DATE: 20060322

DOCKET: C43532

COURT OF APPEAL FOR ONTARIO

RE:

1127905 ONTARIO INC., carrying on business as VALENZI RISTORANTE AND BANQUET HALL (Respondent/Plaintiff) – and – SHRIGOBIN MISIR also known as GOVIN MISIR and MOLLY MISIR (Appellants/Defendants)

BEFORE:

SHARPE, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

David S. Steinberg

for the appellants

Chris J. Dockrill

for the respondent

HEARD & ENDORSED:

March 21, 2006

On appeal from the judgment of Justice Sidney N. Lederman of the Superior Court of Justice dated April 13, 2005..

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

[1] We see no error on the part of the trial judge that would justify the intervention of this court. It was open on the evidence for the trial judge to conclude that the appellants agreed to assume personal responsibility for food services provided to the appellants, their family and their business associates. As between the appellants and the respondent, the appellants assumed liability for the account and it was left to the appellants and SLM to determine who was responsible.

[2] The case at trial was argued on the basis that SLM was solely responsible for the account. That was rejected by the trial judge. The appellants did not advance before the trial judge the submission made before this court, namely, that they were liable for all meals provided when they were present at the restaurant but not for meals allegedly provided to others from SLM when they were not present. In our view, having presented their case on one basis, it is not open to them to shift ground, and present it on another basis before this court, particularly as on the appellant’s own submission, a reference would be required to develop the evidence that would be needed to resolve the case on the basis now advanced.

[3] Accordingly, despite Mr. Steinberg’s able submission, the appeal is dismissed. Costs to the respondents fixed at $8,803.43 inclusive of disbursements and GST.