Court of Appeal for Ontario

Date: 2019-04-08 Docket: C65234

Judges: Simmons, Juriansz and Miller JJ.A.

Between

8466718 Canada Inc. Plaintiff (Respondent)

and

1779042 Ontario Ltd., 1447735 Ontario Inc. and John Ackerman Defendants (Appellant)

Counsel

Joseph W.L. Griffiths, for the appellant 1447735 Ontario Inc.

Jean-François Laberge, for the respondent

Heard and released orally: April 3, 2019

On appeal from the judgment of Justice Paul Kane of the Superior Court of Justice, dated March 7, 2018.

Reasons for Decision

[1] We reject the appellant's submissions that the trial judge made extricable legal errors in his interpretation of the contracts entered into by the parties. Nor do we find the trial judge's interpretation of the contracts commercially unreasonable having regard to the relationship between the vendor of the business and the landlord of the property on which the business was located.

[2] The trial judge gave lengthy reasons in which he made findings of fact and findings of credibility that supported his conclusion that there were a number of defects in the building on the date of closing that were known to the appellant.

[3] In our view, the appellant's submissions that the trial judge made palpable and overriding errors and failed to provide adequate reasons are no more than an effort to have us retry this case.

[4] We see no basis on which to interfere with the trial judge's order for rescission of the asset purchase agreement based on his alternative findings of fraudulent and negligent misrepresentation that were supported by the record and evidence.

[5] The appeal is therefore dismissed.

[6] Costs of the appeal are to the respondent on a partial indemnity scale in the agreed upon amount of $20,000 inclusive of taxes and disbursements.

"Janet Simmons J.A."

"R.G. Juriansz J.A."

"B.W. Miller J.A."