Court File and Parties

CITATION: Shivkumar v. Ottawa Prestige Properties Ltd., 2009 ONCA 27

DATE: 20090113

DOCKET: C48781

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Rosenberg and Moldaver JJ.A.

BETWEEN:

Thakoordial Shivkumar

Plaintiff/Applicant (Respondent in Appeal)

and

Ottawa Prestige Properties Ltd. and Ahmed Syed

Defendants/Respondents (Appellants)

COUNSEL:

Kenneth Radnoff, Q.C. for the appellants

Jennifer T. Arrigo, for the respondents

Heard and endorsed: January 12, 2009

On appeal from the judgment of Justice de Lobe Panet of the Superior Court of Justice dated April 18, 2008.

APPEAL BOOK ENDORSEMENT

[1] In our view, the appeal is fact-driven. The trial judge effectively found that the appellant was playing both ends against the middle, in contravention of the consulting agreement. The appellant cannot rely on Royal Trust’s failure to advance funds when he was instrumental in bringing about that result.

[2] Finally, we are of the view that the pleadings and the evidence support the findings of the trial judge. In particular, paragraph 10 of the amended claims states: “Having obtained this mortgage, the Defendants no longer wished to complete the financing proposed by the letter of intent with the Royal Trust Corporation, thereby causing damages to the Plaintiff in the amount claimed”. That, in our view, was sufficient to put the appellant on notice of the issue which he now claims he was unaware of.

[3] Accordingly, the appeal is dismissed. Costs to the respondent in the amount of $13,779.07 inclusive of G.S.T. and disbursements.