Dardha v. Theodore, 2011 ONCA 430

CITATION: Dardha v. Theodore, 2011 ONCA 430

DATE: 20110603

DOCKET: C51251

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Simmons and Juriansz JJ.A.

BETWEEN

Namik Dardha and Dardha Petroleum Corporation

Plaintiffs (Respondents)

and

Rob Theodore a.k.a. Rabindranauth Theodore, Front and Sher Auto Repairs Ltd., Sacha Theodore and Adil Bharwani

Defendants (Appellants)

Counsel:

Michael G. Cochrane, for the appellants Rob Theodore a.k.a. Rabindranauth Theodore, Front and Sher Auto Repairs Ltd. and Sacha Theodore

Yan David Payne, for the respondents

Heard & released orally: June 1, 2011

On appeal from the judgment of Justice J. Greer of the Superior Court of Justice dated October 16, 2009.

ENDORSEMENT

[1] The appellant’s position rests on the trial judge’s findings that he made a number of fraudulent misrepresentations that induced the respondent to enter into the contract.

[2] The statement of claim, as we read it, does conduct amounting to plead fraud. However, as the appellant points out, the respondent’s counsel stated at the outset of the trial that he was not making a claim of fraud.

[3] We agree that in these circumstances the trial judge could not grant a remedy based on fraud. We do not agree, however, that the trial judge was limited in how she could characterize the appellant’s conduct, as long as the remedy she gave rested on causes of action that were pleaded and claimed, and supported by her findings.

[4] In this case the trial judge did expressly characterize the appellant’s initial misrepresentation in the form of an ad, as negligent. As we read her reasons, she considered the other misrepresentations to be negligent as well. Her findings support this characterization. Additionally, the authorities she cited in support of her conclusions are negligent misrepresentation cases, for the most part.

[5] Appellant’s counsel fairly acknowledges that the remedy the trial judge awarded would be fully justified on findings that the misrepresentations were negligent.

[6] It follows that the appeal must be dismissed.

[7] Costs in favour of the respondent are fixed in the amount of $15,000.00 all inclusive.