DATE: 20040518

DOCKET: C40429

COURT OF APPEAL FOR ONTARIO

RE:

BAKER SCHNEIDER RUGGIERO (Plaintiff/Respondent) – and – HOWARD S. SWARTZ (Defendant/Appellant) – and Between – HOWARD S. SWARTZ (Plaintiff by Counterclaim/Appellant) – and – BAKER SCHNIEDER FUGGIERO, LEWIS BAKER, BERNARD SCHNEIDER and GEORGE RUGGIERO (Defendants by Counterclaim/ Respondents)

BEFORE:

WEILER, ROSENBERG, BLAIR JJ.A.

COUNSEL:

Thomas J. Lockwood Q.C.

for the plaintiff by counterclaim (appellant)

Kevin Fisher

for the respondent

HEARD:

May 17, 2004

On appeal from the judgment of Justice Katherine E. Swinton of the Superior Court of Justice dated June 24, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] Mr. Swartz appeals from the decision of Swinton J. granting partial summary judgment and dismissing his claims in the amended statement of defence and counterclaim for (a) a complete accounting of partnership profits from 1990 to 2000, (b) an equitable distribution of partnership payments for the same years and (c) his claim for general damages for mental distress, loss of law career, intentional infliction of mental and emotional suffering, breach of contract, breach of fiduciary duty and undue influence as against his former partners, Schneider and Ruggierio. The latter claim was permitted to proceed against the former partner, Lewis Baker, whose alleged overbearing and abusive conduct towards Mr. Swartz is at the core of the lawsuit.

[2] With the exception of the claim for an accounting for the period January 2000 to July 2001, when Mr. Swartz left the firm, we find no error on the part of the motions judge and would dismiss the appeal for the reasons she gave.

[3] On his evidence, however, Mr. Swartz has received no accounting or distribution for the period of time during 2000 when he remained a partner – that period of time is itself an issue to be determined by the trial judge – and for the period of time prior to his departure during which he may be entitled to payment according to the agreement of December 22, 2000 (A.B. Vol. 3, Tab 18). In our view, he is entitled to pursue that aspect of his claim for an accounting. The appeal is therefore allowed to that extent, but is otherwise dismissed.

[4] There is a cross-appeal against the decision of the motions judge to permit the claim to proceed against Mr. Baker. The record justifies a trial on that claim and we see no merit in the cross- appeal. It is therefore dismissed.

[5] The respondents are entitled to their costs of the appeal, fixed at $4000, all inclusive.