Court of Appeal for Ontario

Date: 2017-07-19 Docket: C63100

Judges: MacPherson, Cronk and Benotto JJ.A.

Between

Scott Andrew D'Ascenzo, 1702620 Ontario Inc. and 1686977 Ontario Inc. Plaintiffs (Respondents/Appellants by way of cross-appeal)

and

Carl Albert Nichols Defendant (Appellant/Respondent by way of cross-appeal)

Counsel

Marcus Boire, for the appellant/respondent by way of cross-appeal

Jean-François Laberge and Manou Ranaivoson, for the respondents/appellants by way of cross-appeal

Heard: In Writing

On cross-appeal from the judgment of Justice Paul Kane of the Superior Court of Justice, dated December 6, 2016.

Reasons for Decision

[1] By reasons dated July 6, 2017, we dismissed the appeal in this case.

[2] On the respondents' cross-appeal, we allowed Mr. Nichols (who we will continue to refer to as the appellant) to file a factum no later than July 14, 2017. He has filed the factum.

[3] The parties agreed that the cross-appeal could then proceed on the basis of the record and facta.

[4] The underlying facts of the parties' contractual relationship are set out in the previous judgment on the appeal.

[5] On the cross-appeal, the respondents raise four discrete and relatively minor issues.

First Issue: Interest Paid Relating to the Petting Zoo

[6] First, the respondents contend that the motion judge erred by denying the return of any interest paid relating to the Petting Zoo based on a finding that the interest was paid to delay the closing. The motion judge found that this delay was a benefit that the respondents obtained.

[7] We agree with this submission. The interest was to be paid, whether or not the closing was delayed, because it was a component of the original purchase price. Moreover, as found by the motion judge, it was the appellant who committed the pivotal breach of the contract. The respondents are entitled to restitution of the interest paid.

Second Issue: Calculation of Principal Owed

[8] Second, the respondents submit that the motion judge's calculation of principal owed to them should have been $142,796, not $122,246.

[9] We disagree. We see no error in the motion judge's mathematics leading to his ultimate calculation.

Third Issue: Prejudgment Interest on Petting Zoo Damages

[10] Third, the respondents assert that the motion judge erred by not granting prejudgment interest on the damages awarded for the Petting Zoo.

[11] We agree. The motion judge awarded prejudgment interest with respect to the Lot 511 issue. We think it was probably just an oversight that he did not make a similar order with respect to the Petting Zoo. In any event, the respondents are entitled to prejudgment interest by virtue of s. 128(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43.

Fourth Issue: Municipal Property Taxes

[12] Fourth, the respondents contend the motion judge erred by not dealing with and awarding $1,955.03 representing the amount paid by the respondents for municipal property taxes on the Petting Zoo.

[13] We agree. Although the motion judge listed this as an issue in paragraph 9(b) of his reasons, he did not return to it. Since those taxes were paid by the respondents with a view to an eventual closing of the sale of the property, the respondents are entitled to a return of the money, together with pre- and post-judgment interest, in light of the failure to close.

Costs

[14] The respondents have been successful on three of the four issues in the cross-appeal. They are entitled to their costs of the cross-appeal fixed at $3,000, inclusive of disbursements and HST.

J.C. MacPherson J.A. E.A. Cronk J.A. M.L. Benotto J.A.