Banca Commerciale Italiana of Canada v. Finestkind Homes (Sousa) Inc.

Banca Commerciale Italiana of Canada v. Finestkind Homes (Sousa) Inc. Collection Decisions of the Court of Appeal Date 1999-05-27 Docket numbers C26828 Judges Labrosse, Jean-Marc; Goudge, Stephen Thomas; Borins, Stephen Subject Civil Decision Content DATE: 19990527 DOCKET: C26828 COURT OF APPEAL FOR ONTARIO RE: BANCA COMMERCIALE ITALIANA OF CANADA (Plaintiff/ Respondent) v. FINESTKIND HOMES (SOUSA) INC., BAYTIN HOLDINGS INC., 824461 ONTARIO LIMITED, ANTONIO SOUSA, MARIA SOUSA, FRANCESCO JANNARONE, ROSETTA JANNARONE, RUSSELL BAYK0, TINA BAYKO, CHUN LEUNG, YUEN CHING CHEUNG and HUI HUNE & WONG, CATERINA GALATI and GALATI, GULYCZ (Defendants/Baytin Holdings Inc., Russell Bayko and Tina Bayko, Appellants, Finestkind Home (Sousa) Inc., Antonio Sousa and Hui, Hune & Wong, Respondents) BEFORE: LABROSSE, GOUDGE and BORINS JJ.A. COUNSEL: Michael A. Handler, for the appellants Baytin Holdings Inc., Russell Bayko and Tina Bayko Nelson E. Cavalheiro, for the respondents Finestkind Homes (Sousa) Inc. and Antonio Sousa Ronald E. Carr, for the respondent Hui, Hune & Wong HEARD: May 25, 1999 On appeal from a decision of Hoilett J. dated August 26, 1996, and addenda dated February 5, 1996 and July 3, 1997. ENDORSEMENT [1] The appellants, Baytin Holdings and Russell and Tina Bayko, appeal those parts of the judgment of Hoilett J. dealing with the issues of indemnity and costs. [2] The Berkindale joint venture was financed by the bank. The bank's loan was secured by way of a first mortgage and various guarantees. [3] As a result of a disagreement among the joint venturers, Finestkind purchased the interests of its co-venturers. On the sale of the property, in order to obtain a deed conveying title to the purchasers, Finestkind had to agree to indemnify and save harmless its co-venturers from any loss sustained as a result of the execution of the deed. [4] Following the sale of the property, the bank sued the co- venturers, the guarantors and others to recover the shortfall. [5] The appellants raise three issues on this appeal. [6] The first issue is with respect to the scope of the indemnity owed by Finestkind to the appellant Baytin Holdings. The trial judge made no finding of an indemnity being an implied term of the sale of the appellant’s share of the joint venture in May 1990 and there is no basis for us to do so. The written indemnity given in December 1990 cannot, in our view, be stretched to cover the appellant’s full losses. Indeed, were it up to us, we would find the indemnity agreement limited to those losses flowing from the execution of the deed. [7] With respect to the trial judge’s quantification of the amount of the indemnity, there was an evidentiary basis for this finding and hence we would not interfere. This ground of appeal therefore fails. [8] Secondly, the appellant Baytin Holdings argues that it is entitled to full indemnity from Hui Hune & Wong, the solicitors for the purchasers of the property. The trial judge found that the indemnity of the solicitors extended only to the holdback moneys. We see no basis to extend the indemnity of the solicitors further. We were advised during the hearing of the appeal that counsel had agreed as to the proper rate of interest to be paid by the solicitors on the amount which they owe pursuant to the findings of the trial judge. [9] Finally, Baytin Holdings argues that the trial judge erred in the disposition of the costs of the trial. In our view, the trial judge considered all the relevant circumstances in his disposition of the costs of the claims, counterclaims and cross- claims. Keeping in mind the considerable discretion allowed to the trial judge on the issue of costs, we see no basis to interfere. [10] In the result, the appeal is dismissed with costs.