DATE: 20060705

DOCKET: C42967, C42968

COURT OF APPEAL FOR ONTARIO

RE:

DENIS IVANDAEV (Respondent/Plaintiff) – and – WALTER HLEMBIZKY and AUDREY HLEMBIZKY (Appellants/ Defendants) – and between – IVANDAEVA TOTAL IMAGE SALON INC. and DENIS IVANDAEV (Respondents/Plaintiffs) – and – WALTER HLEMBIZKY c.o.b. as DERMOCARE CLINIC (Appellant/Defendant)

BEFORE:

O’CONNOR A.C.J.O. LABROSSE and FELDMAN JJ.A.

COUNSEL:

Laughlin J. Campbell & Nicholas C. Bader

for the appellants

M. Michael Title and Antonin I. Pribetic

for the respondents

HEARD & ENDORSED:

July 4, 2006

On appeal from the judgment of Justice Katherine E. Swinton of the Superior Court of Justice dated December 21, 2004.

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

[1] We are not persuaded that the trial judge erred in the exercise of her discretion in granting the respondents partial relief from forfeiture. She properly found that the effect of clause 7.06 was penal at the time when the contract was terminated.

[2] She went on to consider the issues of unconscionability. In doing so, she properly considered the disparity between the value of the work performed and the amount of the instalments that would be forfeited under the contract. Because of the large amount of the disparity, she found that the retention of the full amount of the instalments would be unconscionable. We see no error in the trial judge’s reasons.

[3] As to costs, we see no basis to interfere with the judge’s award.

[4] Costs of the appeal are in the amount of $10,000 inclusive of disbursements and GST.