COURT OF APPEAL FOR ONTARIO

CITATION: Zambri v. Grammelhofer, 2010 ONCA 780

DATE: 20101118

DOCKET: C51524

Rosenberg, Moldaver and Karakatsanis JJ.A.

BETWEEN:

Elizabeth Zambri

Plaintiff (Respondent)

and

Peter Grammelhofer and Lillian Kuehn

Defendants (Appellants)

Jeffrey R. Robles, for the appellants

Paul Bigioni, for the respondent

Heard and endorsed: November 17, 2010

On appeal from the judgment of Justice Bruce Glass of the Superior Court of Justice dated November 23, 2009 and the judgement on costs dated December 18, 2009.

APPEAL BOOK ENDORSEMENT

[1] The trial judge made very strong findings of fact against the appellants. Based on those findings the trespass was established long before Mr. Grammelhoffer purchased the sister’s interest. It follows that the trial judge was therefore entitled to make the mandatory order. There was evidence to support the amount of damages and we have not found any palpable and overriding error in his assessment of those damages.

[2] We are also satisfied that given the egregious nature of the trespass, it was open to the trial judge to award punitive damages. For similar reasons, it was open to the trial judge to refuse to order partition.

[3] Finally, we see no error in principle in the decision to award costs on a substantial indemnity basis.

[4] Paragraph 3 of the judgment is amended to refer to July 1, 2011. Subject to that modification, the appeal is dismissed with costs fixed at $5,552.82, inclusive of disbursements and applicable taxes.