Court of Appeal for Ontario

Date: 2018-10-01 Docket: C64930

Judges: Simmons, Miller and Fairburn JJ.A.

Between

Robert Jensen and Precision Granite Inc. Plaintiffs (Appellants)

and

Darryl Chicoine and 1445573 Ontario Inc. Defendants (Respondents)

Counsel

Douglas G. Christie, for the appellants

Brian R. Kelly, for the respondents

Hearing and Release

Heard and released orally: September 28, 2018

On appeal from: the judgment of Justice R.A. Lococo of the Superior Court of Justice, dated January 5, 2018.

Reasons for Decision

[1] The parties entered into an agreement without the assistance of legal counsel for the purchase of a business. At an initial stage, before they finalized all the terms of their agreement, Mr. Jensen paid $100,000 to Mr. Chicoine toward the agreed-upon purchase price of $500,000. The parties ultimately agreed not to proceed with the purchase and sale agreement and entered into what the trial judge referred to as a termination agreement.

[2] The trial judge found the $100,000 was a deposit, but that the relationship between the parties broke down without legal fault on either side. He further found that when the parties entered into their termination agreement, "their intention was to terminate the arrangements between them on the terms set out in that agreement".

[3] Although the termination agreement did not refer specifically to the $100,000 deposit, the trial judge concluded that the intention of the parties was that the $100,000 would be left with the respondent. The trial judge arrived at his conclusion based on the terms of the termination agreement and the overall circumstances of the case. The appellant has not identified any palpable and overriding error in this interpretation. We see no basis on which to interfere.

[4] The appeal is dismissed.

[5] Costs of the appeal are to the respondents on a partial indemnity scale, fixed in the amount of $15,000, inclusive of disbursements and applicable taxes.

"Janet Simmons J.A."

"B.W. Miller J.A."

"Fairburn J.A."