DATE: 20050207

DOCKET: C39903

COURT OF APPEAL FOR ONTARIO

RE:

SITTAMPALAM JEYAPRAGASAN, 1007048 ONTARIO INC. AND 929 DENTAL SERVICES INC. (Applicant/Appellant) – and – MANJULA JEYAPRAGASAN (Respondent/Respondent in Appeal)

BEFORE:

FELDMAN, SIMMONS and GILLESE JJ.A.

COUNSEL:

Sittampalam Jeyapragasan

In person

Manjula Jeyapragasan

In person

HEARD & RELEASED ORALLY:

February 2, 2005

On appeal from the order of Justice Andromache Karakatsanis of the Superior Court of Justice dated April 11, 2003.

E N D O R S E M E N T

[1] The appellant husband asked for an adjournment of this appeal in order to retain a lawyer. The appellant has had extensions from this court and many opportunities to retain counsel and has not done so. He also approached pro bono law but did not qualify. The request was denied.

[2] The appellant appeals the order dated April 11, 2003 of Karakatsanis J., which approved the agreement of purchase and sale for the sale of the 403 Bloor Street East property for $810,000 and granted a vesting order in the purchaser.

[3] Since the order of Karakatsanis J., the transaction has closed and the property vested in the purchaser in May of 2003. Karakatsanis J. acted pursuant to the orders regarding the sale made by Mesbur J. on April 4, 2002 and O’Connell J. on November 14, 2002, both of which orders were made on consent.

[4] The motion judge heard vive voce evidence. The appellant challenges the factual findings made by the motion judge on the evidence she heard. Of course it is for the motion judge to determine questions of fact and credibility. She made no palpable and overriding error in that regard.

[5] The appellant also raises new allegations of fraudulent conduct by the real estate agents on the transaction, which were not raised before Karakatsanis J. These allegations were raised without the proper evidentiary foundation. In any event, any such matter of fraud is not foreclosed to the appellant in another forum.

[6] Because the property has vested in the purchaser, the appeal of the order approving the sale is moot: see Regal Constellation Hotel Ltd. (Re), 2004 206 (ON CA), [2004] O.J. No. 2744 (C.A.).

[7] The appeal is dismissed.

[8] As the respondent does not ask for costs, there will be no order as to costs.

Signed: “K. Feldman J.A.”

“Janet Simmons J.A.”

“E.E. Gillese J.A.”