ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-3028-04
(North Bay)
DATE: 20120309
BETWEEN:
Roland Boissonneault Plaintiff (Moving Party) – and – Elsbeth Dillig, Peter Dillig, Homelife/C. Carlyle Real Estate Ltd. and C. Carlyle Real Estate Ltd. Defendants (Responding Parties)
Jennifer M. Kelly, for the Plaintiff
Paul E, Trenker, for the Defendants
HEARD: March 2, 2012
j.s. o’neill
REASONS ON MOTION
[ 1 ] This is a motion by the Plaintiff for summary judgment arising out of the alleged failure of the Defendants to comply with an accepted offer dated July 6, 2009. The motion is brought pursuant to Rule 20 of the Rules of Civil Procedure. In accordance with Rule 20.04 (2):
The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[ 2 ] Rule 20.04(2.1) provides:
In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
[ 3 ] For the reasons which follow, I would dismiss the Plaintiff’s motion.
[ 4 ] i. Paragraph 1 of the Minutes of Settlement dated July 6, 2009 stated in part as follows (Plaintiff’s Motion Record-Tab 2C)
The Defendants shall have 30 days within which to satisfy themselves that the rights of the Plaintiff have not been assigned to BBC Development of Ontario Ltd., as set out in Appendix B.
[ 5 ] The evidence as filed on the motion establishes that counsel for the Defendants took the following sets to satisfy the requirement of paragraph 1:
a. On July 31, 2009, counsel wrote to then solicitors of record Desmarais, Keenan to advise that he had spoken to Denis Carrier. In the proceedings before me, it was agreed that the contents of Mr. Trenker’s letter could not be disclosed. However, there is contained in the Supplementary Motion Record a letter dated December 21, 1998 written by Sandro Orlando of the firm Lucenti, Orlando, Ellies & Zytaruk in which Mr. Orlando stated in part as follows:
We are the solicitors for BBC Developments of Ontario Ltd...It would appear that the terms of the Agreement of Purchase and Sale were assigned to BBC Developments of Ontario Ltd.
[ 6 ] Mr. Orlando’s letter was CC’d to BBC Developments of Ontario Ltd. c/o Denis Carrier.
[ 7 ] ii. Counsel for the Defendants’ filed an affidavit sworn by Mr. Dottori on February 28, 2012. In this affidavit, Mr. Dottori indicates that he was a shareholder of BBC Developments of Ontario Ltd. In paragraph 2 he indicated that BBC (likely Boissonneault, Gabino and Cabading) came into existence on October 2, 1989 and that “this is the entity which is referenced by ‘In Trust’ in the Agreement”.
[ 8 ] iii. June Sampson swore an affidavit December 15, 2011. Appended as Exhibit A to that affidavit is an email from Mr. Dottori dated December 15, 2011 in which he concurs with the statements outlined in Mr. Trenker’s letter of December 15, 2011. The nine paragraphs in the letter of December 15, 2011 lend weight to the defendant’s assertion that the rights of the plaintiff were assigned to BBC Development of Ontario Ltd.
[ 9 ] iv. Attached to June Sampson’s affidavit of December 15, 2011 is Exhibit B – BBC Developments of Ontario Ltd opening balance sheet October 2, 1989. Under the category assets there is shown for deposit of land the sum of $31,000.00. This sum of money, including any interest earned following initial payment of the deposit is similar to the amount of the deposit cheque earlier paid out of Mr. Boissonneault’s account.
[ 10 ] On this summary judgment motion, I am to grant judgment if I satisfied that is no genuine issue requiring a trial with respect to a claim or defence. For the reasons outlined above, and having regard to reasonable inferences which can be drawn from the written evidence provided by the parties, I conclude that summary judgment in favour of the Plaintiff, enforcing and upholding the agreement of July 6, 2009 ought not to be granted.
[ 11 ] In arriving at this conclusion, I also bear in mind that on October 15, 2009, Mr. Boissonneault’s former solicitor wrote to Mr. Trenker and stated as follows:
“Further to our attendance at trial on June 6, 2009 on the above noted matter I am writing to canvass the possibility of an adjourned trial date in light of the parties’ failure to settle.”
[ 12 ] Several years passed before the within summary judgment motion was filed with the court. This lends weight to the Defendants’ argument that the Plaintiff accepted the failure to settle and took the necessary steps to reactive the litigation file and move the action forward to trial.
[ 13 ] In dismissing the summary judgment motion, I appreciate that I have reviewed beyond the 30 day timetable following July 6, 2009, other materials which appear to establish that the right of the Plaintiff were assigned to BBC . Clearly, the important time was the 30 days after July 6, 2009. But I am satisfied that the Defendants’ solicitor took reasonable steps in that period to make the inquiries necessary to satisfy himself (on behalf of his clients) that in fact the Plaintiff’s rights were assigned.
[ 14 ] Accordingly, for the above reasons, the Plaintiff’s summary judgment motion is dismissed. The Defendants are entitled to their costs of this motion, on the partial indemnity scale. If the parties cannot agree on the amount of these costs, I will fix them. For this purpose, the Defendants shall file, if necessary, a bill of costs and cost submission with the Trial Coordinator at Parry Sound. The filing shall be completed by March 19 2012. The Plaintiff and Moving Party may respond to this filing, by filing a cost submission in response, by March 26, 2012.
[ 15 ] Order accordingly.
Justice J.S. O’Neill
Released: March 9, 2012
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Roland Boissonneault Plaintiff (Moving Party) – and – Elsbeth Dillig, Peter Dillig, Homelife/C.Carlyle Real Estate Ltd. and C. Carlyle Real Estate Ltd. Defendants (Responding Party) REASONS on motion J.S. O’NEILL
Released: March 9, 2012