DATE: 20020124 DOCKET: C35656
COURT OF APPEAL FOR ONTARIO
RE:
PIETRO CAPANNELLI and NATALINA CAPANNELLI (Applicants/Appellants in Appeal) – and – WALTER MUROFF, HENRY SAMUEL MUROFF, WALTER MUROFF, TRUSTEE, THE EQUITABLE TRUST COMPANY, DOONE TOWER LIMITED, DIETRICH INVESTMENTS LIMITED, ESSEXVILLE INVESTMENTS LIMITED and SAGINAW INVESTMENTS LIMITED (Respondents/Respondents in Appeal)
BEFORE:
MORDEN, CATZMAN and ROSENBERG JJ.A.
COUNSEL:
Myron W. Shulgan Q.C. for the appellants
Arthur Barat Q.C. and Avril A. Farlam for the respondents
HEARD:
January 17, 2002
On appeal from the judgment of Justice Joseph G. Quinn dated December 22, 2000.
E N D O R S E M E N T
[1] We dismiss the appeal from paragraph 1 in the judgment which dismisses the claim for partition and sale. We are of the view that the provisions in paragraphs 11 and 12 in the joint venture agreement are a proper basis for denying this relief.
[2] With respect to the relief granted in the other paragraphs in the judgment, there are material facts in dispute relating to when and what the respondents disclosed relating to the mortgage and when and of what the appellants had knowledge with respect to the mortgage, and the legal consequences of such disclosure and knowledge. We direct that these issues proceed to trial as an action and that the application relating to these claims be adjourned to be decided by the trial judge.
[3] The respondents shall be at liberty to plead by way of defence or counterclaim, or both, any other issues which, as they may be advised, entitle them to declaratory or other relief against the appellants.
[4] The appeal is allowed, in part, and paragraphs 2 to 6, inclusive are set aside. The costs of the application before Quinn J. are reserved to the trial judge. There will be no costs of this appeal.
“J.M. Morden J.A.”
“M.A. Catzman J.A.”
“M. Rosenberg J.A.”