DATE: 20021218

DOCKET: C38448

COURT OF APPEAL FOR ONTARIO

RE: JOSEPHINE SLIWINSKI (Plaintiff) (Respondent) –and– RICHARD MARKS and ANN FLINT (Defendants) (Appellant)

BEFORE: O’CONNOR A.C.J.O., WEILER and ROSENBERG JJ.A.

COUNSEL: Richard Marks, the appellant in person,

Diane Magas for the respondent,

HEARD: December 10, 2002

RELEASED ORALLY: December 10, 2002

On appeal from the judgment of Justice Richard G. Byers of the Superior Court of Justice dated June 6, 2002.

E N D O R S E M E N T

[1] The appellant Marks is a solicitor and was retained by the respondent Sliwinski as counsel in connection with several medical malpractice lawsuits. In 1999, Sliwinski discharged Marks after he advised her he could not continue unless her accounts were brought up to date and a retainer was provided. The accounts were assessed at $31,683.03. Sliwinski appealed and the appeal was dismissed. A further appeal was undertaken to the Divisional Court. Before the Divisional Court heard the matter, however, the parties reached a settlement and Marks resumed his position as counsel on one of the medical malpractice lawsuits. As part of the settlement, Sliwinski was to pay Marks $9,000 and to provide security by way of a $25,000 mortgage on her Brant Street property against future fees and disbursements. Sliwinski granted the $25,000 mortgage but did not pay the $9,000. On the eve of trial of the malpractice action, Marks required Sliwinski to provide an additional $15,000 mortgage on her Gardenvale property.

[2] In May, 2001, Sliwinski’s medical malpractice action was dismissed with costs. After the May, 2001, trial Sliwinski did not make any payments to Marks, either on the $9,000 plus post-judgment interest or the $31,686.03 she owed to Marks in fees. Marks therefore commenced Power of Sale proceedings on the existing mortgages but claimed $44,000 under each power of sale. Sliwinski sued Marks claiming that he used undue influence to procure the $15,000 mortgage. She made no claim respecting the $25,000 mortgage in her statement of claim. She also brought an ex-parte application to enjoin the power of sale proceedings from continuing. The ex-parte injunction was granted on April 29, 2002.

[3] On June 6, 2002, following a number of consent adjournments, the parties were before Byers J. on a motion to continue the injunction. Byers J. ordered Sliwinski to pay Marks $15,000 no later than July 5, 2002, and to pay $25,000 into Court “to the credit of the action” by that date. He further ordered that, upon payment of the money, Marks was to discharge the $25,000 mortgage on the Brant Street property. Finally, upon payment of the money, the order cancelled the power of sale proceedings respecting both mortgages and extended the injunction until final disposition of the action brought by Sliwinski. Sliwinski made the payments and Marks appealed.

[4] The real issues in this appeal are whether the court had jurisdiction to order the discharge of the $25,000 mortgage and the characterization of the payment of $25,000 into court as being “to the credit of the action”.

[5] In our opinion, in the circumstances of this case, the motions judge ought not to have ordered Marks to discharge the $25,000 mortgage unless not only the principal but the interest and costs were paid. Accordingly, we would delete paragraph 4 of the order which requires Marks to discharge the $25,000 mortgage on the Brant Street property.

[6] The payment of the $25,000 into court “to the credit of this action” was obviously intended to be for the benefit of Marks and to stand as security for monies that are or may become owing by Sliwinski to Marks at the conclusion of the action. We would amend paragraph 3 to read, “The sum of $25,000 in court shall stand as security for monies that are or may become owing by Sliwinski to Marks at the conclusion of this action or unless otherwise ordered by the Superior Court”.

[7] The appeal is otherwise dismissed. Costs of the appeal are to the appellant Marks fixed in the amount of $2,500 payable forthwith.

Signed: “D. O’Connor A.C.J.O.”

“Karen M. Weiler J.A.”

“M. Rosenberg J.A.”