Dardha v. Theodore
Because respondents' counsel disavowed any fraud claim at trial and the trial judge's findings could be and were characterized as negligent misrepresentation supported by the cited authorities, the remedy awarded was sustainable on negligent misrepresentation and the appeal was dismissed with costs.
Source-derived case information.
- Citation
- 2011 ONCA 430
- Parties
- Respondent: Namik Dardha; Respondent: Dardha Petroleum Corporation; Appellant: Rob Theodore a.k.a. Rabindranauth Theodore; Appellant: Front and Sher Auto Repairs Ltd.; Appellant: Sacha Theodore; Appellant: Adil Bharwani
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 3 June 2011
- Procedural Posture
- Civil Appeal / Court of Appeal Decision (oral Release)
- Outcome
- Appeal dismissed.
- Legal Topics
- Negligent Misrepresentation, Fraud, Remedies, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Namik Dardha
Respondent
Dardha Petroleum Corporation
Respondent
Rob Theodore a.k.a. Rabindranauth Theodore
Appellant
Front and Sher Auto Repairs Ltd.
Appellant
Sacha Theodore
Appellant
Adil Bharwani
Appellant
Procedural Posture
Civil Appeal / Court of Appeal Decision (oral Release)
Legal Issues
- 1 Whether the trial judge could base a remedy on findings of fraud when fraud was not pleaded or pursued at trial
- 2 Whether the trial judge could properly characterize the appellant's misrepresentations as negligent misrepresentation
- 3 Whether the findings support the remedy awarded by the trial judge
Ratio Decidendi
Because respondents' counsel disavowed any fraud claim at trial and the trial judge's findings could be and were characterized as negligent misrepresentation supported by the cited authorities, the remedy awarded was sustainable on negligent misrepresentation and the appeal was dismissed with costs.
Court Disposition
Appeal dismissed.
Orders
- Appeal dismissed.
- Costs in favour of the respondents fixed at $15,000.00 all inclusive.
Full Case Text
Judgment text and source record
1 paragraphs
Dardha v. Theodore Collection Decisions of the Court of Appeal Date 2011-06-03 Neutral citation 2011 ONCA 430 Docket numbers C51251 Judges Winkler, Warren Keith; Simmons, Janet M.; Juriansz, Russell G. Subject Civil Decision Content CITATION: Dardha v. Theodore, 2011 ONCA 430 DATE: 20110603 DOCKET: C51251 COURT OF APPEAL FOR ONTARIO Winkler C.J.O., Simmons and Juriansz JJ.A. BETWEEN Namik Dardha and Dardha Petroleum Corporation Plaintiffs (Respondents) and Rob Theodore a.k.a. Rabindranauth Theodore, Front and Sher Auto Repairs Ltd., Sacha Theodore and Adil Bharwani Defendants (Appellants) Michael G. Cochrane, for the appellants Rob Theodore a.k.a. Rabindranauth Theodore, Front and Sher Auto Repairs Ltd. and Sacha Theodore Yan David Payne, for the respondents Heard & released orally: June 1, 2011 On appeal from the judgment of Justice J. Greer of the Superior Court of Justice dated October 16, 2009. ENDORSEMENT [1] The appellant’s position rests on the trial judge’s findings that he made a number of fraudulent misrepresentations that induced the respondent to enter into the contract. [2] The statement of claim, as we read it, does conduct amounting to plead fraud. However, as the appellant points out, the respondent’s counsel stated at the outset of the trial that he was not making a claim of fraud. [3] We agree that in these circumstances the trial judge could not grant a remedy based on fraud. We do not agree, however, that the trial judge was limited in how she could characterize the appellant’s conduct, as long as the remedy she gave rested on causes of action that were pleaded and claimed, and supported by her findings. [4] In this case the trial judge did expressly characterize the appellant’s initial misrepresentation in the form of an ad, as negligent. As we read her reasons, she considered the other misrepresentations to be negligent as well. Her findings support this characterization. Additionally, the authorities she cited in support of her conclusions are negligent misrepresentation cases, for the most part. [5] Appellant’s counsel fairly acknowledges that the remedy the trial judge awarded would be fully justified on findings that the misrepresentations were negligent. [6] It follows that the appeal must be dismissed. [7] Costs in favour of the respondent are fixed in the amount of $15,000.00 all inclusive.