Court of Appeal for Ontario

Citation: Fernicola v. MCAP Financial Corporation, 2010 ONCA 109

Date: 2010-02-09

Docket: C51065

Judges: Doherty, Laskin and Lang JJ.A.

Between:

George Fernicola in Trust and Carrington Homes Ltd.

Plaintiffs (Appellants)

and

Creview Development Inc. and MCAP Financial Corporation

Defendant (Respondent)

Counsel:

Alan B. Dryer, for the appellants

Ronald Birken, for the respondent

Heard: February 1, 2010

On appeal from the judgment of Justice Thorburn of the Superior Court of Justice dated August 24, 2009.

APPEAL BOOK ENDORSEMENT

[1] We agree with the disposition of the motion judge and with her concise and clear reasons. In particular, we agree with the findings and observations at paras. 55, 57 and 58. They are determinative.

[2] In argument, counsel for the appellant submitted that Creview’s potential right to a reassignment of the mortgage from MCAP somehow gave the appellant a cause of action against MCAP in respect of the appellant’s claim of entitlement to a readjustment to the purchase price paid to Creview. We disagree. We see no connection between whatever right Creview might have to a reassignment of the mortgage and the existence of any obligation on the part of MCAP to be bound by the terms of the agreement of purchase and sale between the appellant and Creview.

[3] The appeal is dismissed.

Costs

[4] Costs were granted by the motion judge on a substantial indemnity basis. She did so to reflect the terms of the mortgage which provide for costs on a substantial indemnity basis. We also order costs on a substantial indemnity basis fixed at $12,000, inclusive of GST and disbursements.