DATE: 20060117
DOCKET: C43618
COURT OF APPEAL FOR ONTARIO
RE:
JOSEPH MICHAELS (Applicant/Appellant) v. DANUTA NIEWEGLOWSKI, ESTATE TRUSTEE OF THE ESTATE OF HELENA BOGUN (also known as HELENA MICHALAK), DANUTA NIEWEGLOWSKI and MARK NIEWEGLOWSKI (Respondents)
BEFORE:
DOHERTY, SHARPE and ARMSTRONG JJ.A.
COUNSEL:
James McReynolds for the appellant
Charles Ruttan for the respondent
HEARD & ENDORSED:
January 16, 2006
On appeal from the order of Justice Graham of the Superior Court of Justice dated May 24, 2005.
A P P E A L B O O K E N D O R S E M E N T
[1] While there were procedural shortcomings in the proceedings before Howden J., we are satisfied that any potential prejudice to the appellant was avoided by what amounted to a de novo hearing on the merits before Graham J.
[2] Graham J. held that the purported Minutes of Settlement lacked “material and fundamental terms”. We agree. The terms of the Minutes of Settlement did not address the extent to which the appellant could encumber the equity in the property by way of a second mortgage and did not protect the right of first refusal granted to the respondent in the event of various occurrences such as foreclosure, or a gift of the property by the appellant.
[3] We also agree with the submission that even if there was an agreement to settle the claim, the appellant repudiated that agreement by his conduct between October 2004 and May 2005. That conduct includes his failure to respond to any inquiries from his own lawyer and the respondents’ lawyer, his failure to execute the necessary documents in a timely fashion, and his failure to maintain the property between October 2004 and May 2005 while he was in possession.
[4] The appeal is dismissed. Costs on a full indemnity basis to the respondents payable out of the estate in the amount of $10,000, inclusive of disbursements and GST.