Court of Appeal for Ontario

Citation: Paradiso v. Talbot, 2007 ONCA 812

Date: 2007-11-26

Docket: C46987

Before: GILLESE, LAFORME and WATT JJ.A.

Between:

EMMA PARADISO and ALESSANDRO PARADISO Plaintiffs/Respondents

and

WILLIAM MONTGOMERY TALBOT Defendant/Appellant

Counsel: Lawrence J. Burns for the appellant John O’Sullivan for the respondents

Heard: November 22, 2007

On appeal from judgment of Justice John McIsaac of the Superior Court of Justice dated March 23, 2004.

APPEAL BOOK ENDORSEMENT

[1] We begin by stating that we see no merit whatsoever in this appeal. The parties operated on the basis of documentation which made it clear, for all of the relevant time, what the boundaries of their respective properties were.

[2] Having said that, we will address the appellant’s primary argument, which is that the trial judge decided the matter on the basis of the equitable doctrine of rectification without giving him the opportunity to address that matter. Even assuming that to be the case, this occasioned no prejudice to the appellant. The validity of the 1962 document was clearly in issue throughout the trial. The trial proceeded on the basis that adverse possession was the appellant’s primary defence. It was the appellant who rose at a late stage in the trial to abandon his claim to adverse possession and challenge the validity of the 1962 document. There was overwhelming evidence before the trial judge to justify his conclusion that the parties had themselves acknowledged the rectification and he so declared.

[3] In respect of the special damages, in the circumstances, the trial judge was entitled to award the costs of erecting the fence and re-erecting it. Both actions were necessary to protect the respondents’ rights.

[4] The appellant did not pursue his appeal on punitive damages having conceded that there was evidence on which the trial judge could find reprehensible behaviours warranting punishment by means of an additional damages award.

[5] Accordingly, the appeal is dismissed with costs to the respondents fixed at $18,500, all inclusive.