Court of Appeal for Ontario

Citation: Anastasiadis v. Vano, 2012 ONCA 137

Date: 20120301

Docket: C53629 and C53749

Before: Winkler C.J.O., Laskin and Cronk JJ.A.

Between

Vasilios Anastasiadis Plaintiff/Appellant

and

Steven Vano Defendant/Respondent

Counsel: Julie Amourgis, for the appellant Bernard B. Gasee, for the respondent

Heard and released orally: February 27, 2012

On appeal from the orders of Justice J.B. Shaughnessy of the Superior Court of Justice, dated April 7, 2011, and the order of Justice M.L. Lack of the Superior Court of Justice, dated April 26, 2011.

ENDORSEMENT

[1] The parties have a lengthy history of various real estate-related dealings. The appellant claims that he has never received a proper or any accounting from the respondent – his former lawyer and mortgagee – regarding the proceeds of sale of at least two properties. The appellant’s action seeking such an accounting, among other relief, has been set down for trial in Oshawa and is apparently scheduled to be spoken to in March or April of this year. The appellant’s entitlement to an accounting or other relief from the respondent is therefore a matter that will be dealt with by the courts in the normal course.

[2] The matter now before this court, however, relates to an agreement signed by the appellant on October 25, 2007 (the October Agreement) in respect of a third property situate in Whitby (the Fallstaff Property). Under the October Agreement, the appellant agreed to make monthly payments in the amount of $2,500 commencing November 25, 2007 in exchange for occupancy of the Fallstaff Property, failing which he agreed to immediately vacate the premises. In the same agreement, he acknowledged that the sum of $291,620.07 was owing to the registered owner of the Fallstaff Property, 1471423 Ontario Inc. (147 Ontario), a company controlled by the respondent, in respect of mortgage funds advanced and/or secured against the Fallstaff Property. There is also uncontradicted evidence that the appellant had recourse to independent legal and accounting advice when he signed the October Agreement.

[3] The appellant acknowledges that he is in default under the October Agreement. He has made no payments since October 2007 under the October Agreement. Nor has he otherwise paid any funds to 147 Ontario or the respondent, or into court, regarding his occupancy of the Fallstaff Property.

[4] In these circumstances, regardless of the state of accounts between the parties in relation to other transactions – a matter that will ultimately be tried – it was open to the motion judge to grant possession of the Fallstaff Property to 147 Ontario. We also see no error in the subsequent decision of Lack J. of the Superior Court of Justice, dated April 26, 2011, refusing to set aside the possession order.

[5] We acknowledge that the appellant alleges various procedural irregularities concerning the hearings before the motion judge and Lack J. We are satisfied that sufficient notice of the April 7, 2011 possession application was provided to the appellant through his solicitor of record and his then new solicitor. We are also persuaded that the materials necessary for the determination of the possession application were available to the court. Further, we see no basis on which to interfere with Lack J.’s decision to correct an inadvertent error in the formal version of the April 7, 2011 possession order to ensure that the relief afforded thereunder was granted to the proper party in accordance with the style of proceedings.

[6] Finally, during oral argument the appellant claimed that he entered into the October Agreement under duress and as a result of undue influence by the respondent. This claim is untenable on the record before this court.

[7] The appellant is an experienced real estate developer. As we have already said, he had the benefit of independent legal and accounting advice when he entered into the October Agreement. He took the benefit of that agreement without honouring his obligations under it. He remains in default and in possession of the Fallstaff Property. 147 Ontario was therefore entitled to the relief granted.

[8] For these reasons, the appeal is dismissed. The respondent is entitled to his costs of the appeal, fixed in the amount of $20,000, inclusive of disbursements and all applicable taxes.

“Winkler C.J.O.”

“John Laskin J.A.”

“E.A. Cronk J.A.”