Court of Appeal for Ontario

Citation: Cooper v. Pavao, 2009 ONCA 384

Date: 20090506

Docket: C49674

Before: Weiler, Gillese and Epstein JJ.A.

Between:

Michael Cooper

Plaintiff (Respondent)

and

Carlos Pavao, Cidalia Maria Pavao, 6048382 Canada Inc., 586550 Ontario Limited, Goldmark Prescott Sanitation Inc. and Pavao Holdings Ltd.

Defendants (Appellants)

Counsel:

James Morton, for the appellants

D.T. Mann, for the respondent

Heard: May 5, 2009

On appeal from the judgment of Justice Alison Harvison Young of the Superior Court of Justice dated November 18, 2008.

APPEAL BOOK ENDORSEMENT

[1] Michael Cooper entered into three agreements with Carlos Pavao and/or 6048382 Canada Inc. under the terms of which he was to purchase certain shares. Mr. Cooper paid a total of $222,500 but never received the shares.

[2] Mr. Cooper sought partial summary judgment for the amount he had paid. Mr. Pavao admitted that he failed to return the share certificates, as promised, and that he had guaranteed any "downside" that Mr. Cooper might experience in respect of the shares. However, he argued that a genuine issue remained for trial based on an alleged oral agreement that any profit made on the shares, while Mr. Cooper held them, would be shared equally. Mr. Pavao counter-claimed for $20,000 in respect of a separate transaction. Mr. Pavao adduced no evidence that any profit was made on the shares.

[3] The motion judge granted partial summary judgment for $202,500, which represented the sum Mr. Cooper claimed less the $20,000 counterclaim. Mr. Pavao appeals.

[4] We would dismiss the appeal. The motion judge correctly found that there was no genuine issue requiring a trial on the partial summary judgment motion. Mr. Pavao has admitted that he personally guaranteed the subscription price of the shares and that he has failed to pay that sum to Mr. Cooper.

[5] Accordingly, there is no genuine issue requiring a trial and summary judgment was properly granted. The appeal is dismissed.

[6] Costs to the respondent are fixed in the amount of $7,500 all inclusive.