CITATION: Bodnar v. Cupello, 2009 ONCA 824

DATE: 20091123

DOCKET: C50858

COURT OF APPEAL FOR ONTARIO

Feldman, Armstrong and Epstein JJ.A.

BETWEEN

Ian Bodnar and Shelby Minnie Bodnar

Appellants

and

Michael Joseph Cupello

Respondent

J. Richard Forget, for the appellants

Laird S. Scrimshaw, for the respondent

Heard and released orally: November 18, 2009

On appeal from the Order of Justice H.M. Pierce of the Superior Court of Justice dated July 31, 2009.

ENDORSEMENT

[1] This is an appeal from the motion judge’s dismissal of the appellants’ action for professional negligence against the respondent lawyer on a rule 20.01(3) motion for summary judgment.

[2] The appellants allege that the respondent negligently conducted a property transfer by naming improper vendors in the agreement of purchase and sale. The motion judge concluded that there is no genuine issue for trial as, even if the respondent was negligent, which was conceded only for the purposes of the summary judgment motion, the appellants suffered no damages.

[3] Once it was determined who was legally authorized to approve the transfer, that person refused to complete the deal on the terms originally proposed. Against this background, the motion judge, at paragraph 22, said:

The negligence of the defendant has been superseded by the refusal of Ms. Cherneyko to complete the deal on the terms originally proposed by Mr. Bodnar. …The issue of damages does not arise in those circumstances.

[4] On appeal, counsel for the appellant submitted that Ms. Cherneyko was not the person with authority to sell the properties. Whether this is so, it is clear on this record and on the findings of the motion judge that no person with the right to sell the properties would have done so for $5,000.

[5] The conclusion that no damages arise in such circumstances is unassailable. It follows that without damages, there is no sustainable action in negligence and the appeal is therefore dismissed.

[6] The respondent is entitled to his costs of the appeal fixed in the amount of $5,000, inclusive of disbursements and G.S.T.

“K. Feldman J.A.”
“Robert P. Armstrong J.A.”
“Gloria J. Epstein J.A.”