COURT OF APPEAL FOR ONTARIO

CITATION: 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843

DATE: 20201223

DOCKET: C67665

Tulloch, Miller and Paciocco JJ.A.

BETWEEN

1632093 Ontario Inc. carrying on business as Turn-Key Projects

Plaintiff (Respondent/Appellant by way of cross-appeal)

and

York Condominium Corporation No. 74

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

Antoni Casalinuovo, for the appellant/respondent by way of cross-appeal

Micheal Simaan and Rahul Gandotra, for the respondent/appellant by way of cross-appeal

Heard and released orally: November 20, 2020 by video conference

On appeal from the judgment of Justice Clayton J. Conlan of the Superior Court of Justice, dated October 9, 2019, with reasons reported at 2019 ONSC 5789, and from the costs order, dated January 15, 2020.

REASONS FOR DECISION

[1] In our view, the appellant is essentially seeking to re-litigate the factual findings of the trial judge. It is trite law that an appellate court should not interfere with a trial judge’s reasons unless it finds that there is a palpable and overriding error. A palpable error is one which is clear to the mind or plain to see, so obvious that it could be easily seen or known or readily or plainly seen. An overriding error is one which had a sufficiently decisive effect, such that it would justify intervention and review on appeal.

[2] We see no palpable or overriding error here.

[3] We agree with the submissions of the respondent that in order for the appellant to succeed on this appeal, it would be necessary for this court to in effect overturn the factual findings of the trial judge and substitute the opposite finding asserted by the appellant. We cannot do this. In our view, there was ample evidence to support the factual findings made by the trial judge and as such the appeal on the off-set issue is dismissed.

[4] Now with respect to the cross-appeal on costs, the parties agree that the trial judge erred in principle, in determining success on a distributive-costs basis. Given this error in principle, we cannot defer to the costs disposition. We agree with the appellant that it succeeded in the litigation and that a r. 49 offer to settle was not submitted by the respondent. We allow the costs appeal and dismiss the cross-appeal. We remit the matter back to the trial judge to determine the quantum of costs.

[5] We award costs to the condominium corporation in this appeal the amount of $5,000, all inclusive.

“M. Tulloch J.A.”

“B.W. Miller J.A.”

“David M. Paciocco J.A.”