COURT OF APPEAL FOR ONTARIO

CITATION: Nizic v. Petrovic, 2016 ONCA 340

DATE: 20160504

DOCKET: C59449

Laskin, Pepall and Brown JJ.A.

BETWEEN

Blago Nizic

Plaintiff (Respondent)

and

Zdravko Petrovic and The Toronto-Dominion Bank

Defendants (Appellants)

Glenroy Bastien, for the appellants

James Smith, for the respondent

Heard: April 29, 2016

On appeal from the judgment of Justice Antonio Skarica of the Superior Court of Justice, dated September 12, 2014.

APPEAL BOOK ENDORSEMENT

[1] The appellant Petrovic makes four submissions:

1. He submits that the contract is unenforceable under section 4 of the Statute of Frauds because it is not in writing. He contends that though the trial judge stated the test correctly, he did not apply it correctly. We disagree with this submission. The trial judge found part performance, which took the case out of section 4. We agree with his finding.

2. The appellant submits that the contract was void for illegality because its purpose was to avoid capital gains tax. The trial judge found otherwise, and we agree with his finding. The contract was not illegal on its face. Capital gains may be payable on disposition, which has not yet occurred. This is not one of those cases in which the professed purpose of the contract could give rise to illegality.

3. The appellant submits that there was an intention to avoid land transfer tax on the Bearwood property. Even if true, it is irrelevant to the dealings between the two parties to this appeal in respect of the condominium.

4. Finally, the appellant submits that the trial judge erred in failing to apply the Limitations Act to reduce the amount owing in paragraph 5 of the judgment. We do not accept this submission. As the trial judge noted, the appellant did not raise the Limitations Act in his affidavit and we agree with the trial judge’s analysis of this issue.

[2] Accordingly, the appeal is dismissed with costs to the respondent fixed at $9,500, all in.