DATE: 20051124

DOCKET: C42259

COURT OF APPEAL FOR ONTARIO

RE:

ROBERT FRANS DEHART (Appellant/Plaintiff) v. LENARD HERBERT LIND and SUTTON GROUP-SUCCESS REALTY LTD. (Respondents/Defendants)

BEFORE:

DOHERTY, CRONK and MACFARLAND JJ.A.

COUNSEL:

William G. Scott

for the appellant/plaintiff

Charles Baker

for the respondents/defendants

HEARD & ENDORSED:

November 17, 2005

On appeal from the judgment of Justice J.R. McIsaac of the Superior Court of Justice dated July 15, 2004.

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

[1] The trial judge applied the proper standard of proof (balance of probabilities): see para. 15. In determining whether the plaintiff had met that standard, the trial judge was required to consider the cogency of the evidence. In doing so, he was entitled to look for “clear and convincing” evidence given the trial judge’s assessment of the competing positions advanced at trial.

[2] The appeal is dismissed. Costs to the respondent in the amount of $4,000, inclusive of GST and disbursements.