



COURT OF APPEAL FOR ONTARIO

CITATION: Fulton v. Koa Aloha Inc., 2019 ONCA 408

DATE: 20190516

DOCKET: C65544

Feldman, Paciocco and Fairburn JJ.A.

BETWEEN

Jesse Fulton and Nicole
    White

Plaintiffs (Respondents)

and

Koa Aloha Inc.

Defendant (Appellant)

Christopher Staples, for the appellant

Erroll Treslan, for the respondents

Heard and released orally: May 13, 2019

On appeal from the judgment
    of Justice Conlan of the Superior Court of Justice, dated May 25, 2018.

REASONS FOR DECISION

[1]

The appellant appeals the finding of the trial judge that the parties
    reached an oral agreement and that they were a
d diem
on the terms on
    which the respondents had an option to purchase unit 116 from the appellants.
    They also dispute that there was legal part performance referral to the
    agreement to take the agreement out of s. 4 of the
Statute of Frauds
,
    R.S.O. 1990, c. S.19.

[2]

Finally they say that the trial judge misapprehended some aspects of the
    evidence on which he based his findings of the agreement and its terms.

[3]

We do not agree that the trial judge made any of these errors.

[4]

First, although the trial judge found an agreement before he found the
    terms agreed on, read contextually, we are  satisfied that he made no legal
    error as he went on to find a consensus had been reached on the material terms.

[5]

In our view, he was entitled to find, based on the record, that the
    parties had agreed on the option to purchase, on the basis that the respondents
    would be responsible for any shortfall in the operating cost of the unit after
    applying all of the rentals together with a credit of the amount normally
    charged for the coaching fees for the appellants two children. We also agree
    with him that the provision of those ski lessons for free can be viewed as part
    performance, specifically referral to the agreement.

[6]

Finally in our view it was open to the trial judge to find the terms of
    the agreement as he did. It was open to him to come to the credibility findings
    he did for which he gave reasons. We are obliged to defer to those findings as
    no palpable or overriding error in the perception of the evidence has been
    demonstrated.

[7]

The appeal is therefore dismissed with costs of $10,000, inclusive of
    disbursements and HST, payable to the respondents.

K. Feldman J.A.

David M. Paciocco J.A.

Fairburn J.A.


