





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 appellants position rests on the trial judges 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 respondents 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 appellants 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 appellants
    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]

Appellants 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 i
nclusive.


