COURT OF APPEAL FOR ONTARIO

DATE: 20051205

DOCKET: C43519

RE:

ANDREAS TZEMBELICOS (Respondent (Plaintiff)) – and NIKITAS TZEMBELICOS, ELEANOR TZEMBELICOS and ALAN SHERMAN (Appellants (Defendants)

NIKITAS TZEMBELICOS and ELEANOR TZEMBELICOS (Appellants (Plaintiffs by Counterclaim)) – and – ANDREAS TZEMBELICOS and ANN TZEMBELICOS (Respondents (Defendants by Counterclaim))

BEFORE:

FELDMAN, BLAIR and LAFORME JJ.A.

COUNSEL:

Howard J. Wolch

for the appellants

Thomas S. Kent

for the respondents

HEARD & ENDORSED:

December 2, 2005

On appeal from the order of Justice James M. Spence of the Superior Court of Justice dated April 6, 2005.

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

[1] The appellants seek to overturn the judgment of Spence J. wherein he refused to rectify the Minutes of Settlement. The appellants say it was the intention of the parties to include their respective house lots into the equalization in accordance with the concept that the parties would each get 50% of the value of all partnership assets. However the Minutes specifically address the two lots in paragraphs 5 and 6 of the Minutes by giving each party his own house and lot and valuing for the partnership only the difference between the respondent’s lot and the lot less one acre. The motion judge was not satisfied on the evidence that there was the alleged mistake at the time of the signing of the Minutes of Settlement. We see no error in that conclusion. No other issues were urged before us in argument. In the result, the appeal is dismissed with costs of $5,629.70, inclusive of disbursements and G.S.T.