Bochna v. Lawson, 2015 ONSC 3306

Court File and Parties

NEWMARKET COURT FILE NO.: CV-00106706

DATE: 20150525

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WILLIAM BOCHNA, Plaintiff

AND:

JOHN ALEXANDER LAWSON, Defendant

BEFORE: THE HON. MR. JUSTICE J.R. McISAAC

COUNSEL: Robert W. Dowhan, Counsel, for the Plaintiff

Scott Fairley, Counsel, for the Defendant

HEARD: May 21 & 22, 2015

ENDORSEMENT

[1] Despite what is contained in the pleadings, the parties are agreed that there was a 50/50 partnership agreement to purchase the subject property as an investment. The defendant contends that the plaintiff agreed to withdraw from this arrangement on the basis of the return of his share of the deposit. Although there are some aspects of the evidence that tend to support that position, I am satisfied, on balance, that the plaintiff did no such thing.

[2] First, in my view, it is extremely improbable that the plaintiff would forego such a potentially lucrative opportunity after having shown such an interest in the subject property which was adjacent to his residence. I accept his evidence that once the purchase agreement was signed, he and the defendant stood to gain a significant immediate profit from their venture. He immediately applied for and obtained a full mortgage commitment to complete the purchase of this property. The idea of an outright gift to the defendant is counter-intuitive in the extreme. Second, although a replacement deposit cheque was delivered to the plaintiff, I accept that he only cashed it much later on the advice of his solicitor. I agree that this circumstances does not support a withdrawal from the partnership. Third, the immediate and consistent refusal of the plaintiff to socialize with the defendant during the remainder of their stay in Florida suggests an interpretation of the events in favour of the former, that is, that he had been swindled out of this partnership. Lastly, the defendant’s response to the demand letter from the plaintiff’s solicitor dated May 14, 2010 makes no mention of a “withdrawal” from the partnership.

[3] Given all of those circumstances, I am satisfied that the plaintiff did not agree to retire from the partnership. I am not prepared to consider the defendant’s alternative argument that he could unilaterally bring the partnership to an end because that defence was not pleaded.

[4] Accordingly, I grant the declaration sought that the plaintiff is a 50 percent owner of the subject property subject to payment of an amount to be determined by the local Referee. That task will include an assessment of the purchase and carrying costs to date.

[5] I am prepared to consider costs’ submissions in writing, those of the plaintiff to be delivered within 15 days of the release of this judgment and those of the defendant, 15 days thereafter, all to my office in Barrie.

McISAAC J.

Date: May 25, 2015