Court of Appeal for Ontario

Date: 2018-05-02 Docket: C64027

Panel: LaForme, Watt and Nordheimer JJ.A.

Between

Mohammed Sajed Rahaman and 2463495 Ontario Inc. Applicants (Respondents in Appeal)

and

Traian Fiscia also known as Ted Fiscia also known as Trajan Fisca and 1784773 Ontario Inc. Respondents (Appellants)

Counsel

Harry Sarros, for the appellants

James R. Smith, for the respondents

Heard and released orally: April 30, 2018

On appeal from: the judgment of Justice John Sproat of the Superior Court of Justice, dated June 5, 2017.

Reasons for Decision

[1] The respondents appeal from the judgment of the application judge who ordered the appellants to pay to the applicants the sum of $120,000.

[2] The parties are two individuals and their respective corporations. They had entered into an agreement by which the appellants were to sell a property to the applicants. Concurrent with these events, the appellants had borrowed the sum of $120,000 from the applicants. Those monies were to be repaid through the closing of the sale of the property.

[3] The sale of the property did not go according to plan. The first agreement of purchase and sale for the property was not completed. A second agreement of purchase and sale was entered into. At the same time, the appellant, Fiscia, signed an acknowledgment of the $120,000 loan on behalf of himself and his company. Some weeks later, the appellant, Fiscia, alone signed a promissory note respecting the $120,000 loan. This promissory note stipulated that $40,000 was to be applied as a deposit on the sale of the property and the remaining $80,000 was to be paid on the closing of the sale.

[4] This sale of the property was also not completed, at least in part because the $40,000 was never paid by the appellants.

[5] The applicants brought a Notice of Application seeking the return of the $120,000. The application judge granted that relief. In doing so, he rejected the position of the appellants that the entire sum of $120,000 was a deposit on the sale of the property and, since that transaction did not close, the appellants did not have to repay that amount since the deposit was forfeited.

[6] We see no error in the conclusion reached by the application judge. We agree with him that the evidence clearly established that the $120,000 was a loan that was to be repaid by the appellants, either through the sale of the property or directly, if the sale was not completed. We note that neither the loan acknowledgment nor the promissory note referred to the $120,000 as being a deposit.

[7] The appellants contend that the applicants failed to show that they were ready and able to complete the purchase of the property and therefore they are not entitled to the return of the monies. The application judge found that neither side had led evidence as to their ability to complete the sale of the property. However, the critical point was that the sale was not completed and that triggered the obligation on the appellants to repay the loan. We agree with the application judge on this point as well.

[8] Finally, we agree with the application judge that it would have been better for this matter to have proceeded as an action upon which a summary judgment motion could have been brought. It is not the type of issue that ought to be dealt with through a Notice of Application. However, like the application judge, in the particular circumstances of this case, especially the lack of any real factual dispute, we find that any technical error in the procedure followed is insufficient to undermine the result: r. 2.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[9] The appeal is dismissed. The applicants (respondents in appeal) are entitled to their costs of the appeal fixed in the amount of $10,000 inclusive of disbursements and HST.

"H.S LaForme J.A."

"David Watt J.A."

"I.V.B. Nordheimer J.A."