Court of Appeal for Ontario

Date: 2017-01-12 Docket: C62217

Judges: Strathy C.J.O., MacPherson and Hourigan JJ.A.

Between

Laura Mammone, Antonio Mammone and Daniele Mammone, Estate Trustees of the Estate of Frank Mammone

Applicants (Respondents)

and

Emilio Mammone and Density Garden Enterprises Inc.

Respondents (Appellants)

Counsel

Allan Rouben, for the appellants

Alastair J. McNish, for the respondents

Heard: January 9, 2017

On Appeal

On appeal from the judgment of Justice Grant R. Dow of the Superior Court of Justice, dated May 25, 2016, with reasons reported at 2016 ONSC 2681.

Endorsement

[1] The appellants appeal from the judgment of Dow J. of the Superior Court of Justice dated May 25, 2016. In the judgment, the application judge granted the respondent's application for the sale of two properties owned jointly by the two Mammone brothers, Emilio and the deceased Frank.

[2] Emilio resisted the sale on the basis that Frank, prior to his death, had agreed to sell his interest in the two properties to Emilio for $110,000. The application judge rejected this position. Applying s. 13 of the Evidence Act, R.S.O. 1990, c. E.23, and s. 4 of the Statute of Frauds, R.S.O. 1990, c. S.19, he held "there is no evidence directly from Frank Mammone that he had agreed to complete this transaction" and Emilio's actions at the relevant times did not demonstrate part performance.

[3] The appellants challenge these conclusions on this appeal. They contend that his conclusion on the Evidence Act s. 13 issue is inconsistent with this court's decision in Burns Estate v. Mellon (2000), 48 O.R. (3d) 641. They also submit that the application judge's analysis and conclusion on the Statute of Frauds part performance issue are inconsistent with this court's analysis in Erie Sand and Gravel Ltd. v. Seres' Farms Ltd. (2010), 2009 ONCA 709, 97 O.R. (3d) 241.

[4] We do not accept these submissions. The application judge explicitly applied Burns Estate and Erie Sand to the fact situation before him. He accurately stated the governing legal principles from these cases and then engaged in a careful identification and analysis of the key facts that needed to be considered under the umbrella of these principles. In an appeal where the alleged errors are properly characterized as questions of mixed fact and law, but tilted to the fact end of the spectrum, we cannot say that the application judge's conclusion comes anywhere close to being a palpable and overriding error.

[5] Crucially, as the application judge noted, the evidence relating to the actions and testimony of Emilio's and Frank's lawyers at the relevant time simply does not support a conclusion that the brothers had reached an agreement that Frank would sell his interest in the two properties to Emilio for $110,000. Emilio's lawyer's letter to Frank's lawyer talked about a change in mortgage obligations; it did not confirm an agreement to sell or a price and it sought advice from Frank's lawyer on "how you wish to proceed". Frank's lawyer's affidavit, responding to questions posed by Emilio, was: "To the best of my knowledge, I do not recall any agreement to transfer Frank Mammone's interest in two rental properties to Emilio Mammone."

[6] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $15,000 inclusive of disbursements and HST.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

C.W. Hourigan J.A.