Court of Appeal for Ontario

CITATION: Nicholls v. Niman Zemans Gelgoot LLP, 2010 ONCA 350

DATE: 20100513

DOCKET: C50978

Winkler C.J.O., Armstrong and Epstein JJ.A.

BETWEEN

Andrew Midgley Nicholls

Plaintiff (Appellant)

and

Rodica David and Niman Zemans Gelgoot LLP

Defendants (Respondent)

Counsel:

Donald J. Lange, for the appellant

William E. Pepall and Shannon M. Puddister, for the respondent

Heard and released orally: May 7, 2010

On appeal from the order of Justice R. E. Mesbur of the Superior Court of Justice dated August 14, 2009.

ENDORSEMENT

[1] This is an appeal from the order of Justice Mesbur striking the appellant’s claim for damages from the firm of Niman Zemans Gelgoot (“NZG”). NZG represented the appellant’s wife in matrimonial proceedings. The claim was struck on the basis that it disclosed no reasonable cause of action and was an abuse of process.

[2] Pursuant to the orders of Justice Corbett and Justice Coats, the matrimonial home was sold and 50 per cent of the net proceeds were paid to the wife. The only condition on this payment was that at least $100,000 of the proceeds be used to purchase residential premises in Oakville.

[3] The essence of the appellant’s claim was that the wife’s share of the house proceeds constituted trust funds that she used partly to pay her lawyers, NZG. NZG was aware that the money came from trust funds, and was therefore liable for “knowing receipt of trust funds”.

[4] We agree with the motion judge’s conclusion that the property in question was not impressed with a trust. Accordingly, the appeal is dismissed.

[5] The respondent is entitled to its costs, fixed in the amount of $7,500 including disbursements and GST.

“W. Winkler C.J.O.”

“Armstrong J.A.”

“Gloria Epstein J.A.”