Court File and Parties

CITATION: Walcott v. De Lucia, 2011 ONCA 508

DATE: 20110711

DOCKET: C53345

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and Epstein JJ.A.

BETWEEN

Michael Keith Walcott

Appellant

and

William C. De Lucia

Respondent

Michael Walcott, in person

M. Scott Martin, for the respondent

Heard and released orally: July 7, 2011

On appeal from the judgment of Justice Paul Perell of the Superior Court of Justice, dated January 27, 2011.

ENDORSEMENT

[1] The appellant, a self-represented litigant, appeals the judgment of Perell J. of the Superior Court of Justice dated January 27, 2011 granting summary judgment in favour of the respondent in a solicitor’s negligence action, thereby dismissing the appellant’s action. In our view, the appeal must be dismissed.

[2] The appellant claims that the properties in question were sold at depressed prices during power of sale proceedings through the negligence of the respondent solicitor, thereby preventing the appellant from recovering his investment in the properties. However, as the motion judge indicated, the properties were sold in mid-February 2009 under power of sale by the first mortgagee. The appellant knew of the power of sale proceedings from at least early June 2008 when the respondent solicitor provided him with a copy of the notice of sale.

[3] Notwithstanding this knowledge, the appellant took no steps to contact the mortgagee to negotiate the protection of his interests or to acquire the right to step into the mortgagee’s shoes. Importantly, from at least September 2008, the appellant was represented by litigation counsel (not the respondent). He still took no steps in respect of the power of sale proceedings.

[4] The appellant appears to be under the impression that if the respondent solicitor had registered a lien on the properties in question on his behalf, his interest would have been protected and the power of sale proceedings prevented. This is incorrect. The appellant had an unsecured investment in the properties in question. On the record before the motion judge, there was no legal basis for the registration of a lien on the property in the appellant’s favour during the time that he was represented by the respondent. In any event, to prevent the sale of the properties, the appellant would have been required to negotiate a pay-out of the debt owed to the first mortgagee. There is no evidence that he was ever in a position to do so.

[5] In all these circumstances, we agree with the motion judge that no genuine issue exists requiring a trial in respect of the respondent solicitor’s conduct. It is most unfortunate that the appellant appears to have lost the entirety of his investment in the properties in question. However, there is no basis in law to fix the respondent with responsibility for this loss.

[6] The respondent shall have his costs of this appeal in the amount of $5,000, inclusive of disbursements and all applicable taxes.

“M. J. Moldaver J.A.”

“E.A. Cronk J.A.”

“G. J. Epstein J.A.”