Court of Appeal for Ontario

Citation: Stokes v. Marvost, 2012 ONCA 74

Date: 2012-02-03

Docket: C54278

Before: Rosenberg, Juriansz and Rouleau JJ.A.

Between:

Nigel Stokes and Marcia Cardamore Appellants (Defendants)

and

Mohammadreza Taherizadeh Marvost Respondent (Plaintiff)

Counsel: Charles W. Skipper and Myriah L. Graves, for the appellants David E. Greenwood and Melanie I. Francis, for the respondent

Heard and endorsed: February 2, 2012

On appeal from the order of Justice Nancy Backhouse of the Superior Court of Justice, by way of summary judgment, dated August 12, 2011.

APPEAL BOOK ENDORSEMENT

[1] As to the appeal, the parties agreed that this was an appropriate case for summary judgment. The appellants concede that the motion judge stated the proper test. Counsel submits, however, that she did not properly apply the test by giving undue emphasis to the subjective elements. We do not agree. The respondent’s wife articulated the reasons for their view that this house was unique. It was open to the motion judge to accept those reasons. The affidavits and cross examination of Ms. Ettehad was sufficient to meet the burden of proof of uniqueness given her relationship with the purchaser. The parties agree that the sale is to close within 90 days.

[2] Accordingly, the appeal is dismissed.

[3] Assuming without deciding that this is a proper case for a cross-appeal, the respondent has not demonstrated that he suffered any further damages.

[4] Accordingly, the cross-appeal is dismissed.

[5] The respondent is entitled to the costs fixed at $6,269.61, inclusive of disbursements and H.S.T.