DATE: 20060918

DOCKET: C43203

COURT OF APPEAL FOR ONTARIO

RE:

DATILE FINANCIAL CORPORATION INC., DUKESHIRE ESTATES INVESTMENTS INC., DUKESHIRE ESTATES INC., DATILE PROPERTY MANAGEMENT LTD., DATILE SECURITIES INC., BURNSIDE TERRACE INVESTMENTS INC. (Plaintiffs (Appellants)) – and – ROYAL TRUST CORPORATION OF CANADA, DONALD ACKLAND and THOMAS RUTHERFORD (Defendants (Respondents))

BEFORE:

O’CONNOR A.C.J.O., CRONK and LANG JJ.A.

COUNSEL:

James C. Morton

for Datile Financial Corporation Inc.

Brett D. Moldaver and Kelli Preston

for Royal Trust Corporation

HEARD & RELEASED ORALLY:

September 14, 2006

On appeal from the judgment of Justice C. Horkins of the Superior Court of Justice dated February 18, 2005.

E N D O R S E M E N T

[1] The appellant appeals on the sole ground that the fees in question are “commitment fees” paid to the respondent that are refundable to the appellant because the respondent’s financing of two development projects did not proceed.

[2] At trial, the parties agreed that there was a contract under which the respondent would provide financing to the appellant. The trial judge held that the terms of the contract between the parties were set out in the respondent bank’s commitment letters of August 3 and 15, 1990. She also found that the fees paid pursuant to this contract were non-refundable valuation and processing fees as clearly stipulated in the commitment letters. The transactions were not completed because the appellant subsequently asserted that the terms of the contract were different than those found by the trial judge.

[3] Whatever the appellant’s expectations regarding the nature of the contract that differed from those of the respondent, the appellant accepted the terms of the commit-ment letters and paid the fees in issue without reservation. We see no basis to interfere with the trial judge’s interpretation of the meaning of the terms of the contract. The respondent remained prepared to carry out the financing on the terms set out in the commitment letters. The appellant refused to proceed. In our view, the trial judge correctly concluded that, in these circumstances, the fees paid should not be refundable.

[4] Accordingly, the appeal is dismissed. The appellant shall pay the costs of this appeal to the respondent, fixed in the amount of $7,500, inclusive of disbursements and GST.

“Dennis O’Connor A.C.J.O.”

“E.A. Cronk J.A.”

“S. E. Lang J.A.”