DATE: 2006-05-04

DOCKET: C43021

COURT OF APPEAL FOR ONTARIO

RE:

FRANCOIS CIMON (Plaintiff/Respondent) – and – DORIS BLAND ARTHUR (Defendant/Appellant)

AND RE:

DORIS BLAND ARTHUR (Plaintiff by Counterclaim/Appellant) – and – FRANCOIS CIMON, DAISY SHUK CHING CHOW, HOMELIFE GOLD PACIFIC REALTY INC., PETER FONG, RE/MAX HALLMARK REALTY LIMITED and PAUL ZAMMIT (Defendants by Counterclaim/Respondents)

BEFORE:

LASKIN, MACPHERSON and LANG JJ.A.

COUNSEL:

Robert A. Cobham, Q.C.

for the appellant

Garth Low

for the respondent

HEARD & ENDORSED:

May 2, 2006

On appeal from the judgment of Justice Thea P. Herman of the Superior Court of Justice dated January 7, 2005.

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

[1] The appellant, Doris Bland Arthur, appeals from the judgment of Herman J., dated 7 January 2005, granting the respondent, Francois Cimon, specific performance of the Agreement of Purchase and Sale for 9 King’s Inn Trail in Thornhill.

[2] The appellant contends that the trial judge erred by not finding that there was a condition that Ms. Arthur would not sell the property directly or indirectly to Daisy Chow (Mr. Cimon’s girlfriend). We disagree. The trial judge carefully reviewed the evidence on this issue and concluded that “[w]hile Ms. Arthur might have preferred to avoid a sale to Ms. Chow, the evidence…does not support a finding that this was a condition.” We see no basis for interfering with this conclusion.

[3] In our view, the disposition of the condition issue resolves all of the issues on the appeal except remedy. On this issue, the appellant contends that the trial judge erred by ordering specific performance instead of damages. We disagree. The trial judge applied the principles from the leading case, Semelhago v. Paramadevan, 1996 209 (SCC), [1996] 2 S.C.R. 415. She considered both the subjective and objective elements relating to the property and concluded that the property was sufficiently unique to warrant an order of specific performance. Again, we see no error in the trial judge’s analysis or conclusion.

[4] The appellant advances a second argument on the remedy issue. She contends that specific performance should not have been ordered because it would result in hardship to her and her family who all resided in the home. We disagree. The trial judge reviewed all of the relevant factors, including the short duration of the occupation of the home by the appellant and her family, and concluded that an order of specific performance would not result in hardship or be otherwise unfair. This is a conclusion supported by the evidence.

[5] The appeal is dismissed. The respondent is entitled to its costs fixed at $10,000 inclusive of disbursements and GST.