Court File and Parties

Citation: Palkowski v. Ivancic, 2008 ONCA 419 Date: 2008-05-27 Docket: C45942

Court of Appeal for Ontario MacPherson, Cronk and Watt JJ.A.

Between:

Jerry Palkowski and Jane Palkowski Plaintiffs (Appellant)

and

Stipan Ivancic also known as Steve Ivancic Defendant (Respondent)

Counsel: M.Z. Tufman for the appellants W.S. O’Hara and A. Husa for the respondent

Heard: May 22, 2008

On appeal from the judgment of Justice Alexandra Hoy of the Superior Court of Justice dated August 16, 2006.

Appeal Book Endorsement

[1] We see no merit in the appellants’ arguments relating to errors in the motion judge’s Rule 20 and Rule 21 analysis and conclusions. Nor does the fresh evidence tendered by the appellants suggest a different answer. In particular, the proposed fresh evidence of the three family-connected members of the appellants is in direct conflict with Mr. Palkowski’s own evidence.

[2] We observe that the scope of the surviving unjust enrichment and constructive trust claim is a matter for determination in the ongoing litigation between the parties once the plaintiffs’ pleading has been reframed as ordered by the motion judge.

[3] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed at $7500 inclusive of disbursements and G.S.T.

[4] Mr. Gasee, the appellant’s former counsel, attended today to seek costs for his previous motion to be removed from the record which was granted on October 2, 2007. We award costs to Mr. Gasee of $750 inclusive of disbursements and G.S.T. as against the appellants in respect of that motion.