



COURT OF APPEAL FOR ONTARIO

CITATION: 2316796 Ontario Inc. v. Chetti, 2018 ONCA 336

DATE: 20180405

DOCKET: C62691

Strathy C.J.O., Roberts and Paciocco JJ.A.

BETWEEN

2316796 Ontario Inc.

Applicant
(Respondent in Appeal)

and

John Chetti

Respondent
(Appellant in Appeal)

Eric Sherkin, for the appellant

Tanya Walker and James Coristine, for the respondent

Heard and released orally: March 29, 2018

On appeal from the judgment of Justice Mario D. Faieta of
    the Superior Court of Justice, dated August 17, 2016.

REASONS FOR DECISION

[1]

The application judge found that the appellant repudiated the Agreement
    of Purchase and Sale for the respondents business. After granting
    rectification of the closing date, he found that the appellant had waived the
    deadline for closing, and for the delivery of the landlords consent to the
    assignment of the lease and had agreed to pay rent in the interim. He also
    found that the landlord ultimately delivered his consent in the form of a
    one-page handwritten document, which was signed by all parties in September
    2014.

[2]

Counsel for the appellant acknowledges that this is largely an appeal of
    the application judges findings of fact, and that the standard of review requires
    a demonstration of palpable and overriding error in the application judges
    assessment of the evidence.

[3]

He makes two submissions: first, that the application judge erred in
    finding that the appellant waived the rectified date for closing. We do not
    accept that submission. The application judge identified the correct legal test
    for waiver and made findings of fact from which waiver could be inferred. These
    included the fact that the appellant went into possession of the premises and
    carried out renovations. In addition, there was evidence that the appellant
    acknowledged an obligation to pay rent pending closing. This evidence, and the
    appellants own evidence, provided an ample basis for the application judges
    finding of waiver.

[4]

Second, the appellant argues that the one-page document signed by the
    parties was simply the landlords conditional consent to the assignment, and
    that the conditions had not been met. Again, the application judge made
    findings of fact which informed his interpretation of the handwritten document.
    The application judge accepted the evidence of Mr. Varga for the respondent
    that the landlord was prepared to consent to the assignment, provided the
    appellant paid rent as he had promised to do.

[5]

The appellant has demonstrated no error in the application judges
    conclusion on this issue.

[6]

The appellants ground of appeal relating to
Bulk Sales Act
compliance was not pursued in oral argument, and we did not call on the
    respondent to address it. In view of the appellants repudiation of the agreement,
    we see no merit to this ground in any event.

[7]

Costs to the respondent in the amount of $9,250, all inclusive.

G.R. Strathy C.J.O.

L.B. Roberts J.A.

David M. Paciocco
    J.A.


