Court File and Parties

Citation: Paolini Supermarket Limited v. Pagliuca, 2007 ONCA 617

Date: 2007-09-12

Docket: C46479

Court of Appeal for Ontario

MacPherson, Sharpe and Juriansz JJ.A.

Between:

Paolini Supermarket Limited Appellant/Respondent

and

Angelo Pagliuca and Diamante Pagliuca Respondents/Applicants

Counsel:

Patrick Summers for the appellant/respondent

Mauro Marchioni for the respondents/applicants

Heard: September 11, 2007

On appeal from the judgment of Justice J. McIsaac of the Superior Court of Justice dated December 7, 2006.

Appeal Book Endorsement

[1] We see no error in the finding of trespass. The appellant in effect appropriated 210 sq. metres of the respondents’ land to facilitate the construction of a Tim Hortons. The appellant offered no evidence that the cost of removing the encroachment would be oppressive. The land on which the berm was constructed is a 66’ wide strip affording access to the respondents’ lands. While the trial judge directed the trial of an issue as to damages, he was entitled on the record to order an injunction and as he did so, the only issue remaining as to damages relates to any loss up to the time the encroachment is removed.

[2] Accordingly, the appeal is dismissed. Costs to the respondent fixed at $5,000 inclusive of disbursements and GST.