



COURT OF APPEAL FOR ONTARIO

CITATION: D'Ascenzo v. Nichols, 2017 ONCA 604

DATE: 20170719

DOCKET: C63100

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Scott Andrew D'Ascenzo, 1702620 Ontario Inc. and
    1686977 Ontario Inc.

Plaintiffs
    (Respondents/

Appellants by way of
    cross-appeal)

and

Carl Albert Nichols

Defendant (Appellant/

Respondent by way of
    cross-appeal)

Marcus Boire, for the appellant/respondent by way of
    cross-appeal

Jean-François Laberge and Manou Ranaivoson, for the
    respondents/ appellants by way of cross-appeal

Heard: In Writing

On cross-appeal from the judgment of Justice Paul Kane of
    the Superior Court of Justice, dated December 6, 2016.

REASONS FOR DECISION

[1]

By reasons dated July 6, 2017, we dismissed the appeal in this case.

[2]

On the respondents cross-appeal, we allowed Mr. Nichols (who we will
    continue to refer to as the appellant) to file a factum no later than July 14,
    2017. He has filed the factum.

[3]

The parties agreed that the cross-appeal could then proceed on the basis
    of the record and facta.

[4]

The underlying facts of the parties contractual relationship are set
    out in the previous judgment on the appeal.

[5]

On the cross-appeal, the respondents raise four discrete and relatively
    minor issues.

[6]

First, the respondents contend that the motion judge erred by denying
    the return of any interest paid relating to the Petting Zoo based on a finding
    that the interest was paid to delay the closing. The motion judge found that
    this delay was a benefit that the respondents obtained.

[7]

We agree with this submission. The interest was to be paid, whether or
    not the closing was delayed, because it was a component of the original
    purchase price. Moreover, as found by the motion judge, it was the appellant
    who committed the pivotal breach of the contract. The respondents are entitled
    to restitution of the interest paid.

[8]

Second, the respondents submit that the motion judges calculation of
    principal owed to them should have been $142,796, not $122,246.

[9]

We disagree. We see no error in the motion judges mathematics leading
    to his ultimate calculation.

[10]

Third, the respondents assert that the motion judge erred by not
    granting prejudgment interest on the damages awarded for the Petting Zoo.

[11]

We agree. The motion judge awarded prejudgment interest with respect to
    the Lot 511 issue. We think it was probably just an oversight that he did not
    make a similar order with respect to the Petting Zoo. In any event, the respondents
    are entitled to prejudgment interest by virtue of s. 128(1) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C. 43.

[12]

Fourth, the respondents contend the motion judge erred by not dealing
    with and awarding $1,955.03 representing the amount paid by the respondents for
    municipal property taxes on the Petting Zoo.

[13]

We agree. Although the motion judge listed this as an issue in paragraph
    9(b) of his reasons, he did not return to it. Since those taxes were paid by
    the respondents with a view to an eventual closing of the sale of the property,
    the respondents are entitled to a return of the money, together with pre- and
    post-judgment interest, in light of the failure to close.

[14]

The respondents have been successful on three of the four issues in the
    cross-appeal. They are entitled to their costs of the cross-appeal fixed at $3,000,
    inclusive of disbursements and HST.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


