CITATION: 1721789 Ontario Inc. v. 985091 Ontario Ltd., 2010 ONCA 14
DATE: 20100112
DOCKET: C50944
COURT OF APPEAL FOR ONTARIO
Simmons, Cronk and LaForme JJ.A.
BETWEEN:
1721789 Ontario Inc.
Plaintiff/Defendant by Counterclaim (Appellant)
and
985091 Ontario Ltd.
Defendant/Plaintiff by Counterclaim (Respondent)
Alvin M. Meisels, for the appellant
Howard W. Reininger, for the respondent
Heard and released orally: January 4, 2010
On appeal from the judgment of Justice G.R. Strathy of the Superior Court of Justice dated July 16, 2009.
ENDORSEMENT
[1] The respondent sold the appellant a coin car wash business for approximately $2 million and accepted a vendor take back mortgage for $1.472 million in part payment of the purchase price.
[2] About a year after the transaction was completed, the appellant sued the respondent, claiming that the respondent had misrepresented the revenues that would be generated by the business and breached a warranty relating to a pylon sign. The respondent disputed the appellant's claims and counterclaimed for the amount owing on its mortgage.
[3] On a motion for summary judgment brought by the respondent, the motion judge dismissed the appellant's action and granted summary judgment to the respondent for possession of the mortgaged premises and payment of the amount owing on the vendor take back mortgage.
[4] Although the appellant raises several issues on appeal, in essence it contends that the motion judge applied the test for granting summary judgment improperly.
[5] We do not accept this submission.
[6] Concerning the appellant's assertion that the respondent misrepresented the car wash's business income, the Agreement of Purchase and Sale contained an entire agreement clause confirming that there were no representations, warranties, collateral agreements or conditions affecting the agreement other than as contained in the Agreement of Purchase and Sale. The appellant deleted conditions in the contract providing for disclosure of financial statements for the car wash business and requiring that the appellant be satisfied with the financial statements. Moreover, the Agreement of Purchase and Sale also provided that all representations would merge on closing.
[7] Accordingly, in order to succeed with a claim for misrepresentation, the appellant had to demonstrate a genuine issue for trial as to whether there had been a fraudulent misrepresentation. The motion judge properly considered the essential elements of a claim of fraudulent misrepresentation and concluded on all the evidence before him that there was no genuine issue for trial concerning whether several of the necessary prerequisites for such a claim were not met in this case. We agree with his conclusion.
[8] Concerning the pylon sign, the appellant acknowledges that the sign was installed after closing and that only the foundation for the sign was constructed prior to closing. On the record before him, the motion judge was correct to conclude that there was no evidence to support the appellant’s claim that the respondent had breached any representation or warranty contained in the closing documents – including the Agreement of Purchase and Sale and the vendor’s Statutory Declaration – regarding the sign and the lease for the sign.
[9] In oral argument, the appellant acknowledged that the motion judge made no error in relation to the expropriation issue.
[10] The appeal is therefore dismissed.
[11] The costs of the appeal and the motion for security for costs are awarded to the respondent on a substantial indemnity basis, fixed in the amount of $12,000.00, inclusive of disbursements and GST.
“Janet Simmons J.A.”
“E.A. Cronk J.A.”
“H.S. LaForme J.A.”