Court File and Parties

COURT FILE NO.: 190/03

DATE: 20040202

SUPERIOR COURT OF JUSTICE - ONTARIO

(Divisional Court)

RE: 1133720 Ontario Limited, Rachela Vera Dickinson (Appellants) AND Birenbaum and Bernstein and Isaac Birenbaum (Respondents)

BEFORE: FARLEY J.

COUNSEL: Rachela Vera Dickinson, in person

Sheldon Tenenbaum, for the Respondents

HEARD: February 2, 2004

E N D O R S E M E N T

[1] The appeal is allowed in part. There was no finding of credibility as to Mrs. Dickinson's evidence that there was a $1,500 fee agreed upon; Mr. Birenbaum did not testify on that aspect nor did he cross-examine. The amount of the award is therefore reduced to $1,500.

[2] Unfortunately Mrs. Dickinson is concerned that her lawyer, Mr. Birenbaum, was in conspiratorial league with counsel for the purchaser to defraud her of her property. There is absolutely no evidence to support that. I do have sympathy for Mrs. Dickinson as to the purchaser's using the name "Dickinson Holdings Ltd" as the assigned purchaser pursuant to the agreement of purchase and sale. Not only was this not in good taste, but it aroused the suspicions needlessly of Mrs. Dickinson. She asserts that she had the right to approve the assignee and to get postdated cheques for the mortgage; that is not contemplated by the agreement of purchase and sale which she executed before giving to Mr. Birenbaum at the last minute. Similarly she criticizes Mr. Birenbaum for not checking out the credit worthiness of this assignee, but Mr. Birenbaum as her lawyer would have no legal basis for this and Mrs. Dickinson did not protect herself by including any such provision in the agreement of purchase and sale. Further Mrs. Dickinson should appreciate that she chose Mr. Birenbaum at the last minute; he was her choice, not the choice of counsel for the purchaser.

[3] With respect to the $25,000 cheque, Mr. Birenbaum did indicate to the purchaser's counsel that he would be delivering it to Mrs. Dickinson but it appears as per Mrs. Dickinson's letter of July 22, written directly to purchaser's counsel that she did not wish to litigate. She did in fact sign the mutual release for $12,500 (instead of $25,000 which could well have resulted in litigation at a time when Ms. Dickinson was, by her own acknowledgement this morning, desperate to sell the property, even at a substantial undervalue and did not wish to have the property tied up for years). She also wrote Mr. Birenbaum a cheque that day for his claimed legal fees (including disbursements and GST) $2,410.71. As per my views above, the appropriate amount is $1,500.

[4] Each side is to bear their own costs here and below in light of the divided success.

J. Farley

Released: February 2, 2004