Court of Appeal for Ontario

Date: 2002-03-08 Docket: C36682

Re: York Mobile Homes Limited (formerly Suncrest Mobile Homes Limited) and Robert Kernerman (Appellants) -and- Marlin Centre Mobile Homes Inc. et al. (Respondents)

Before: Borins, Feldman and MacPherson JJ.A.

Counsel: Gregory Sidlofsky, for the appellant Robert Reynolds, for the respondent

Heard: March 4, 2002 Released Orally: March 4, 2002

On appeal from the judgment of Justice Bruce Hawkins dated July 9, 2001.

Endorsement

FELDMAN J.A.:

[1] I would dismiss the appeal on the basis of the reasons of Hawkins J. Although the parole evidence rule would not preclude evidence of fraud in the creation of a document, in this case the explanation given by the appellant for signing the Release in blank was that the two real estate transactions between the parties were linked or inter-dependent and the Release was to be used only if the first transaction did not close. However, the documentation which evidenced those transactions includes no linkage whatever. The appellant read, understood and agreed with the content of that documentation, which was also reviewed and approved by his lawyers, Faskin, Campbell, Godfrey. Consequently, the parole evidence rule would preclude the introduction of evidence of the alleged linkage. As a result, I agree with Hawkins J.’s analysis that the evidence would not be allowed at trial and therefore can raise no genuine issue for trial.

[2] As the complaint against the real estate agent was also based on the alleged linkage of the two transactions, I agree with Hawkins J.’s determination that it should also be dismissed on summary judgement.

[3] I would therefore dismiss the appeal with costs, fixed at $3,000.

Signed: “K. Feldman J.A.”

“I agree J.C. MacPherson J.A.”

BORINS J.A. (Dissenting):

[4] I am unable to agree with the conclusion reached by Justice Feldman and Justice MacPherson. In my view, there is a genuine issue for trial. In respect to the release, there is conflicting evidence in respect to the origin, purpose and execution of this document. Moreover, the motion judge erred in holding that the parole evidence rule precluded the plaintiff from leading evidence in respect to its provenance. I am satisfied that the issue raised by the plaintiffs is genuine and not spurious as in the case of Rogers Cable TV Ltd. v. 373041 Ontario Ltd. (1994), 22 O.R. (3d) 25 (Gen. Div.), which is distinguishable on its facts.

[5] In addition, although the motion judge also dismissed the plaintiffs’ claim against the real estate agent, he gave no reasons for doing so. In my view, there is a genuine issue for trial in respect to the plaintiffs’ claim against him based on a breach of fiduciary duty.

[6] Therefore, I would allow the appeal with costs, set aside the decision of the motion judge and order that the motion for summary judgment be dismissed with costs.

Signed: “S. Borins J.A.”