Court of Appeal for Ontario

Date: 2017-02-22 Docket: C61960

Panel: MacFarland, van Rensburg and Huscroft JJ.A.

Between

Linderwood Holdings Inc., Angelo Sara, and 2202463 Ontario Inc. Applicants (Appellants)

and

Albino Armanasco Respondent (Respondent in Appeal)

Counsel

R.C.M. Belsito, for the appellants

Michael A. Katzman, for the respondent

Heard and Released

Heard and released orally: February 16, 2017

On appeal from: the order of Justice Paul M. Perell of the Superior Court of Justice, dated March 7, 2016.

Endorsement

[1] The appeal is from an order refusing to enjoin the sale of a development property under power of sale. Appellants' counsel indicated at the outset that he was not seeking to have the court set aside the sale, or any other relief that would affect the rights of a third party, namely the purchaser of the property, who was neither a party to the proceedings, nor served.

[2] The appellants challenge the application judge's findings with respect to the absence of bad faith on the part of the respondent and say that the application judge erred by ignoring certain important evidence. The appeal is from the order of the application judge, not his findings. As such, it is not open to this court to grant the type of relief sought by the appellants, and described at paragraph 95 of their factum: that this court find the subject property was "sold in bad faith and for an under value".

[3] We agree with the respondent's submission that what the appellant is seeking here, including the various types of damages in relation to the sale of the property, can be pursued in an improvident sale action (which was expressly left open by the application judge), and that it is not the proper role of this court to prejudge any issue in relation to that action.

[4] As for costs, we would not interfere with the order which was made in the discretion of the court and in the absence of any error in legal principle. Although the respondent's application was dismissed, the application judge's observation that "the heart of the dispute was the [appellants'] intention to prevent [the respondent] from completing the power of sale" was apt, and informed his decision to award full costs to the respondent in accordance with the language of the standard charge terms.

[5] The appeal is therefore dismissed, with costs to the respondent fixed in the sum of $15,000, inclusive of disbursements and HST.

J. MacFarland J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.