Court of Appeal for Ontario

Date: 2019-10-22 Docket: C66680

Judges: Feldman, Fairburn and Jamal JJ.A.

Between

Gary Fung Applicant (Respondent)

and

Decca Homes Limited and Javad Akbari Balderlou a.k.a. Javad Akbari-Balderlou a.k.a. Javad Akbari Respondents (Appellants)

Counsel

Tariq Muinuddin, for the appellants

David Schatzker, for the respondent

Heard and released orally: October 22, 2019

On appeal from: the order of Justice William S. Chalmers of the Superior Court of Justice, dated February 28, 2019.

Reasons for Decision

[1] The respondent overpaid the appellants for work done on a construction project. The appellants agreed. Accordingly, the appellants wrote the respondent a $150,000 cheque, the amount of the overpayment, but asked that the respondent not cash the cheque.

[2] The parties later entered into a demand promissory note for that same amount. An irrevocable direction was given to a law firm to pay that amount to the respondent from the proceeds of other properties once sold. The appellants admitted that the respondent's overpayment had been directed into those properties.

[3] The respondent believed that the appellants had abandoned his project when, among other things, the appellants failed to respond to a series of the respondent's emails. The respondent made a written demand on the note. When it was not paid, the respondent brought an application for payment. That application was granted.

[4] The appellants say that the application judge erred by failing to take into account an oral agreement that is said to have modified the written promissory note. That oral agreement is said to have been made at the same time that the note was entered into.

[5] We see no error in the application judge's application of the parol evidence rule in the circumstances of this case: Hawrish v. Bank of Montreal, [1969] S.C.R. 515, at p. 520. Even if there was a collateral oral agreement, something that is disputed by the respondent, that oral agreement could not contradict the written agreement. Accordingly, we agree with the application judge that the written agreement prevails and that the respondent could enforce the note. It was contingent on nothing.

[6] The appellants also raise for the first time in oral submissions the absence of consideration for the personal indemnity. We do not accept this argument. The indemnity specifically states that it was given for consideration and made under seal.

[7] The appeal is dismissed with costs to the respondent in the amount of $5,000, inclusive of disbursements and HST.

"K. Feldman J.A."

"Fairburn J.A."

"M. Jamal J.A."