B. Cross-Appeal

[7] On our reading of the trial judge’s reasons, he treated the respondents’ claims against Mrs. Caruso concerning the agreement of purchase and sale and her claim, as the assignee of the corporate appellant, related to the unpaid purchase price for the marble supplied to the development, as distinct claims. On the pleadings and the evidence, the trial judge was entitled to do so and, therefore, to separately fix pre-judgment interest in respect of each set of claims. We also do not accept that the trial judge erred by allowing pre-judgment interest at the rate of 24% per annum on the applicable sums found to be owing to Mrs. Caruso. This was the annual rate of interest stipulated in the invoices delivered to the respondents in connection with the marble.

C. Disposition

[8] In the result, the appeal and the cross-appeal are dismissed. The parties agree that the majority of the time involved in these proceedings concerned the main appeal. In these circumstances, the respondents are entitled to costs fixed in the total amount of $5,000 for the clients of each counsel, inclusive of disbursements and GST.

“E.A. Cronk J.A.”

“S.E. Lang J.A.”

“R.G. Juriansz J.A.”