Court File and Parties

CITATION: Premich v. Dhaliwal, 2007 ONCA 740

DATE: 20071031

DOCKET: C46647

COURT OF APPEAL FOR ONTARIO

WINKLER C.J.O., DOHERTY and SHARPE JJ.A.

BETWEEN:

RITA PREMICH and PETER PREMICH

Plaintiffs (Respondent)

and

YADVINDER DHALIWAL, PARDEEP DHALIWAL and JAVRASUKH INC.

Defendants (Appellants)

Ryan M. Naimark for the appellants

R. Klotz for the respondent

Heard and released orally: October 25, 2007

On appeal from the order of Justice J. Spence of the Superior Court of Justice dated January 12, 2007.

ENDORSEMENT

[1] We do not accept the appellants’ submission that the motion judge erred in granting summary judgment. The plaintiff’s evidence that Dr. Dhaliwal assured them that they could not lose their money was uncontradicted. As their physician, Dr. Dhaliwal stood in a fiduciary relationship to the plaintiffs and we see no error in the motion judge’s conclusion that on the record, the only possible conclusion was that the requirements of s. 178.1(d) and (e) of the Bankruptcy Act were met.

[2] We note that although the admission made by Dr. Dhaliwal before the College of Physicians and Surgeons and the findings of the Discipline Committee were before the motion judge, he did not refer to that material in his reasons. We are satisfied that his finding of no triable issue is sustainable without reliance on that material.

[3] As for Pardeep Dhaliwal, we do not accept the submission that there is any basis to suggest that her conduct was not part and parcel of the fraud committed by Dr. Dhaliwal.

[4] As for the motion judge’s ruling on costs, we agree with the appellants that the costs of enforcing the mortgage and in relation to the College proceedings and the bankruptcy are not costs of this litigation and accordingly we reduce the costs awarded by the motion judge by $9,035.

[5] Accordingly, the judgment is to be varied in accordance with paragraph 4 of these reasons, but otherwise the appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $12,000 all inclusive.

“Winkler C.J.O.”

“D. Doherty J.A.”

“Robert J. Sharpe J.A.”