COURT OF APPEAL FOR ONTARIO

CITATION: Cosford v. Player, 2012 ONCA 276

DATE: 20120501

DOCKET: C54077

Juriansz, LaForme and Ducharme JJ.A.

BETWEEN

Brian Cosford

Appellant

and

William Player, David Allport, Thomas Ambeau, John Wright, 24 North Street Inc., Jean Carberry, 1207228 Ontario Inc., & 1442968 Ontario Limited

Respondent

John D. Bonn, for the appellant

Jeffrey W. Kramer and Saroja Kuruganty, for the respondent

Heard: April 19, 2012

On appeal from the judgment of Justice Gary W. Tranmer of the Superior Court of Justice, dated June 24, 2011.

BY THE COURT:

A. OVERVIEW

[1] This is an appeal from the decision of Tranmer J. granting the motion by the respondent 1442968 Ontario Limited for summary judgment. At the end of oral argument, we advised counsel that the appeal would be dismissed with brief reasons to follow. Here now are those reasons.

[2] In Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, this court has recently undertaken a comprehensive review of Rule 20 and of the new test to be applied by the motion judge in deciding when to exercise the new powers under Rule 20. Still, the standard of review remains the same: the determination of whether there is a genuine issue requiring trial is a legal question, and will be reviewed on a standard of correctness.

[3] Further, any factual determinations by the motion judge in deciding the motion are reviewed on the deferential standard of palpable and overriding error. There are no categories of claims that should not be decided in a motion for summary judgment.

B. THE FACTUAL CONTEXT

[4] In this case, the appellant’s claim against the respondent is founded in tort. Although seven other defendants are named in the action, against whom a number of allegations are made, including fraud, the respondent is alleged to have made a negligent representation in a deed registered on title in connection with a property municipally known as 24 North Street, in Barrie, Ontario.

[5] In that transaction, which occurred on August 20, 2002, the respondent transferred the property at 24 North Street to another corporation, 24 North Street Inc.. This latter Corporation, and the person who apparently controlled it, William Player, are among the other defendants in the action. The impugned deed discloses that the consideration for the sale of 24 North Street was $1,400,000.

[6] The appellant was not involved in the respondent's sale of the property to 24 North Street Inc. There were no business dealings of any kind between the appellant and the respondent.

[7] In January 2003, approximately 6 months after the sale of the property by the respondent to 24 North Street Inc., the appellant loaned $335,000 to 24 North Street Inc., to be secured by a second mortgage on the property. In advancing the funds, the appellant understood that his mortgage was second in priority to the mortgage held by Laurentian Bank of Canada. On May 2, 2003, the Laurentian Bank mortgage was in default, and the bank issued Notice of Sale.

[8] Eventually, on December 21, 2004, by Court Order, the property sold for $805,000. After the costs associated with the sale, the payout of the first mortgage, and his solicitor's fees, the appellant received $7663.78 from his initial advance of $335,000.

C. THE MOTION JUDGE’S ANALYSIS OF THE RELEVANT FACTS

[9] The motion judge fully appreciated the five requirements of proof required to establish the tort of negligent representation as set out in the case of the Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993] 1 S.C.R. 87, at para. 34.

[10] Applying that test on the Rule 20 motion for summary judgment, the motion judge noted correctly the special relevance of the fourth criterion: “the representee must have relied, in a reasonable manner, on said negligent misrepresentation.”

[11] On this question of reliance, reasonable reliance, the motion judge carefully reviewed the appellant’s evidence given on his examination for discovery, as well as the evidence of the appellant’s then lawyer, Jean Carberry, now also a defendant in the action. The motion judge was also alive to and fully appreciated the nature of the tortious conduct alleged against this respondent, as distinct from the other and more wide-ranging allegations against the other defendants.

[12] The motion judge then made clear findings of fact as between these two parties, including the following:

(1) the appellant did not look at the deed containing the alleged negligent misrepresentation, though his lawyer did;

(2) the appellant did not rely upon the respondent’s representation when he decided to advance monies on the property;

(3) the representation made by the respondent on the deed was that “the consideration” for the sale of the property was $1.4 million;

(4) the lawyer representing the appellant in the transaction took from the deed that “the value” of the property was $1.4 million;

(5) the lawyer representing the appellant in the transaction prepared a document titled “Investment Authority” signed by the appellant which read, in part, that the “approximate value of the property” was $1.4 million;

(6) in the “Investment Authority,” the appellant instructed the lawyer not to obtain a current and independent appraisal of the property, and agreed that, in any event, “the responsibility for assessing the financial merits of the mortgage investment” rested with him.

D. SUMMARY AND CONCLUSION

[13] On this record, we are satisfied that the motion judge exercised correctly the powers in Rule 20.04 (2.1). At least implicitly, he asked and answered affirmatively the essential question: “Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment”?

[14] The instant case is not one such as the Mauldin group action and the Bruno action analyzed at length within Combined Air Mechanical Services Inc. Unlike in those cases, the record here was not voluminous; the motion raised only two narrow issues; and only a discrete number of findings of fact were required to decide the motion.

[15] On the record before him, the motion judge had ample evidence to conclude that there was no genuine issue requiring the trial in regard to the appellant’s claim against the respondent based upon negligent representation. In light of that conclusion, the motion judge also correctly found that he did not have to decide the issue raised by the respondent in the Rule 21 motion.

[16] Accordingly, the appeal is dismissed with costs. By agreement of counsel, the respondent’s costs are fixed in the sum of $10,000, inclusive of disbursements and applicable taxes.

Released: May 1, 2012 “RGJ”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”

“E.W. Ducharme J.A.”