Court File and Parties

CITATION: Isailovic v. Gertner, 2008 ONCA 895

DATE: 20081231

DOCKET: C48370

COURT OF APPEAL FOR ONTARIO

Laskin, Gillese and Blair JJ.A.

BETWEEN

Sasha Isailovic

Plaintiff (Appellant)

and

Henry Gertner and Terrance Gertner

Defendants (Respondent)

Counsel:

Igor Ellyn and Evelyn Perez, for the appellant

William S. O'Hara and Anna Husa, for the respondent

Heard and released orally: December 17 and 18, 2008

On appeal from the judgments of Justice Thea P. Herman of the Superior Court of Justice dated January 18 and April 14, 2008 and the judgement as to costs dated June 10, 2008.

ENDORSEMENT

[1] We substantially agree with the reasons of the trial judge. We add this.

[2] The appellant knew that the respondent was a fiduciary. He knew that the respondent had not fully disclosed the financial dealings on the property. And, though he had been told there was no money for construction financing, he knew specifically that there were two additional mortgages on the property. In his words, he knew that there was "$95,410 in play". Yet, with all this knowledge, the appellant nonetheless decided to compromise his non-disclosure claim and signed the release. He did so with the benefit of legal advice.

[3] In these circumstances, he can no longer complain about the respondent's conduct. See Quinn v. Epstein Cole and Radhakrishnan v. The University of Calgary Faculty Association, 2002 CarswellAtla 943.

[4] Accordingly, the appeal is dismissed. The proposed fresh evidence does not meet the fourth prong of the Palmer test, and thus the motion to introduce fresh evidence is also dismissed, with costs fixed at $5,000, all inclusive.

"John Laskin J.A."

"E.E. Gillese J.A."

"R.A. Blair J.A."