DATE: 2006-10-24

DOCKET: C45380

COURT OF APPEAL FOR ONTARIO

RE:

STEVEN GOLANSKY and KAREN LEE MEROLA (Plaintiffs (Respondents)) – and – ANTHONY VELLUCCI AND DOMINIC VELLUCCI (Defendants (Appellants))

BEFORE:

GOUDGE, SIMMONS AND LANG JJ.A.

COUNSEL:

John R. Hart

for the appellants

Donald Posluns

for the respondents

HEARD & ENDORSED:

October 18, 2006

On appeal from the judgment of Justice John R. McIsaac of the Superior Court of Justice dated April 6, 2006.

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

[1] In our view it appears that the main debate at first instance was whether the appellants have a substantial interest in the property.

[2] On that score had the application judge also considered the appellant’s equity in the property (which appears to be $130,000) as a valid and important measure of the appellants’ interest in it.

[3] However even when that is done, we are of the view that the appellants cannot show the requisite substantial interest. Neither their actual investment nor their equity (given its market value at the time of sale) warrant that conclusion in the circumstances.

[4] When this is put together with the absence of any persuasive evidence that the appellants had alternative sources of funding available, we conclude that the application judge was correct to conclude no special circumstances.

[5] The appeal must be dismissed. Costs to the respondent fixed at $6,000 inclusive of disbursements and G.S.T.