COURT OF APPEAL FOR ONTARIO

CITATION: LDR Properties Inc. v. 605446 Ontario Limited, 2014 ONCA 98

DATE: 20140203

DOCKET: C57034

Laskin, van Rensburg and Hourigan JJ.A.

BETWEEN

LDR Properties Inc.

Plaintiff

and

605446 Ontario Limited, Angelo Carlucci and

751518 Ontario Limited

Defendants (Appellants in Appeal)

and

Nicholas C. Tibollo, Michael A. Tibollo, and John Rizakos

Third Parties (Respondent in Appeal)

Ronald C. Chapman, for the appellants

Michael R. Kestenberg, for the respondent Nicholas C. Tibollo

Heard and released orally: January 30, 2014

On appeal from the order of Justice Herman J. Wilton-Siegel of the Superior Court of Justice, dated April 30, 2013.

ENDORSEMENT

[1] The appellants have not persuaded the court that there was any error on the part of the motion judge in determining that there was no issue requiring a trial and that summary judgement should be granted, dismissing the third party claim against Nicholas (Nick) Tibollo.

[2] The evidence at the motion fully supported the motion judge’s conclusion that there was no solicitor-client relationship between the appellants and the respondent. Although the respondent had been retained some years earlier with respect to litigating the parties’ rights under the joint venture agreement, when in September 2006 they decided to sell their interests, they retained other counsel of the firm Tibollo & Associates (a firm that is unrelated to the respondent).

[3] There was no evidence of any ongoing retainer. The alleged retainer was based on a single telephone call between Nick Tibollo and John Rizakos, who was the appellants’ lawyer at the time. Mr. Carlucci did not speak to Nick Tibollo directly and therefore did not engage him, and to the extent that Mr. Rizakos had a conversation with Nick Tibollo, it is apparent he was not seeking to retain him but only to obtain clarification respecting the manner of providing notice. The information Nick Tibollo provided was correct.

[4] What Nick Tibollo was not asked to do is what was at the heart of the appellants’ submissions – to provide advice as to whether the joint venture agreement permitted the transfer of shares without the unanimous consent of the shareholders. Ultimately, it was Mr. Rizakos who advised the appellants that they could waive the condition. In providing that advice he did not contend that he relied on Nick Tibollo’s advice.

[5] The appeal is accordingly dismissed with costs of $10,000, inclusive of disbursements and applicable taxes.

“John Laskin J.A.”

“K. van Rensburg J.A.”

“W. Hourigan J.A.”