DATE: 20060117

DOCKET: C40773

COURT OF APPEAL FOR ONTARIO

RE:

DICAL INVESTMENTS LIMITED and 1345975 ONTARIO LIMITED (Appellants/Plaintiffs) v. THE CORPORATION OF THE TOWN OF AURORA (Respondent/Defendant)

BEFORE:

DOHERTY, SHARPE and ARMSTRONG JJ.A.

COUNSEL:

Maurice J. Neirinck

for the appellant/plaintiff

J. Murray Davison, Q.C. and

Bryan D. Rumble

for the respondent/defendant

HEARD & ENDORSED:

January 16, 2006

On appeal from the judgment of Justice Hoilett of the Superior Court of Justice dated September 8, 2003.

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

[1] The trial judge made a finding of fact that there was no real intention on the part of the “would be” purchasers and the appellant to enter into the agreement to purchase the properties. That finding, although contrary to the oral evidence of the “would be” purchasers, was consistent with their conduct and that of the appellant. Put bluntly, the “would be” purchasers did not react to the alleged misrepresentation of the respondent’s employees in a manner consistent with the conduct of persons who had a real intention to purchase the property. The finding of fact is not unreasonable and does not suggest palpable and overriding error. The finding cannot be disturbed. The appellant’s claim cannot succeed unless this finding of fact is set aside.

[2] We disagree with the submission that the missing portions of the transcript have relevance to our review of this finding of fact. It acknowledged that the missing evidence does not touch on this factual issue at all. We cannot accept the contention that the appellants’ inability, because of the missing transcript, to demonstrate error in other factual findings, prejudice their ability to challenge the factual finding referred to above.

[3] The appeal is dismissed. Costs to the respondent on a partial indemnity basis fixed at $12,000, inclusive of disbursements and GST.