DATE: 20040726

DOCKET: C41142

COURT OF APPEAL FOR ONTARIO

RE: BERTINA ALFANO, TRUSTEE OF THE CARMEN ALFANO FAMILY TRUST, BERTINA ALFANO, ITALO ALFANO, TRUSTEE OF THE ITALO ALFANO FAMILY TRUST, ITALO ALFANO, ULTI ALFANO, TRUSTEE OF THE ULTI ALFANO FAMILY TRUST and ULTI ALFANO (Plaintiffs) – and – CHRISTIAN PIERSANTI, PIERSANTI AND CO. BARRISTERS AND SOLICITORS, GOLD FINANCIAL CORP., OSLER PAVING AND CONSTRUCTION LTD., 758262 ONTARIO LIMITED now known as DILIGENT FINANCIAL CORPORATION, 1281111 ONTARIO LIMITED, 1269906 ONTARIO LIMITED, 1281632 ONTARIO LIMITED, 1212700 ONTARIO LIMITED, TERRY PIERSANTI also known as TERRY SCATCHERD, 1281038 ONTARIO LIMITED and 3964400 CANADA INC. (Defendants)

AND RE: CHRISTIAN PIERSANTI, DILIGENT FINANCIAL CORPORATION and 1212700 ONTARIO LIMITED (Plaintiffs by counterclaim/Appellants) – and – BERTINA ALFANO, ITALO ALFANO, ULTIMINO ALFANO, JOE ALFANO, 815748 ONTARIO LIMITED, ONTARIO POWER CONTRACTING LIMITED, PUSLINCH INVESTMENTS INC., 1026864 ONTARIO LIMITED and LEVINE SHERKIN BOUSSIDAN (Defendants by counterclaim/Respondents)

BEFORE: CATZMAN, GILLESE and LANG JJ.A.

COUNSEL: V. Ross Morrison for the appellants

Alfred J. Esterbauer for the respondents

HEARD: July 21, 2004

RELEASED ORALLY: July 21, 2004

On appeal from the judgment of order of Justice Harriet E. Sachs of the Superior Court of Justice dated December 12, 2003.

E N D O R S E M E N T

[1] This is an appeal from Sachs J.’s determination that a pleading against a law firm failed to disclose the alleged tort of intentional interference with contractual relations. The pleading alleged that the law firm wrote to a bank, on the instructions of its client, “wrongfully” demanding that the bank take certain action and, further, that the law firm made that demand knowing it had no right to do so.

[2] Sachs J. determined that the pleading lacked two necessary elements against the law firm: an alleged intention to injure the defendants; and an alleged use of unlawful means. On the first element, we agree with Sachs J. that this pleading fails to allege that the law firm acted with any intention to injure the appellants. On the second element, and in the circumstances of this case, we accept that Sachs J. correctly referred to the reasoning in Lubarevich v. Nurgitz, [1996] O.J. No. 1457 (Gen. Div.) and, in particular, para. 22 of that decision.

[3] The appeal is dismissed.

[4] Costs are awarded in the amount of $4,500, inclusive of disbursements and G.S.T.

Signed: “M.A. Catzman J.A.”

“E.E. Gillese J.A.”

“Susan E. Lang J.A.”