Court of Appeal for Ontario
Citation: Realcash Bancorp Inc. v. Pirani, 2008 ONCA 737
Date: 2008-10-27
Docket: C46317
Before: Sharpe, MacFarland and Epstein JJ.A.
Between:
Realcash Bancorp Inc. Plaintiff (Respondent)
and
Barkatali Pirani Defendant (Appellant)
And Between:
Barkatali Pirani Plaintiff by Counterclaim (Appellant)
and
RealCash Bancorp Inc. and Musa Suleman Defendants by Counterclaim (Respondents)
Counsel:
Maurice J. Neirinck for Barkatali Pirani
H. James Marin and Sylvia M. Samuel for Musa Suleman
Heard & endorsed orally: October 16, 2008
On appeal from the judgment of Justice Spence of the Superior Court of Justice dated November 9, 2006.
ENDORSEMENT
[1] The trial judge appears to have made his award in favour of the appellant on the basis of negligent misrepresentation. Negligent misrepresentation was not pleaded and, as we read the pleadings and the evidence, the thrust of the appellant’s case was that the respondent had pressured him into making an ill-advised investment. Breach of fiduciary duty was pleaded but no finding was made that there was a breach of fiduciary duty.
[2] The trial judge based his award in favour of the appellant on two key findings:
the respondent Suleman failed to disclose that he was to receive a commission on the sale of the shares; and
the acknowledgement given to the appellant and signed on behalf of a numbered company (“137”) by Suleman indicating that 137 was holding shares on behalf of the appellant was false.
[3] In our view, the finding relating to the nondisclosure of commission cannot be sustained in the face of the appellant’s clear admission that he knew Suleman would be paid a commission.
[4] Moreover, there is no evidence to indicate that the appellant relied on either the situation regarding commission or on the statement in the acknowledgement regarding the shares. It follows that, even if available on the pleadings, no claim for negligent misrepresentation is made out. We do not accept the submission that we should sustain the judgment on some general unspecified theory of wrongdoing.
[5] Accordingly, the appeal is dismissed, the cross-appeal is allowed, the judgment in favour of the appellant against the respondent is set aside and the counterclaim is dismissed.
[6] In these circumstances, it is unnecessary for us to deal with the motion regarding fresh evidence that was heard at the commencement of this appeal on which we reserved our ruling.
“Robert J. Sharpe J.A.”
“J. MacFarland J.A.”
“Gloria Epstein J.A.”