DATE: 20060504

DOCKET: C42317

COURT OF APPEAL FOR ONTARIO

RE:

CITY COMMERCIAL REALTY (CANADA) LTD. (Plaintiff/Appellant) -and- ZORAN BAKICH, JOHN FARACI, STEPHEN CHAN and COMBI CAPITAL GROUP LIMITED (Defendants/Respondents)

BEFORE:

LASKIN, MACPHERSON AND LANG JJ.A.

COUNSEL:

Maurice J. Neirinck

for the appellant

Harry. W. McMurtry

for the respondents Stephan Chan and Combi Capital Group Limited

Roberto R. Cucci

for the respondents Zoran Bakich and John Faraci

HEARD & ENDORSED:

May 3, 2006

On appeal from the judgment of Justice Keith A. Hoilett of the Superior Court of Justice, dated July 21, 2004 made at Toronto, Ontario.

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

[1] The appellant submits that it is entitled to a new trial because of deficiencies in the trial judge’s reasons. City Commercial contends that the trial judge failed to make any findings of fact or credibility on the disputed versions of what occurred. Therefore, the appellant contends that the reasons of the trial judge preclude meaningful appellate review.

[2] We accept that the trial judge did not expressly resolve many of the disputes in the evidence. Nor did he make express findings of credibility. However, his reasons do permit this court to perform its review function, and, in particular, to understand the basis for the trial judge’s decision.

[3] Central to the appellant’s claim is that information about the availability of Hazelton Lanes and its likely purchase price was confidential information, and that the appellant communicated this information to Faraci and Bakich under an oral agreement of confidentiality as outlined in paragraph 15 of its factum.

[4] The trial judge rejected both branches of the claim and gave reasons for doing so at paragraphs 42 and 43 of his judgment.

[5] In our view, these reasons are grounded in the evidence and in common sense. We accept the trial judge’s view that information about the availability of Hazelton Lanes for purchase, and its likely purchase price, would have been easily obtained in the Yorkville area. Even more significant, as the trial judge pointed out, there is not a single piece of paper from the appellant supporting its claim to an agreement of confidentiality. In an industry that depends on written documents, this omission amply supports the trial judge’s finding that no agreement existed.

[6] The appeal, therefore, is dismissed with costs in favour of Chan and Combi, fixed in the amount of $15,000 inclusive of disbursements and G.S.T. Counsel for Bakich and Faraci did not file a factum, as our rules require, and in these circumstances is not entitled to costs.