COURT OF APPEAL FOR ONTARIO

CITATION: Leger v. Tittarelli, 2013 ONCA 613

DATE: 20131010

DOCKET: C56201

Gillese, Juriansz and Strathy JJ.A.

BETWEEN

Dennis Leger

Applicant (Appellant)

and

Joseph Tittarelli

Respondent (Respondent)

W. Graydon Sheppard, for the appellant

Michael Bordin, for the respondent

Heard and released orally: September 27, 2013

On appeal from the judgment of Justice David Samuel Crane of the Superior Court of Justice, dated September 19, 2012.

ENDORSEMENT

[1] The appellant appeals against a judgment granted, after a trial of issues, determining that a real estate partnership between the parties was never dissolved and that the respondent was entitled to an accounting of the partnership. In coming to these conclusions, the trial judge held that the respondent’s right to an accounting was not time-barred.

[2] In determining these issues, the trial judge made findings of fact on the basis of the conflicting affidavit and viva voce evidence. In particular, he found that the respondent held legal title to the property in trust for the partnership and that the appellant’s entitlement to a transfer was subject to an accounting of their contributions to the partnership. Any resolution of the appellant’s claim to a vesting order would have to await that accounting.

[3] The trial judge’s findings on these issues are supported by the evidence and the appellant has identified no palpable or over-riding error that would warrant this court’s intervention.

[4] We would not give effect to the appellant’s submission that the respondent’s claim for unpaid debts was not properly before the court. The order directing a trial of the issues provided that the parties’ affidavits were to be treated as pleadings. The issue was squarely raised in the respondent’s affidavit sworn April 14, 2008, at paras. 14, 15, 24-27.

[5] Nor do we agree that the trial judge erred in finding that the equitable doctrine of laches did not apply. Neither party took steps to obtain an accounting, but both made efforts to resolve their outstanding obligations. In light of the trial judge’s conclusion that the partnership had not been dissolved, and was continuing, the parties remained fiduciaries and each had an obligation to account. There is nothing inequitable in the circumstances in requiring them to do so.

[6] I will add that we do not agree with the submission of the appellant’s counsel that the judgment for an accounting is one-sided or confined to the appellant’s obligation to account. In any case, that issue is properly a matter to be raised on a motion for directions under para. 4 of the judgment under appeal.

[7] For these reasons, the appeal is dismissed, with costs fixed at $10,000 all-inclusive.

“E.E. Gillese J.A.”

“R. Juriansz J.A.”

“G.R. Strathy J.A.”