COURT OF APPEAL FOR ONTARIO

DATE: 20030902

DOCKET: C37630

RE: RONALD DAVIES and VIVIAN DAVIES (Appellants) – and – EVELYN BAYDA and PAUL BAYDA (Respondents)

BEFORE: CARTHY, MACPHERSON and SIMMONS JJ.A.

COUNSEL:

Claudio R. Aiello for the appellant

Shane Pearce for the respondent

HEARD: August 25, 2003

On appeal from the judgment of Justice John Wright of the Superior Court of Justice dated December 19, 2001.

E N D O R S E M E N T

[1] The appellants, Ronald and Vivian Davies, appeal from the judgment of J. Wright J. dated December 19, 2001. The trial judge held that the respondent Evelyn Bayda, a real estate agent in Sioux Falls, owed a fiduciary duty to her clients, the Davies, with respect to assisting them to find a new home to purchase once their current home had been sold. However, the trial judge also held that Ms. Bayda’s decision to buy for herself a mobile home in Sioux Falls did not constitute a breach of her fiduciary duty because (a) she did not purchase the mobile home using any confidential information received from Mr. Davies and (b) she understood that the Davies believed that they would not be able to purchase the mobile home. In addition, the trial judge held that even if Ms. Bayda breached her fiduciary duty to the Davies, they did not sustain any damage because their financial circumstances “put an end to any practical attempt to buy”.

[2] The appellants appeal the second (breach of fiduciary duty) and third (no damage) components of the trial judge’s reasons and conclusions.

[3] The question of fiduciary duty is a question of mixed fact and law; accordingly, the trial judge’s conclusion on this issue is entitled to substantial deference: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[4] In our view, the trial judge’s conclusion that Ms. Bayda did not misuse confidential information received from Mr. Davies is strongly supported in the record. The trial judge said: “In fact the evidence is overwhelming that Mrs. Bayda learned of the availability of 4 Pelto Rd. through the Pearen family and then followed up that information with inquires to the owner”. We see no basis for challenging this conclusion.

[5] The trial judge’s conclusion on the other branch of the breach issue, namely that Mr. Davies had essentially conveyed to Ms. Bayda that he believed he was no longer able to buy the mobile home, is also supported in the record.

[6] Finally, on the question of remedy, we note that the remedy sought by the appellants is a declaration of constructive trust. This is an equitable remedy. Even if we agreed with the appellants on the breach issue, we do not think that their conduct entitles them to such a remedy. The appellants not only did not object to Ms. Bayda’s purchase of the mobile home in June 1997; instead, they accepted Ms. Bayda’s offer to rent it to them, lived in it for more that a year, accepted improvements and repairs to the home, and then initiated an action challenging Ms. Bayda’s conduct.

[7] The appeal is dismissed with costs fixed at $5,000 inclusive of disbursements and GST.

“J. J. Carthy J.A.”

“J. C. MacPherson J.A.”

“Janet M. Simmons J.A.”