COURT OF APPEAL FOR ONTARIO

CITATION: Wade v. Ukeni, 2014 ONCA 99

DATE: 20140204

DOCKET: C56464

Laskin, van Rensburg and Hourigan JJ.A.

BETWEEN

Julianne Leah Wade

Applicant (Appellant)

and

Marcus Emejeror Ukeni

Respondent (Respondent in Appeal)

Gary S. Joseph and Kim Stock, for the appellant

Charles Baker, for the respondent

Heard and released orally: January 31, 2014

On appeal from the order of Justice John R. McCarthy of the Superior Court of Justice, dated December 7, 2012.

ENDORSEMENT

[1] The appeal is dismissed.

[2] We are not satisfied that the appellant’s right to cross-examine was interfered with by the trial judge. The appellant’s decision not to produce a document was a breach of the trial management judge’s order. Thus, we see no error in the trial judge’s decision to refuse to permit the appellant to cross-examine the respondent on this document. The appellant has not established any trial unfairness.

[3] We also reject the submission that the trial judge’s reasons were inadequate. He dealt with the legal issues raised by the parties and assessed the credibility of the witnesses. In our view, he provided a properly reasoned legal basis for his decision to dismiss the appellant’s claims.

[4] Further, we see no error in the trial judge’s conclusion that there was no resulting trust, given his finding that there was consideration provided for the transfer of the Clearmeadow property. That finding was open to him to make as the appellant was being released from the mortgage.

[5] There was also no error in the trial judge’s conclusion that the remedy of a constructive trust was not available. We agree with his finding that the appellant failed to establish any unjust enrichment. He found that there was no enrichment and no corresponding deprivation, as the appellant did not contribute disproportionately to the upkeep of the property. There was also a juristic reason for any benefit, namely the agreement between the parties for the transfer of the Clearmeadow property.

[6] With respect to the monies alleged to be owing by the respondent to the appellant, the trial judge based his decision on factual findings that were open to him to make on the evidence before him. We see no basis to interfere with those findings or with his conclusion regarding the claim for money advanced.

[7] Finally, the trial judge considered the evidence regarding the respondent’s breaches of a court order. He accepted the respondent’s apology and concluded that this conduct did not affect his assessment of the respondent’s credibility. That was a finding that was open to the trial judge to make.

[8] The appeal is dismissed. The respondent is entitled to his costs which are fixed at $7,500 inclusive of disbursements and HST.

“John Laskin J.A.”

“K. van Rensburg J.A.”

“C.W. Hourigan J.A.”