DATE: 20050218

DOCKET: C42000

COURT OF APPEAL FOR ONTARIO

RE:

LAUREANO LEONE, ELISA ALBERTINA LEONE, T.P.G. WESTHEIGHTS, THE BANK OF NOVA SCOTIA, RHYL INDUSTRIAL and 762058 ONTARIO LIMITED (Appellants) – and – COPPO & COMPANY (Respondent)

BEFORE:

MacPHERSON, SHARPE and JURIANSZ JJ.A.

COUNSEL:

Patrick Di Monte

for the appellants

Neal H. Roth

for the respondent

HEARD & ENDORSED:

February 17, 2005

On appeal from the judgment of Justice Susan G. Himel of the Superior Court of Justice dated May 26, 2004.

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

[1] In our view, the application judge did not err in ordering rectification of the mortgage to provide that the amount secured includes interest and costs. There was convincing evidence to support the conclusion that rectification was required to reflect the parties’ prior agreement. In particular, by the terms of the guarantee secured by the mortgage and attracted to it as a schedule, the appellant agreed in writing to provide the mortgage “to secure the amount of $100,000 together with interests, legal costs on a solicitor and client basis and all collection costs”. The notation made to box 9(b) of the mortgage – “nil” – was contrary to the prior agreement and accordingly cannot govern. The test cited by the appellant from Rose (Frederick E.) (London) Ltd. v. William H. Pim Jnr. & Co. Ld., [1953] 2 Q.B. 450 and adopted by this court in Brisebois v. Chamberland (1991), 1 O.R. (3d) 417 is met.

[2] Accordingly, the appeal is dismissed. Costs to the respondent fixed at $4,500 inclusive of GST and disbursements.