Dical Investments Limited v. Aurora (Town)
The trial judge's finding that there was no real intention to purchase was supported by the parties' conduct, was not unreasonable or palpably and overridingly erroneous, and the missing transcript portions were not relevant to that factual issue; therefore the finding stands and the appeal must be dismissed.
Source-derived case information.
- Citation
- C40773
- Parties
- Appellant/plaintiff: Dical Investments Limited; Appellant/plaintiff: 1345975 Ontario Limited; Respondent/defendant: The Corporation of the Town of Aurora
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 18 January 2006
- Procedural Posture
- Civil / Appeal to Court of Appeal From Superior Court Judgment
- Outcome
- Appeal dismissed.
- Legal Topics
- Misrepresentation, Intention to Contract, Appellate Review, Evidence, Costs
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dical Investments Limited
Appellant/plaintiff
1345975 Ontario Limited
Appellant/plaintiff
The Corporation of the Town of Aurora
Respondent/defendant
Procedural Posture
Civil / Appeal to Court of Appeal From Superior Court Judgment
Legal Issues
- 1 Whether the trial judge erred in finding there was no real intention to enter the purchase agreements
- 2 Whether missing portions of the transcript prejudiced the appellants' ability to challenge the trial judge's factual findings
Ratio Decidendi
The trial judge's finding that there was no real intention to purchase was supported by the parties' conduct, was not unreasonable or palpably and overridingly erroneous, and the missing transcript portions were not relevant to that factual issue; therefore the finding stands and the appeal must be dismissed.
Court Disposition
Appeal dismissed.
Orders
- Costs to the respondent on a partial indemnity basis fixed at $12,000 inclusive of disbursements and GST.
Full Case Text
Judgment text and source record
1 paragraphs
Dical Investments Limited v. Aurora (Town) Collection Decisions of the Court of Appeal Date 2006-01-18 Docket numbers C40773 Judges Doherty, David H.; Sharpe, Robert J.; Armstrong, Robert Patrick Subject Civil Decision Content DATE: 20060117 DOCKET: C40773 COURT OF APPEAL FOR ONTARIO RE: DICAL INVESTMENTS LIMITED and 1345975 ONTARIO LIMITED (Appellants/Plaintiffs) v. THE CORPORATION OF THE TOWN OF AURORA (Respondent/Defendant) BEFORE: DOHERTY, SHARPE and ARMSTRONG JJ.A. COUNSEL: Maurice J. Neirinck for the appellant/plaintiff J. Murray Davison, Q.C. and Bryan D. Rumble for the respondent/defendant HEARD & ENDORSED: January 16, 2006 On appeal from the judgment of Justice Hoilett of the Superior Court of Justice dated September 8, 2003. APPEAL BOOK ENDORSEMENT [1] The trial judge made a finding of fact that there was no real intention on the part of the “would be” purchasers and the appellant to enter into the agreement to purchase the properties. That finding, although contrary to the oral evidence of the “would be” purchasers, was consistent with their conduct and that of the appellant. Put bluntly, the “would be” purchasers did not react to the alleged misrepresentation of the respondent’s employees in a manner consistent with the conduct of persons who had a real intention to purchase the property. The finding of fact is not unreasonable and does not suggest palpable and overriding error. The finding cannot be disturbed. The appellant’s claim cannot succeed unless this finding of fact is set aside. [2] We disagree with the submission that the missing portions of the transcript have relevance to our review of this finding of fact. It acknowledged that the missing evidence does not touch on this factual issue at all. We cannot accept the contention that the appellants’ inability, because of the missing transcript, to demonstrate error in other factual findings, prejudice their ability to challenge the factual finding referred to above. [3] The appeal is dismissed. Costs to the respondent on a partial indemnity basis fixed at $12,000, inclusive of disbursements and GST.