



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 judges 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.


