DATE: 20030411
DOCKET: C31460
COURT OF APPEAL FOR ONTARIO
LASKIN, CRONK and ARMSTRONG JJ.A.
B E T W E E N :
MARIA KARTERI, LOUIS TSALTAS and GEORGE TSALTAS
Stuart N. Chelin,
for the appellants
Plaintiffs (Respondents)
- and -
ALAN SUGARMAN, MINICORP REALTY INC., 630662 ONTARIO LIMITED, SIWON BAK and YOUNGSOOK BAK
R. Sam Ramlall and Nicholas Derzko, for the respondents
Defendants (Appellants)
AND B E T W E E N :
ALAN SUGARMAN, MINICORP REALTY INC. and 630662 ONTARIO LIMITED
Plaintiffs by Counterclaim
- and -
MARIA KARTERI, LOUIS TSALTAS and GEORGE TSALTAS
Defendants by Counterclaim
Heard: April 1, 2003
Released Orally: April 1, 2003
On appeal from the judgment of Justice Wailan Low of the Superior Court of Justice dated January 4, 1999.
BY THE COURT:
[1] The appellants appeal the trial judge’s finding of conversion and the award of damages of $50,000, of which $10,000 is to be paid jointly and severally by Minicorp and Sugarman. We called on the respondents on one point: whether the trial judge erred in holding Sugarman personally liable. In our view, she did err.
[2] The trial judge’s finding of personal liability was based on her conclusion that Sugarman was a party to the conveyance of the appliances to the Baks. The bill of sale, however, shows that Minicorp alone conveyed these chattels. Although Mr. Sugarman acted in several capacities on these transactions, we cannot find any evidence that he personally was a party to the sale to the Baks.
[3] On the other arguments advanced by Mr. Chelin, we think that the trial judge’s finding of conversion and her damages award are reasonably supported by the evidence. We note, in particular, the following pieces of evidence on which the trial judge was justified in relying:
• The unexplained discrepancies in the storage invoices;
• The improper inclusion in those invoices of costs associated with the mortgagee being in possession;
• The failure of the appellants to provide a detailed accounting of the chattels when requested to do so by the respondents;
• The agreement of purchase and sale with the Baks; and
• The failure of the appellants either to offer any explanation about what happened to the chattels or to rebut the amount of damages claimed by the respondents.
[4] In the face of this evidence and the findings of the trial judge, we do not think it was open to the appellants to rely on the respondents’ failure to retake possession of their goods in February 1990 as an answer to the award of damages.
[5] Thus, on the appeal, the trial judge’s finding of liability and damages award against Sugarman is set aside but the judgment against Minicorp remains.
[6] On the cross-appeal, the respondents make three main submissions:
The trial judge erred in finding that only $250,000 of the $300,000 Sugarman mortgage was to be advanced until construction was completed and in finding that the mortgage funds were not intended to pay off the two Minicorp mortgages;
The trial judge erred by not giving effect to s. 42 of the Mortgages Act; and
The trial judge erred in holding that a new notice of sale was not required after the sale of 297 Donlands Avenue to the numbered company.
[7] On the first submission, the evidence was conflicting on whether there was to be a $50,000 holdback on the Sugarman mortgage. The trial judge considered this conflicting evidence and concluded at paragraph 29 of her reasons:
The preponderance of the evidence, however, points to a final agreement that of the $300,000 mortgage loan, there was to be a holdback of $50,000 and that the Minicorp mortgages were to remain on title.
[8] In our view, her conclusion is reasonably supported by the evidence, especially the direction signed by the respondents and their solicitors on May 15, 1989. That direction showed a pay‑out of only approximately $250,000 and, in respect of Minicorp, a direction to pay up only the mortgages arrears. We, therefore, decline to give effect to this submission.
[9] On the second submission, the trial judge considered s. 42 of the Mortgages Act. Even accepting a breach of this provision, at best the respondents could obtain damages. Yet, as the trial judge found, for the relevant time period ‑ November 21 to December 28, 1989 ‑ the respondents proved no damages and offered no evidence that they attempted to or could redeem the property. This submission, too, must fail.
[10] Finally, on the facts of this case, we are satisfied that a new notice of sale for 299 Donlands Avenue was not required. The Act does not require a new notice. And, as the trial judge pointed out, the one case where it was required, Botiuk v. Collison (1979), 26 O.R. (2d) 580 (C.A.), is distinguishable on its facts. Thus, we cannot give effect to this submission.
[11] For these brief reasons, the appeal is allowed by varying paragraphs 3 and 8 of the trial judgment so that Alan Sugarman is not liable, either for damages or for costs. The appeal is otherwise dismissed. The cross‑appeal is also dismissed.
[12] In the light of all the circumstances, the appellants are entitled to costs on a partial indemnity basis, fixed at $3,500, inclusive of disbursements and Goods and Services Tax.
RELEASED: April 11, 2003
“JIL”
“John Laskin J.A.”
“E. A. Cronk J.A.”
“Robert P. Armstrong J.A.”