Court of Appeal for Ontario

Citation: A.G. Boca Construction Inc. v. Montanaro, 2013 ONCA 207

Date: 20130328

Docket: C56109

Before: MacFarland, Watt and Pepall JJ.A.

Between

A.G. Boca Construction Inc.

Plaintiff (Respondent)

and

Giuseppe Montanaro and Luca Montanaro

Defendants (Appellants)

Counsel:

Michael Miller and Michael Arbutina, for the appellants

Bernie Romano and Surya Sasan, for the respondent

Heard: March 27, 2013

On appeal from the judgment of Justice Gloria R. Klowak of the Superior Court of Justice, dated September 18, 2013.

APPEAL BOOK ENDORSEMENT

[1] The respondent was owed the sum of $245,000 plus interest by the appellants.

[2] In our view there are serious factual issues between the principals of the respondent corporation and the appellants which are incapable of resolution on the paper record before the court. The documentary evidence is far from clear. The Minutes of Settlement and Consent to Judgment were signed and prepared in July, 2008 while both parties had legal advice.

[3] The document signed in September, 2008 was purportedly signed by both parties without the benefit of legal advice. While the latter document makes no reference to the earlier Minutes of Settlement, the appellants argue it supersedes those minutes. The respondent company and its principals take a contrary view.

[4] We are of the view that these issues cannot be resolved without a trial. That said we note that the appellants concede that they continue to owe the respondent $27,500.

[5] Appeal is allowed and the judgment of Klowak J. is set aside.

[6] Costs of the appeal to the appellants fixed in the sum of $7,500 inclusive of disbursements and applicable taxes. Counsel agree that the costs below should be fixed in the sum of $15,000, and are payable in the cause.

"J. MacFarland J.A."