DATE: 20050214

DOCKET: C40854

COURT OF APPEAL FOR ONTARIO

RE:

DAVE MARION carrying on business as QUEST (Plaintiff/ Respondent) -and- BRENT SPENCE (Defendant/Appellant)

-and- 1073736 ONTARIO INC. o/a CLUB 7 (Defendant)

BEFORE:

CATZMAN, LASKIN and ARMSTRONG JJ.A.

COUNSEL:

Colin Wright

for the appellant

Richard T. Knott

for the respondent

HEARD AND ENDORSED:

February 11, 2005

On appeal from the judgment of Justice Kenneth E. Pedlar of the Ontario Court of Justice dated September 30, 2003.

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

[1] The two principal issues raised on this appeal were (1) the joint or several liability of the appellant and the numbered company; and (2) the rate at which prejudgment interest should have been calculated.

[2] As to (1), we are of the view that the respondent was not precluded in law from signing default judgment against the numbered company and pursuing the action to trial against the appellant. The causes of action were not alternative, but rather based on independent theories – against the numbered company as lessee of the premises that received the benefit of the respondent’s work and against the appellant for holding himself out as the party entitled to enter into a contract with the respondent to perform that work.

[3] With respect to (2), the trial judge calculated interest on the amount awarded for the respondent’s claim at the rate of 2% per month. We agree with the appellant that the rate at which that interest should have been calculated is 5% per annum. The starting date for that calculation should be April 2000. Counsel have advised that they can agree on the recalculation of that interest component of the award in para. 1 of the judgment.

[4] Subject to the variation of the award for prejudgment interest, the appeal is dismissed, with costs to the respondent. Having regard to the result, we would fix the amount of costs in the amount of $3,500.00.