DATE: 20051129

DOCKET: C42856

COURT OF APPEAL FOR ONTARIO

RE:

AYERSWOOD DEVELOPMENT CORPORATION and RICHMILL DEVELOPMENT CORPORATION (Respondents/ Plaintiffs) – and – ONTARIO HYDRO ENERGY INC. (Appellant/Defendant)

BEFORE:

SHARPE, CRONK and LANG JJ.A.

COUNSEL:

Lou Fortini

for the appellant

Scott Turton

for the respondent

HEARD & RELEASED ORALLY:

November 23, 2005

On appeal from the judgment of Justice Anne Marie Molloy of the Superior Court of Justice dated November 25, 2005.

E N D O R S E M E N T

[1] We are in essential agreement with the reasons of the trial judge and accordingly, dismiss the appeal.

[2] In our view, the key provision is section 1.2 of the Customer Agreement, which provides that the applicant is entitled to the final payment if the building is “complete and ready for occupancy” within twenty-four months of the initial payment. There was uncontradicted evidence that the building was complete and ready for occupancy within that period. We do not accept the submission that, on a fair reading of the documents and the record as a whole, entitlement to the final payment was contingent on the issuance of an “occupancy permit”. The Building Code Act and Regulations do not require issuance of an occupancy permit as a condition of occupancy and as the terms of the agreement were unilaterally imposed by the appellant, it would be unreasonable to interpret them as imposing such a requirement.

[3] We see no basis to interfere with the trial judge’s discretion as to the commencement date for the payment of prejudgment interest. Given our disposition of the merits of the appeal, the appeal as to costs fails.

[4] For these reasons, the appeal is dismissed. In accordance with the agreement of counsel, costs to the respondent fixed at $9,630 inclusive of GST and disbursements.

“Robert J. Sharpe J.A.”

“E.A. Cronk J.A.”

“S.E. Lang J.A.”