DATE: 20020315
DOCKET: C36808

COURT OF APPEAL FOR ONTARIO

RE:

HENRY J. GERTNER (Appellant) -and- NORMAN J. CAMERMAN (Respondent)

BEFORE:

ABELLA, CHARRON and CRONK JJ.A.

COUNSEL:

Jonathan C. Lisus
for the appellant

Allen Gerstl
for the respondent

HEARD:

March 12, 2002

On appeal from the Judgment of Justice Blenus Wright dated May 3, 2001

E N D O R S E M E N T

[1] The appellant solicitor appeals from an order requiring him to fulfill his solicitor’s undertaking, given on January 30, 1997, to repay to the respondent a loan in the amount of $50,000 “on or before February 11, 1997, without fail”. Pursuant to the terms of the undertaking, the monies were to be taken from mortgage financing which was being completed by the appellant on behalf of the debtor, Mr. Messina. Contrary to the terms of the undertaking, the mortgage funds were paid directly to Mr. Messina.

[2] The appellant readily conceded at the hearing before the applications judge that he did not fulfill his undertaking. He took the position, however, that the respondent was wrongfully claiming that he had not been paid the $50,000 directly by the debtor, Mr. Messina, and that he was now seeking, years after the fact and following Mr. Messina’s assignment in bankruptcy, to obtain double recovery of that amount. In response to the respondent’s application and in support of his contention that the debt had been paid, the appellant relied on his own affidavit. Contrary to the provisions of Rule 39.01(5), his affidavit was based entirely on information and belief, even with respect to contentious facts. The appellant, however, sought an adjournment of the application to allow him to summons Mr. Messina to give evidence.

[3] The applications judge refused to grant an adjournment. He held that the appellant had had ample time since his breach of undertaking in February 1997 to obtain evidence that the debt had otherwise been paid. He held further that there was “no direct evidence” that such payment had been made. He therefore granted the respondent’s application and ordered the appellant to pay the sum of $50,000 plus prejudgment interest in the amount of $12,757.50.

[4] The appellant contends that the applications judge erred in refusing him an adjournment and in deciding the matter summarily, in the face of conflicting evidence on whether the debt had been paid. He sought leave from this court to file fresh evidence in support of this latter contention. He further argued that the material gave rise to an issue whether the undertaking in question was a solicitor’s undertaking or a personal one only.

[5] We see no reason to interfere with the applications judge’s decision. We see no merit to the submission that this undertaking was anything other than a solicitor’s undertaking. Further, the evidence was uncontroverted that the appellant breached his undertaking. His contention that the debt had been otherwise repaid was not supported by any admissible evidence before the applications judge. The proposed fresh evidence puts him in no higher position. The evidence, even if admitted, remains confusing, contradictory in several respects, and largely inadmissible. Moreover, the appellant has not obtained any evidence from Mr. Messina nor has he offered any explanation for his failure to do so.

[6] It is of paramount importance that solicitors be strictly accountable for their undertakings. The appeal is dismissed with costs, fixed at $5000.

Released: March 15, 2002

"Abella J.A."

"Charron J.A."

"Cronk J.A."