1672370 Ontario Limited v. D. Narducci Holdings Inc., 2010 ONCA 264

DATE: 20100412

DOCKET: C51192

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and Cronk JJ.A.

BETWEEN

1672370 Ontario Limited

Appellant

and

D. Narducci Holdings Inc.

Respondent

and

D. Narducci Holdings Inc.

Plaintiff by Counterclaim

and

1672370 Ontario Limited and Gus Nasr

Defendants by Counterclaim

G. Walkden, for the appellant

J. LoFaso and D. Anthony, for the respondent

Heard: April 8, 2010

On appeal from the judgment of Justice Price of the Superior Court of Justice, dated October 1, 2009.

APPEAL BOOK ENDORSEMENT

[1] The motion judge found that neither party was prepared to close on the date agreed upon in the settlement. That finding was open to him on the evidence. His reference to the appellant’s failure to tender payment is not a misapprehension of the evidence. There were funds to be provided on closing ($10,000). In any event, the motion judge’s finding is based on the totality of evidence not just the question of whether funds were provided.

[2] As neither party could close, the appellant could not unilaterally terminate as the agreement purported to do in September 2008. The respondent was entitled to fix a new closing date and he did so – October 31, 2008: King v. Urban & Country Transport Ltd. (1973), 1 O.R. (3d) 449 (C.A.).

[3] The motion judge found that the respondent could close on October 31, 2008. The appellant claims that the motion judge misapprehended the evidence he relied on in making that finding. In particular, the appellant submits that the evidence does not support the motion judge’s finding that as of the closing date the utilities did reach the lot line. The trial judge canvassed the evidence at some length. We see no misapprehension. The evidence was capable of supporting his conclusion at para. 104.

[4] In any event, the representation with respect to the utilities was a warranty and not a condition precedent to closing. Even if the respondent failed to establish that utilities reached the lot line, the appellant was still required to close. His remedy in the event that the representation was inaccurate was a claim for damages on the warranty.

[5] Counsel for the respondent has also indicated that his client remains willing to warrant that utilities reach the lot line as part of the closing. The order of the motion judge should be amended to provide for that warranty. The order will be further amended to provide for a closing of May 10, 2010. Otherwise, the appeal is dismissed.

[6] The respondent is entitled to costs in the amount of $18,000, inclusive of disbursements and GST. The $15,000 posted as security costs should be released to the respondent or his solicitor on account of the cost order made on the appeal.