DIVISIONAL COURT FILE NO.: 213/01
COURT FILE NO.: 00-CV-192820SR
DATE: 20030529
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
blair r.s.j., BROCKENSHIRE and SOMERS JJ.
B E T W E E N:
DEBORAH ANN GRAPKO-BUBA by her Litigation Guardian, MICHAEL F. GRAPKO
Plaintiff
(Respondent)
- and -
LAW CRANBERRY DEVELOPMENT LIMITED
Defendant
(Appellant)
Lawrence S. Crackower, Q.C., for the Plaintiff (Respondent)
Joseph J. Colangelo, for the Defendant (Appellant)
HEARD: April 10, 2003
SOMERS J.
REASONS FOR JUDGMENT
[1] This is an appeal from the decision of The Honourable Mr. Justice Nordheimer dated February 23, 2001, following a summary trial conducted under the provisions of the simplified rules. In this judgment, he ordered the appellant to pay to the respondent the sum of $20,000.00, together with pre-judgment interest from February 29, 2000 to the date of trial. This was the amount of a deposit the respondent had earlier paid to the appellant for the purchase of a condominium unit.
[2] The Judgment was based on the trial judge's finding that at the time the respondent entered into the agreement of purchase and sale with the appellant, she was mentally incompetent and thus unable to make financial or other business decisions.
[3] The appellant raised a number of points on appeal, among them: that the appellant had no prior knowledge of the respondent's mental condition; that a number of incidents following the execution of the agreement of purchase and sale strongly supported a finding that the respondent was, at all times, mentally competent; that the contract sued on was not an unfair or unreasonable one; and that the trial judge applied an incorrect test in determining the appellant's mental infirmity.
[4] However, central to the appeal was the submission that the judge's finding of mental incompetency was based upon inadmissible evidence. This being a summary trial, the evidence on both sides was introduced by way of affidavit. There was no affidavit from the plaintiff herself concerning her mental condition. The only evidence of the respondent's alleged mental infirmity was contained in a letter sent by the respondent's solicitor to the solicitors for Law Cranberry on February 15, 2000, advising that Ms. Grapko-Buba did not intend to close the transaction and was seeking to cancel the transaction, and to obtain repayment of the deposit monies. In support of this request, her solicitor enclosed a copy of a medical report from Dr. S. Carl O'Sullivan, a practicing psychiatrist in Oakville. In it, Dr. O'Sullivan confirmed that the respondent was his patient, and that he had been treating her for what he described as a "depressed and agitated state" since November of 1999. His report said in part,
"On this occasion, she was in a mixed elated/depressed state and required immediate treatment. Examination revealed a pattern of behavior over previous weeks characterized by restlessness, over-activity, insomnia and impulsiveness. Her family physician reported to me that Dr. Grapko-Buba's family and friends had become seriously concerned about her deteriorated emotional state, impulsive behavior, and general poor judgment. Subsequently, she has co-operated fully with treatment and is now responding to a combination of anti-psychotic medication and tranquilizing agents.
It is my opinion that Dr. Grapko-Buba's mental state was psychologically unstable from early November 1999 until mid-January 2000. During this time, her judgment was impaired and she was not competent to make financial or other business decisions."
This report and the letter enclosing it were annexed as exhibits to the affidavit of Michael Grapko, the respondent's father.
[5] It is clear from the reasons that the trial judge was greatly influenced by this report. He stated in part,
"The medical report as to the plaintiff's condition is uncontradicted. I must conclude, therefore, that the plaintiff was not competent at the time she signed the agreement of purchase and sale. The defendant, however, says that it had no reason to know that the plaintiff was incompetent."
[6] We are of the view that the trial judge erred in accepting this report into evidence. No affidavit from Dr. O'Sullivan was presented, nor was the report filed pursuant to the provisions of s. 52 of the Ontario Evidence Act, R.S.O. 1990, c. E26. Counsel for the defendant at the trial was thus deprived of the opportunity to cross-examine the doctor on his report or to take whatever other remedial steps he might consider in order to counter it. Counsel for the appellant admitted that no objection was taken to its introduction at the trial. Nevertheless, we are of the view that although the simplified rules contemplate less formal introduction of evidence in order to achieve simplicity and economy of time, they do not permit noncompliance with the rules regarding the admissibility of expert testimony. Buffa v. Gauvin (1994), 18 O.R. (3d) 724 (O.S.C.). The mental condition of the respondent at the time she executed the agreement of purchase and sale was the entire basis upon which her claim rested. This condition was sought to be established entirely through the report of Dr. O'Sullivan, a report which, in our view, ought not to have been accepted into evidence in this fashion. There was no proper evidence before the trial judge upon which he could make a finding that at the time of the execution of the agreement of purchase and sale, the respondent was mentally incompetent. The claim therefore fails.
[7] In the result, the appeal is allowed, the judgment of Nordheimer J. set aside and the action is dismissed.
[8] In view of our disposition of this appeal on this basis, we have not thought it necessary to deal with the other points of appeal raised by counsel.
[9] So far as costs are concerned, counsel for the appellant conceded that the result might well have been different had a proper objection to the introduction of this evidence been made at the trial. He did not therefore seek costs of the trial. He does, however, seek costs of the appeal, which are granted and are directed to be paid by the respondent and are hereby fixed in the amount of $5,000.00 plus G.S.T., payable within 30 days.
SOMERS J.
I agree:
BLAIR R.S.J.
I agree:
BROCKENSHIRE J.
DATE: 20030529
DIVISIONAL COURT FILE NO.: 213/01
COURT FILE NO.: 00-CV-192820SR
DATE: 20030529
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BLAIR r.s.j., BROCKENSHIRE and SOMERS JJ.
B E T W E E N:
DEBORAH ANN GRAPKO-BUBA by her Litigation Guardian, MICHAEL F. GRAPKO
Plaintiff
(Respondent)
- and -
LAW CRANBERRY DEVELOPMENT LIMITED
Defendant
(Appellant)
REASONS FOR JUDGMENT
SOMERS J.
Released: 20030529