COURT OF APPEAL FOR ONTARIO
Goudge, Juriansz and MacFarland JJ.A.
BETWEEN
Michelle Alice Tondera and Maryon Tondera
Applicants/Appellants
and
Veselin Vukadinovic, Mihajlo (Mike) Milicevic and Dorothy Ellyn Fox
Respondents
Vesna Vojvodic, for the applicants/appellants
Christine Fotopoulos and S. Jones, for the respondent Dorothy Ellyn Fox
Heard: August 8, 2011
On appeal from the decision of Justice Katherine B. Corrick of the Superior Court of Justice dated December 13, 2010.
ENDORSEMENT
[1]
Introduction
This is an appeal from the decision of Corrick J. striking out the Amended Notice of Application as disclosing no reasonable cause of action.
2None of the parties raised any objection to the fact that this matter proceeded at first instance as a Rule 21 motion and the applicability of Rule 21 to an application was not put in issue before us.
[3]
Background
The facts giving rise to this litigation are succinctly set out by the motions judge in paragraph 8 and 9 of her reasons:
8The basic facts of this case are as follows. In April 2003, the Tonderas each signed powers of attorney written in the Serbian language revoking their interest in their grandfather’s property in the former Republic of Yugoslavia in favour of their grandmother, and providing their uncle, Veselin Vukadinovic (“Veselin”), with authority to deal with the property. They signed the documents in the presence of the respondent, Mihajlo (Mike) Milicevic. The face of the documents state that they were signed in the presence of Mihajlo Mike Milicevic. Below Mr. Milicevic’s signature appear the pre-printed words (in translation) “Certified by:”. Below those words is Ms. Fox’s signature and below that are the pre-printed words (in translation) “Notary Public, A Commissioner, etc. Finally, below that are the words “Dorothy E. Fox, Barrister & Solicitor.” Ms. Fox’s embossed notarial seal is also on the document.
9The Tonderas do not speak or read the Serbian language. They believed that they signed powers of attorney to authorize Veselin to manage the property. They did not know they were relinquishing their interest in the property. In 2008, they discovered that they no longer had an interest in the property and that it had been transferred to Veselin, who had granted an interest in it to a company in exchange for an interest in certain other properties.
4On the motion before her she concluded in paragraphs 7 and 16:
In my view, the amended application discloses no reasonable cause of action against Ms. Fox. The amended application fails to establish a relationship of sufficient proximity between the Tonderas and Ms. Fox that would give rise to a duty of care to the Tonderas on the part of Ms. Fox.
I do not accept the submissions of Ms. Vojvodic regarding the duties of a notary public in Ontario. The cases Ms. Vojvodic refers to in support of her submission deal with notaries public subject to duties prescribed by statute. Notaries public in Ontario are bound by the Notaries Act, supra, which does not prescribe the duties that Ms. Vojvodic submits should be attributed to Ms. Fox.
5In a Rule 21 motion the facts pleaded are taken as true and provable for the purpose of the motion.
6The relevant subparagraphs of Paragraph 2 of the Amended Notice of Application read:
(q) The 2003 Documents would not have been effective to convey a legal interest in the Montenegro property unless they were signed in front of a barrister and solicitor who was an accredited notary for documents in the country where the document is being signed and the signature of such barrister and solicitor deposited with the consulate of the Federal Republic of Yugoslavia.
(r) Prior to notarizing a document which would have legal effect in the former Federal Republic of Yugoslavia and in Canada, the notary is required to ensure that the signatories understand the nature and effect of the document and that they are signing it of their own free will.
(t) Fox has her signature deposited with the Consulate of the Federal Republic of Yugoslavia and is one of the accredited notaries for documents to be used in the Federal Republic of Yugoslavia.
(u) Fox was not in fact present when Michelle and Maryon signed the 2003 Documents. By having applied her signature and notarial seal to these documents, Fox gave the 2003 Documents the false appearance of being duly executed legal documents, capable of being further legalized by the Consulate of the Federal Republic of Yugoslavia.
(v) Fox notarized the signatures without having seen the 2003 Documents being signed in her presence and without having satisfied herself that each person signing her/his document was aware of its nature and contents and each person was signing it voluntarily and was not subjected to any coercion, pressure or intimidation.
[7]
Analysis
While not a model pleading the gist of the appellants’ argument is apparent. They submit that Fox knew that the presence of her signature on the document would cause the authorities in the Federal Republic of Yugoslavia to accept that the document was signed in her presence and therefore give it legal effect. In these unique circumstances, they say Fox owed them a duty of care both to have them sign in her presence and to insure that they understood the document. Both arguments rest on the common law of negligence and not just the Notaries Act. The appellants allege Fox breached both duties and caused them harm.
8The factual dispute about whose signature(s) Fox was appearing to certify is a matter requiring resolution. On its face, the document is ambiguous. Evidence will be required to resolve this. Indeed a trial may be required. The result may well be that by notarizing the document, Fox was representing that the appellants signed in her presence and understood the document.
9We cannot say, in these particular circumstances that there can be no duty of care owed by Fox to the appellants when she affixed her signature as a notary to the document in their absence, knowing the legal effect her signature would carry in the Federal Republic of Yugoslavia and without enduring their understanding. In our view, it is not plain and obvious that the appellants cannot succeed.
[10]
Disposition
The appeal is allowed and the order of Corrick J. is set aside. The appellant should have their costs here and below.
[11]
Costs
Corrick J. fixed costs below in the all inclusive sum of $35,402.40 and noted in her endorsement dealing with costs that the appellants in this court had sought costs before her in the sum of $49,600. In our view, the sum of $35,000 inclusive of disbursements and HST is a reasonable sum for the costs below and we would award that sum to the appellants for their costs before Corrick J. In addition, the appellants are entitled to their costs of the appeal fixed in the sum of $15,000 also inclusive of disbursements and HST.
“S.T. Goudge J.A.”
“R.G. Juriansz J.A.”
“J. MacFarland J.A.”