DATE: 20060323

DOCKET: C43859

COURT OF APPEAL FOR ONTARIO

RE:

SHOPPERS REALTY INC. (Applicant/Appellant) v. MEDICAL PROPERTIES MANAGEMENT INC. and MEDICAL PROPERTIES ACQUISITION INC. (Respondents/Respondents in Appeal)

BEFORE:

DOHERTY, MOLDAVER and GILLESE JJ.A.

COUNSEL:

Neil S. Rabinovitch and Alex Van Kralinger

for the appellant

John Downing

for the respondent

HEARD & ENDORSED:

March 21, 2006

On appeal from the judgment of Justice J.F. McGarry of the Superior Court of Justice dated June 14, 2005.

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

[1] Counsel for the appellant concedes, properly in our view, that the application judge cannot be criticized for rejecting the evidence of the appellant’s appraiser. Based on the evidence of the respondent’s appraiser, a substantial increase in the rent over the 1995 rate was clearly justified. As the application judge observed, fixing the exact amount is more art than science. We agree. We can find no misapprehension of the evidence, or failure to consider evidence. We also reject the submission that findings were made that were unsupported by the evidence.

[2] The appeal is dismissed. Costs to the respondent on a partial indemnity basis fixed at $22,000, all inclusive of GST and disbursements.