Court of Appeal for Ontario

CITATION: G. Lipton Sales Ltd. v. Sivitilli, 2015 ONCA 214

DATE: 20150330

DOCKET: C58874

BEFORE: Sharpe, Pepall and van Rensburg JJ.A.

BETWEEN

G. Lipton Sales Ltd. carrying on business under the firm name and style of LND Sales Plaintiff (Appellant)

and

Piero Sivitilli, Edward Sivitilli and North One Investments Inc. Defendants (Respondent)

COUNSEL: Michael A. Handler, for the appellant Jack F. Fitch and Jason Arcuri, for the respondent

Heard and released orally: March 25, 2015

On appeal from the order of Justice Edward Belobaba of the Superior Court of Justice, dated May 5, 2014.

ENDORSEMENT

[1] We are not persuaded that the motion judge erred by granting summary judgment dismissing the claim against the respondent. There was no evidence that the respondent had any knowledge of the alleged fraud perpetrated by his son, or that he participated in any way in that alleged fraud. The case put against the respondent was entirely speculative in nature, namely that as he had previously been in business with his son, and that his son had used a bank account associated with that business in relation to the alleged fraud, that the respondent somehow became liable for the fraud.

[2] We agree with the motion judge that in the circumstances of this case, that fell well short of raising a triable issue against the respondent.

[3] We do not agree with the submission that the motion judge erred in his interpretation of the pleading. As we read the statement of claim, no case was pleaded in negligence against the respondent to the effect that he had failed to monitor the use of the account or the activities of his son, or that he was under any legal duty to do so vis-à-vis the appellant, absent any knowledge on his part of the alleged transaction at issue. Nor are we persuaded that there was any procedural error that could have affected the result in this case.

[4] Accordingly, the appeal is dismissed.

[5] Costs to the respondent fixed at $7,500, inclusive of disbursements and taxes.

“Robert J. Sharpe J.A.”

“S.E. Pepall J.A.”

“K. van Rensburg J.A.”