COURT OF APPEAL FOR ONTARIO

CITATION: Heger v. Varajao, 2013 ONCA 732

DATE: 20131204

DOCKET: C56103

Hoy A.C.J.O., Feldman and van Rensburg JJ.A.

BETWEEN

Elizabeth Heger and Heinrich Heger

Plaintiffs (Appellants)

and

Michael Varajao, Albert Varajao, Frank Fiorilli, 2141894 Ontario Inc. and 1655608 Ontario Limited

Defendants (Respondents)

John J. Adair, for the plaintiffs (appellants)

Scott Rosen, for the defendants (respondents) Varajao and 2141894 Ontario Inc.

Heard and released orally: November 21, 2013

On appeal from the judgment of Justice T.R. Lofchik of the Superior Court of Justice, dated September 14, 2012.

ENDORSEMENT

[1] The appellants argue that the trial judge failed to consider relevant evidence and erred in his reasoning. We do not agree.

[2] We are not satisfied that Mr. Fiorilli’s evidence directly contradicted the evidence of Mr. Varajao that the trial judge relied on. It was open to the trial judge to accept the direct and unequivocal evidence of Mr. Varajao.

[3] The appellants argue that the trial judge also erred because he improperly treated the house lease as operative despite the provision in it that it was void if the barn lease was not valid. The trial judge’s failure to refer to the provision referenced by the appellants is of no moment. The respondent 214 claimed monetary damages under the principle of unjust enrichment. The trial judge effectively considered the house lease for purposes of determining the quantum of the appellants’ unjust enrichment.

[4] Nor do we accept that the trial judge’s finding with respect to the leases (namely that the appellants were not obliged to pay the respondents rent in respect of the barn because the barn was of no use to them and the respondents had no obligation to repair the barn) revealed an inconsistency in his reasoning. The former finding negated the respondents’ claim of unjust enrichment with respect to the barn; the latter was a finding as to a lack of contractual obligation.

[5] We accordingly dismiss this appeal. The respondents 214 and Albert Varajao shall be entitled to costs in the agreed upon amount of $6,500, inclusive of disbursements and HST.

“Alexandra Hoy A.C.J.O.”

“K. Feldman J.A.”

“K. van Rensburg J.A.”