Court of Appeal for Ontario

Citation: Nucorp Realty Ltd. v. Bakas Investments Inc., 2007 ONCA 831

Date: 20071130

Docket: C47157

Before: BLAIR, JURIANSZ and LAFORME

Between:

Nucorp Realty Ltd.

Plaintiff/appellant

and

Bakas Investments Inc., Hectares Properties Inc., Kimberley Duffin and William Duffin

Defendants/Respondents

Counsel:

Bryan Skolnik for the appellant

Michael Woods for the respondents Kimberley and William Duffin

Heard: November 27, 2007

On appeal from the judgment of Justice Paul Perell of the Superior Court of Justice dated April 20, 2007.

APPEAL BOOK ENDORSEMENT

[1] Nucorp Realty sues for commissions allegedly owing on the sale of a nursing home in the Niagara Region. The claim is proceeding against the corporate defendants. Perell J. granted summary judgment dismissing the claim against Kimberley and William Duffin personally. Mr. and Mrs. Duffin are the sole shareholders officers and directors of the corporate defendants and Mrs. Duffin signed the pertinent agreements on behalf of Bakas Investments Inc. and Hectares Properties Inc.

[2] Nucorp appeals the dismissal of the action against the Duffins personally, arguing that the motion judge erred in failing to find a genuine issue for trial with respect to its claims for breach of contract, unjust enrichment and inducing breach of contract.

[3] We would not give effect to these arguments, and for the reasons given by the motion judge, reject the unjust enrichment and inducing breach of control grounds of appeal.

[4] The motion judge did not deal at length with the breach of contract claim. We see no error in this. Although the pleading contains an general allegation that “the defendants” failed to pay the commissions, there is no contract between Nucorp and Mr. and Mrs. Duffin personally and there is no allegation that when Mrs. Duffin signed for the corporations she was doing so in her personal capacity – nor is there any evidence to support such a suggestion in any event. Mr. Skalanik now argues that the Commission Agreement re the Agreement of Purchase and Sale does not indicate that Hectares Properties Inc. is a corporation, and therefore that Mrs. Duffin may be liable personally as signing for an unincoporated entity. The Statement of Claim pleads, however, that Hectares Properties Inc. is a corporation and this is admitted in the Statement of Defence. It is therefore a fact, for purposes of trial, that Hectares Properties Inc. is a corporate entity. There is no force in the appellant’s argument in this regard therefore.

[5] The appeal is accordingly dismissed. Costs to the respondent fixed at $6000 all inclusive.