DATE: 20060406

DOCKET: C42254

COURT OF APPEAL FOR ONTARIO

RE:

WALTER STEVEN PRYSTAY (Plaintiff/Respondent) –and–STEPHANIE PRYSTAY, ESTATE TRUSTEE OF THE ESTATE OF THE LATE MARVIN JOSEPH PRYSTAY, and STEPHANIE PRYSTAY (Defendants/Appellants) AND BETWEEN: STEPHANIE PRYSTAY, ESTATE TRUSTEE OF THE ESTATE OF THE LATE MARVIN JOSEPH PRYSTAY, and STEPHANIE PRYSTAY (Plaintiffs by Counterclaim/Appellants) –and– WALTER STEVEN PRYSTAY and DUPONT PLUMBING AND HEATING SUPPLIES INC. (Defendants by Counterclaim/Respondents)

BEFORE:

LASKIN, CRONK AND LANG JJ.A.

COUNSEL:

James A. Graham

for the appellants

Julian R. Nawrocki

for the respondent

HEARD & RELEASED ORALLY:

March 30, 2006

On appeal from the judgment of Justice Helen M. Pierce of the Superior Court of Justice, dated July 13, 2004 made at Toronto, Ontario.

E N D O R S E M E N T

[1] The appellants’ principal argument is that the trial judge erred in finding that there was an enforceable buy/sell agreement. The appellants’ position is that the insurance proceeds were to be used to fund the purchase of Marvin Prystay’s shares, but that the parties never agreed on the mechanics or the price of a buyout.

[2] We disagree with the appellants’ position. At paragraphs 34-39 of her reasons, the trial judge found an enforceable contract at a pre-determined purchase price of $500,000.00, which included the business and the land. That finding is supported by the evidence and is largely consistent with the evidence of Stephanie Prystay at trial. Thus, the appellants’ main ground of appeal fails.

[3] Counsel for the appellants acknowledges that if the trial judge’s finding of an agreement is upheld, he cannot succeed on the claims concerning oppression, rental monies and mortgage interest.

[4] On the appellant Stephanie Prystay’s wrongful dismissal argument, we see no error in the trial judge’s findings. There was ample evidence to support a finding of just cause for dismissal, and of a failure to mitigate.

[5] The only issue on which we called on the respondent was the appellants’ claim for payment of an outstanding shareholder loan of $15,677.96. The trial judge rejected this claim, and had evidence on which to do so. Thus, the appellants must fail on this issue as well.

[6] We conclude by observing that this was a fact-driven appeal, and we were not persuaded of any palpable and overriding error in the trial judge’s findings. Indeed, the trial judge wrote a thorough and well-reasoned judgment. Accordingly, the appeal is dismissed with costs, fixed in the amount of $15,000.00, inclusive of disbursements and G.S.T.