COURT FILE NO.: CV-14-439
DATE: 20220704
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: )
PETER IOANNIDIS )
Plaintiff ) D. Veinot, J. Dalton, for the Plaintiff
- and - )
STEVE IOANNIDIS, MARIA )
IOANNIDIS, NIK POULIMENOS )
and ASHTON REALTY INC. )
Defendants ) D. Hawreliak, for Steve Ioannidis and
) Maria Ioannidis
) A. Postelnik, for Nik Poulimenos and
) Ashton Realty Inc.
) HEARD: November 8, 9, 10, 15, 17
and 18, 2021; December 23, 2021
reasons for judgmenT
Overview
[1] The claim being made in this trial is for declaratory relief, an accounting, and damages allegedly suffered arising out of the sale of an income property, beneficially owned by the Plaintiff as a partner with two family members, which he did not authorize. The claim is based upon alleged breaches of fiduciary duties and negligence by the Defendants. The Plaintiff has abandoned any claim for unjust enrichment.
[2] All of the Defendants seek dismissal of the Plaintiff’s action. The Defendants, Steve Ioannidis and Maria Ioannidis, also counterclaim against the Plaintiff for alleged damages based on their inability to immediately access their respective shares of the net proceeds of the sale of the income property due to Peter Ioannidis obtaining a court order directing that the funds be held in trust pending further court order.
Facts
[3] Peter Ioannidis, Steve Ioannidis and Jim Ioannidis are brothers who, after emigrating to Canada, went into business together, along with a fourth brother, Tom Ioannidis. The business involved, among other things, the purchase and leasing of an income property located at 144-150 King Street West in Kitchener (“the Property”) that is the subject of this action. Legal title to the Property is in Steve Ioannidis’s name, as trustee; he held it in trust for himself and his brothers.
[4] Tom Ioannidis left the partnership in or around 1993 and the three remaining brothers continued working together.
[5] Maria Ioannidis was Jim Ioannidis’s wife; Jim passed away in 2001. After his passing, Steve Ioannidis and Peter Ioannidis formed a new partnership with Maria Ioannidis in 2001 which continued to manage and lease the Property (“the Partnership”). From that point on, Steve Ioannidis held the Property in trust for himself, Peter Ioannidis and Maria Ioannidis as partners.
[6] The partners had no written partnership agreement and no written trust agreement.
[7] As of June 10, 2013, an Opinion of Market Value of the Property obtained from Coldwell Banker Peter Benninger Realty, Brokerage valued the fair market value of the Property as between $1,200,000 - $1,400,000.
[8] In January/February 2014, Peter Ioannidis called for a meeting of the partners and it was held at Maria Ioannidis’s house. In attendance were Maria, her son Nick Ioannidis, Peter and his wife, Ismini, Steve Ioannidis and his wife, Irene. Peter Ioannidis wanted to talk about what to do with the Property. It is the evidence of Steve Ioannidis and Maria Ioannidis that, at this meeting, Peter Ioannidis told them to buy him out or he would buy them out and he suggested a price of $1.3 million; Steve Ioannidis and Maria Ioannidis were not willing to make a decision immediately and told this to Peter. Peter Ioannidis denies that he said this at the January/February 2014 meeting. Instead, his evidence is that he only wanted to talk about the future of the Property. It appears that there was some discussion at this meeting about obtaining an appraisal of the Property. As well, the need to lease out a vacant commercial space on the ground floor of the Property was discussed.
[9] A second meeting of the same individuals took place at Maria Ioannidis’s house in March 2014. Peter Ioannidis’s evidence is that, at this meeting, he did state to Steve Ioannidis and Maria Ioannidis that he wanted to be bought out or he would buy them out of the Property. It is the evidence of Steve Ioannidis and Maria Ioannidis that they understood from comments made by Peter Ioannidis that he had other uses for his share of the sale proceeds and he wanted the money by the end of June 2014. They believed Peter Ioannidis preferred to sell, he thought the value of the Property was around $1.3 million, and he wanted a quick sale. Steve Ioannidis and Maria Ioannidis contend that Peter Ioannidis did not make it clear to them that the Property could not be sold to a third party.
[10] The Defendant, Nik Poulimenos, is a licensed real estate agent. He is a good friend of Nick Ioannidis, Maria Ioannidis’s son. Nick Ioannidis recommended Nik Poulimenos to Steve Ioannidis to list the vacant commercial space for rent, Unit 146. At that time Nik Poulimenos was an agent with RE/MAX Twin City Realty Inc. Steve Ioannidis signed the listing agreement on February 19, 2014 as the Landlord. During a discussion about the leasing of the empty space, Steve Ioannidis asked Nik Poulimenos if he would check to see if there was any interest in someone purchasing the Property. It is agreed by the parties that Steve Ioannidis had Peter Ioannidis’s authorization to lease the empty retail space but not to list the Property for sale.
[11] At the time of listing the retail space for lease, Nik Poulimenos was aware that Steve Ioannidis was partners with Peter Ioannidis and Maria Ioannidis.
[12] Sometime after entering into the listing agreement for the lease of Unit 146, Nik Poulimenos was also asked, either by Steve Ioannidis or by Nick Ioannidis on Steve’s behalf, to provide his thoughts on the value of the Property if it were to be put up for sale. Nik Poulimenos gave a verbal opinion that he thought it was worth between $1.5 million and $2.2 million. Steve Ioannidis admits that he did not discuss obtaining this valuation or the opinion itself with Peter Ioannidis.
[13] In March 2014, further to Steve Ioannidis’s request to see if there was a buyer who may be interested in the Property, Nik Poulimenos proceeded to contact six real estate agents whom he knew dealt with multi-family buildings and/or commercial clients. Historical income and expense records were shared with the potential buyers. Two entities made offers to purchase the Property. The first offers received were for $1.35 million from Denzil Properties (“Denzil”) and $1.25 million from Revel Development Corporation (“Revel”). Denzil subsequently increased its offer to $1.6 million.
[14] It was Steve Ioannidis’s evidence that he spoke with Peter Ioannidis on the phone to discuss the $1.6 million offer, and that Steve thought the Property was worth more but Peter told him to “stick to your price” or “stick to your offer”. Peter Ioannidis denies that this conversation took place.
[15] Sometime between the listing of the vacant commercial space for lease and making inquiries to see if someone was interested in purchasing the Property, Nik Poulimenos began working for the Defendant, Ashton Realty Inc. (“Ashton Realty”).
[16] In late March 2014, a meeting took place at Nik Poulimenos’s office for formal presentation of the bidder’s offers. In attendance were Steve Ioannidis, Nick Ioannidis (who was acting as his mother’s representative at her request), Nik Poulimenos and representatives for Denzil and Revel. While Revel increased its offer to $1.8 million, Nik Poulimenos was of the opinion that the better choice of the two was Denzil because he believed the deal with Denzil would close in a timely manner. After some consideration, Steve Ioannidis countered back to Denzil at $1.725 million. He did not discuss the $1.725 million offer directly with either Peter Ioannidis or Maria Ioannidis, although he did discuss it with Nick Ioannidis.
[17] The $1.725 million price was accepted. The closing date for the sale was July 21, 2014. Nik Poulimenos was paid a commission in the amount of $60,375.00.
[18] Peter Ioannidis was very upset when he heard about the sale. He wanted Steve Ioannidis to cancel the deal but Steve refused to do so.
[19] Steve Ioannidis admits that Peter Ioannidis did not authorize either the listing for sale of the Property with Nik Poulimenos or the sale price of $1.725 million. Steve Ioannidis’s evidence was, however, that he had expected Peter Ioannidis to be happy to hear that he would be getting more money from the sale of the Property at $1.725 million than the $1.3 million amount Peter had identified back in January 2014. Steve Ioannidis says he was taken aback by Peter’s reaction.
The Issues
[20] The following are the main issues to be determined:
(a) Did Steve Ioannidis and Maria Ioannidis owe a fiduciary duty to Peter Ioannidis in respect of the sale of the Property? If so, did they breach that duty?
(b) In the alternative, did Steve Ioannidis and Maria Ioannidis act negligently in selling the Property?
(c) Is Peter Ioannidis entitled to a remedy or damages from Steve Ioannidis and Maria Ioannidis?
(d) Did Nik Poulimenos and Ashton Realty owe a fiduciary duty to Peter Ioannidis in respect of the sale of the Property? If so, did they breach that duty?
(e) In the alternative, did Nik Poulimenos and Ashton Realty act negligently in selling the Property?
(f) Is Peter Ioannidis entitled to a remedy or damages from Nik Poulimenos and Ashton Realty?
(g) Is Peter Ioannidis entitled to punitive, aggravated or exemplary and moral damages?
(h) Are Steve Ioannidis and Maria Ioannidis entitled to damages for losses allegedly incurred as a result of Peter Ioannidis obtaining the court order requiring the net proceeds of the sale to be held in trust?
Witness Testimony
[21] The court heard testimony from ten witnesses and two experts. Generally, I found all of the witnesses who testified to be credible. There were some reliability issues that arose which I believe primarily stemmed from the degradation of memories due to the passage of time as this trial took place more than seven years after the Property was sold. I am of the view that the issues can primarily be determined on the basis of the facts that are not contested.
Analysis
(a) Did Steve Ioannidis and Maria Ioannidis owe a fiduciary duty to Peter Ioannidis in respect of the sale of the Property? If so, did they breach that duty?
[22] The Plaintiff asserts that Steve Ioannidis and Maria Ioannidis, as his partners, owed him a fiduciary duty and a duty of utmost good faith. He submits that their failure to disclose to him the valuation of the Property given by Nik Poulimenos, that the Property had been listed for sale, and all offers received for the purchase of the Property constitutes a breach of their duties. He also contends that they breached their fiduciary duties by selling the Property without his consent. He submits that these breaches give rise to an obligation to account and liability for damages: Rochwerg v. Truster, 2002 58 O.R. (3) 687 (Ont. C.A.), at para. 24.
[23] It is the position of Steve Ioannidis and Maria Ioannidis that there was no breach of any duty and no liability. While they acknowledge that partners owe a fiduciary duty to each other, they argue that, in this case, once Peter Ioannidis stated the words “buy me out or I will buy you out”, this dissolved the Partnership and effectively triggered a “shotgun” ultimatum which entitled each partner to act in their own self-interest. They further submit that they acted in good faith because they could have bought Peter Ioannidis out at a value of $1.3 million and then immediately turned around and sold the Property for more, keeping the proceeds for themselves but, instead, they sold the Property to a third party intending to divide the net proceeds equally among all three partners.
Dissolution of the Partnership
[24] The parties agree that Peter Ioannidis did state to Steve Ioannidis and Maria Ioannidis “buy me out or I will buy you out”. The evidence is unclear whether this occurred at the first meeting in January/February 2014 or at the second meeting in March 2014, or both. There is also a difference of opinion among the witnesses about what Peter Ioannidis meant by these words. What effect did this statement have? I conclude that the only legal effect would have been to end the partnership he had with Steve Ioannidis and Maria Ioannidis. There is no suggestion that the Partnership could have continued in any practical sense thereafter.
[25] Section 32 of the Partnerships Act, R.S.O. 1990, c. P.5 (“the Partnerships Act” or “the Act”) provides in part:
- Subject to any agreement between the partners, a partnership is dissolved,
(c) if entered into for an undefined time, by a partner giving notice to the other or others of his or her intention to dissolve the partnership, in which case the partnership is dissolved as from the date mentioned in the notice as the date of dissolution, or, if no date is so mentioned, as from the date of the communication of the notice.
[26] The utterance of those words served to dissolve the Partnership pursuant to s. 32(c) of the Partnerships Act. The effect of that dissolution terminated the Partnership and left the partnership affairs to be wound up.
Duties Owed After Dissolution
[27] I accept the Plaintiff’s evidence that he believed the partners were going to wind up the business of the firm – including any sale of the Property – based on decisions made together. I also accept that he believed Steve Ioannidis was going to get a new appraisal of the Property in order to further the discussion amongst the partners about its sale. Peter Ioannidis did not understand or agree that Steve Ioannidis was going to proceed to sell the Property without him.
[28] On the other hand, I also accept that Steve Ioannidis believed that, by Peter Ioannidis saying “buy me out or I will buy you out”, Peter wanted out of the Partnership and that the Property would be sold. I also accept Steve Ioannidis’s evidence that he understood from other comments made by Peter Ioannidis that he wanted his share of the proceeds by the end of June 2014.
[29] Where there is no written partnership agreement, the mutual rights and duties of the partners are governed by the Partnerships Act: Rochwerg, at para. 7.
[30] Each partner owes duties of loyalty, utmost good faith and avoidance of conflict and self-interest to the other partners: Rochwerg, paras. 22 and 36.
[31] Partners owe a strict duty, both in equity and by s. 28 of the Partnerships Act, of disclosure concerning full information of all things affecting the partnership: Rochwerg, para. 23.
[32] Partners also owe a duty to account, found in equity and in s. 29(1) of the Partnerships Act: Rochwerg, paras. 53 and 56.
[33] It is argued on behalf of Steve Ioannidis and Maria Ioannidis that, similar to the situation in Simkeslak Investments Ltd. v. Kolter Yonge LP Ltd., 2011 ONSC 7134, Peter Ioannidis triggered a “shotgun buy/sell provision” and that, once that happened, any fiduciary duties that had once existed between the partners ceased to exist.
[34] In Simkeslak, the plaintiffs brought a motion for summary judgment on a claim for breach of fiduciary duty, breach of trust, misrepresentation and unjust enrichment. They sought one-half of an alleged secret profit made by the defendant, Kolter Yonge, from the sale of its 100% interest in a property which had been owned by a partnership in which the plaintiffs and Kolter Yonge each held a 50% interest. Kolter Yonge brought a cross-motion for summary judgment for dismissal of the plaintiffs’ action. The Court granted the cross-motion and the plaintiffs’ claims were dismissed. The Court found that, prior to sale by the defendant to a third party, the partners must have been aware that each was acting in their own self interest and there was no loyalty or trust between them; neither party was in a vulnerable position; both were sophisticated parties who were negotiating a purchase and sale of their respective partnership interests; and the plaintiffs could divest their partnership interest at any time (para. 65).
[35] I am of the view that Simkeslak is distinguishable for a number of reasons. First, unlike the plaintiffs in that case, Peter Ioannidis had no power or authority to force or activate a sale of the Property on his own. There was no partnership agreement containing such a provision. He was not on title to the Property. Since title was in Steve Ioannidis’s name alone, Peter was dependent on Steve Ioannidis and, therefore, vulnerable. Second, the plaintiffs in Simkeslak had met with the ultimate purchaser on their own to try and negotiate a deal but had been unsuccessful. The Court found that, through those negotiations, they were aware of the price the purchaser may have been willing to pay. That is not the case here. Peter Ioannidis was not informed of who the bidders were and he never had any discussions with them. Third, in Simkeslak, the plaintiffs had themselves acted without any regard to the interests of the defendant in light of the steps they took to find a purchaser on their own. Here, Peter Ioannidis had not acted in a manner contrary to the interests of his partners as it relates to selling the Property. While the evidence indicates that he may have had some future plans in mind for turning the Property into condominiums if he had been able to buy it, in the period January to March 2014, he did not take any steps unknown to his partners to actually put that plan into effect.
[36] As was held in Simkeslak, at para. 63, a court must consider the facts of the particular situation and the relationship that existed between the parties in order to determine whether fiduciary duties existed between them during the period when such duties are alleged to have been breached. In the case before me, I find there was evidence of trust, confidence and vulnerability to support a fiduciary relationship that continued after the termination of the Partnership as Peter Ioannidis had no ability to sell the Property.
[37] I am satisfied that the fiduciary duties owed by the partners continued until the Partnership’s business was wound up and the Property was sold. The question then becomes what, if any, fiduciary duties were breached given what transpired.
Duty of Full Disclosure
[38] Section 28 of the Partnerships Act provides:
- Partners are bound to render true accounts and full information of all things affecting the partnership to any partner or the partner’s legal representatives.
[39] Since the arrangements regarding the sale of the Property constituted matters “affecting” the Partnership, pursuant to s. 28 of the Partnerships Act, Steve Ioannidis was obliged to disclose full information to Peter Ioannidis concerning its sale. This did not happen. As a result, I find that Steve Ioannidis breached his duty of full disclosure owed to Peter Ioannidis.
[40] With respect to Maria Ioannidis, the evidence established that she was not involved in the operation and running of the Property, and that Steve Ioannidis did not keep her personally informed about the valuation received from Nik Poulimenos or the offers received for the Property. While her son, Nick Ioannidis, was aware of this information and was acting as his mother’s representative, Steve Ioannidis had advised Nick to keep things quiet and not tell his mother until a decision was made about a sale. As Maria Ioannidis did not have timely and complete information about the Property’s valuation and sale, I find that she cannot be held in breach of her full disclosure duty to Peter Ioannidis.
Duty to Obtain Consent
[41] The Plaintiff submits that, pursuant to under s. 24(8.) of the Partnerships Act, Steve Ioannidis and Maria Ioannidis were required to obtain his consent before selling the Property. Subsection 24(8.) provides:
The interests of partners in the partnership property and their rights and duties in relation to the partnership shall be determined, subject to any agreement express or implied between the partners, by the following rules:
Any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners, but no change may be made in the nature of the partnership business without the consent of all existing partners.
[42] The Partnership’s business was the leasing of the residential and commercial units in the Property. As found previously, Peter Ioannidis had dissolved the Partnership in early 2014, prior to the sale of the Property. I conclude that the sale was for the purpose of winding up the firm’s business as a result of that dissolution and was not a “change … in the nature of the partnership business”. Accordingly, s. 24(8.) does not apply in these circumstances.
[43] After dissolution, the Act contemplates partners being able to continue to bind each other as necessary to wind up the affairs of the partnership. To this end, s. 38 of the Partnerships Act provides:
- After the dissolution of a partnership, the authority of each partner to bind the firm and the other rights and obligations of the partners continue despite the dissolution so far as is necessary to wind up the affairs of the partnership and to complete transactions begun but unfinished at the time of the dissolution, but not otherwise; provided that the firm is in no case bound by the acts of a partner who has become insolvent; but this proviso does not affect the liability of a person who has, after the insolvency, represented himself or herself or knowingly suffered himself or herself to be represented as a partner of the insolvent.
[44] By virtue of s. 38, Steve Ioannidis had the requisite authority to sell the Property, in order to wind down the affairs of the Partnership, without the need to obtain the unanimous consent of all of the partners: Zeron v. Zoller, [2003] O.J. No. 6069 (Ont. S.C.J.), at para. 11; affirmed [2004] O.J. No. 4695 (Ont. C.A.). In this instance though, Maria Ioannidis had told Steve Ioannidis that she would go along with whatever he thought was best in terms of selling the Property.
[45] In law, Steve Ioannidis also had authority to sell the Property as the registered owner on title without the consent of Maria Ioannidis and Peter Ioannidis. As the Divisional Court held in 1168760 Ontario Inc. v. 6706037 Canada Inc., 2019 ONSC 4702 (Ont. Div. Ct.), at para. 38, a trustee has the power to sell a property without the consent of the beneficiaries:
The respondents argue that Bertrand did not have authority, as a bare trustee, to transfer the property without the consent of the beneficiaries. However, the LTA does not recognize trusts (with certain exceptions that are not relevant here). Pursuant to s. 62(1) of the LTA, a notice of an express, implied or constructive trust shall not be entered on the register. Thus, an individual who holds land as a "trustee" may deal with the land as if that description had not been inserted. In other words, that individual is the legal registered owner of the land.
See also Bao v. Mok, 2019 ONSC 915, at para. 155.
[46] Steve Ioannidis was not simply a trustee for Maria Ioannidis and Peter Ioannidis as he also held the Property in trust for himself as a member of the Partnership. There was no evidence before me that one of the trust terms was that Steve Ioannidis could not sell the Property without the unanimous consent of all of the beneficiaries.
Was the sale of the Property an improvident sale?
[47] Peter Ioannidis contends that the sale of the Property was an improvident one. He asserts that the fair market value of the Property at the time of sale was $2.2 million and so, by selling it for $1.725 million, Steve Ioannidis caused a loss to the Partnership. Peter Ioannidis submits that he should be compensated for his 1/3 share of the difference in price.
[48] In support of his $2.2 million valuation, the Plaintiff called an expert witness, Michael Parsons, to testify. Mr. Parsons was qualified to give expert evidence with respect to a real property appraisal of the Property. He authored a retrospective narrative appraisal report, dated May 25, 2017, that provided a final estimate of market value at $2.2 million as of March 31, 2014, using a “highest and best use” analysis. In preparing his report, Mr. Parsons conducted an exterior inspection of the Property on April 14, 2016. Mr. Parson was not able to conduct an interior inspection but, in any event, the building had already undergone significant renovation by the time of his attendance. In his opinion, if the Property had been openly marketed for a reasonable period of time of between 3-9 months, it would have obtained a $2.2 million price.
[49] It is not possible to determine with precision what the fair market value of the Property would have been if it had been put on the open market for a 3-9 month period back in 2014. What can be determined is whether the price obtained was substantially below fair market value and whether reasonable precautions were taken for the sale.
[50] Back in March 2014, there were a number of opinions available concerning what a fair price might be for the Property: Coldwell Banker had provided a valuation of $1.2 million to $1.4 million in June 2013, less than a year before the sale; Nik Poulimenos gave an opinion of between $1.5 million and $2.2 million; Peter Ioannidis identified $1.3 million (based on the Coldwell Banker opinion); and Steve Ioannidis thought $2.0 million. Mr. Parsons’s valuation of $2.2 million is close to the value identified by Steve Ioannidis and matches the high-end of Nik Poulimenos’s assessment. And then there were the actual bids received, which ranged from $1.25 million to $1.8 million. It is very difficult to compare all of these valuations as they were arrived at during various times, using different approaches and assumptions. However, I am not satisfied that the purchase price was so low that it would support a conclusion that this was an improvident sale and did not represent the Property’s true value. Ultimately, the Property was sold to an “arm’s length” purchaser, following the receipt of competing bids, for a price that fell right in the middle of the range of these valuations.
[51] In assessing the conduct of Steve Ioannidis, it is my opinion that he carried out his duties to take reasonable steps to obtain the fair market value of the Property. He retained a licensed real estate agent to make inquiries of interest, to provide an opinion as to the value of the Property, and then to engage with agents for potential buyers. While the Property was not listed on the open market, Steve Ioannidis did not want it publicly listed because he was concerned about tenants leaving if they discovered that the building was being put up for sale. Nik Poulimenos contacted six agents with clients interested in commercial properties. Two arm’s-length bidders made competing bids. The $1.725 million was not the first and only offer received. That price was reached only after counter-offers were made. Although the sale of the Property happened relatively quickly, I am satisfied that reasonable precautions were taken when selling the Property in the circumstances. Thus, even if a higher price could have been obtained by having the Property sit on the market for a longer period, I conclude that the ultimate purchase price was not substantially below fair market value at the relevant time. I find that the price paid was adequate and that Steve Ioannidis and Nik Poulimenos, on Steve’s behalf, exercised reasonable diligence leading up to the transaction: D'Atri v. Chilcott (1975), 1975 CanLII 596 (ON SC), 7 O.R. (2d) 249 (Ont. H.C.), at para. 32. Finally, as a 1/3 partner who would share in the sale proceeds, Steve Ioannidis also had an interest in obtaining the highest price for the Property. Given the dissolution of the Partnership and the need to wind-up the business of the firm, I am of the view that he was not required to wait up to 9 months to see if a better offer might be received.
[52] Based on the foregoing, I find that the sale of the Property was not an improvident sale.
(b) In the alternative, did Steve Ioannidis and Maria Ioannidis act negligently in selling the Property?
[53] As the Supreme Court of Canada held in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, at para. 3:
A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damages; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.
[54] For the reasons set out in paragraphs 50 and 51 above, I find that the Plaintiff has failed to establish that Steve Ioannidis and Maria Ioannidis acted negligently in selling the Property.
(c) Is Peter Ioannidis entitled to a remedy or damages from Steve Ioannidis and Maria Ioannidis?
Accounting
[55] The law is clear that partners must account for every benefit derived by him or her without the consent of co-partners from any transaction concerning the Partnership or its assets. Section 29(1) of the Partnerships Act provides:
- (1) Every partner must account to the firm for any benefit derived by the partner without the consent of the other partners from any transaction concerning the partnership or from any use by the partner of the partnership property, name or business connection.
[56] As the Court in Davis v. Ouellette, 1981 CanLII 626 (BC SC), [1981] B.C.J. No. 1745, 27 B.C.L.R. 162 (B.C.S.C.), at para. 85, held:
In equity, and by s. 31 of the Partnership Act, partners are required to render true accounts and full information of all things affecting the partnership. Thus, when the defendant unilaterally decided to proceed alone, as he clearly did, he owed his partner a full accounting and a full disclosure of all the information he had relating to the partnership. …
[57] Since Steve Ioannidis sold the Property without full disclosure to Peter Ioannidis, he must give a full accounting of the sale of the Property.
Damages
[58] In addition to an accounting, Peter Ioannidis seeks damages for the breach of any fiduciary duties.
[59] As the Court in Rochwerg explained at para. 36, the recognized principles of utmost good faith, loyalty and avoidance of conflict of duty and self-interest are primarily to preclude a partner from using partnership assets for personal gain, from making secret profits, and from personally benefiting to the detriment of other partners. In determining whether damages are appropriate for a breach of a fiduciary duty, the assessment is focused on the gain of the actor not on the loss of the beneficiary.
[60] After the termination of the Partnership in early 2014, emotions were running high and the partners acted out of hurt and anger. In selling the Property without Peter Ioannidis’s involvement, I do not find that Steve Ioannidis and Maria Ioannidis acted for personal gain or benefit. There is no evidence of fraudulent conduct. The evidence is that they were always intending to share with Peter Ioannidis his full 1/3 share of the net proceeds. Accordingly, I do not assess the Plaintiff any damages for the breach of full disclosure by Steve Ioannidis.
(d) Did Nik Poulimenos and Ashton Realty owe a fiduciary duty to Peter Ioannidis in respect of the sale of the Property? If so, did they breach that duty?
[61] It is alleged by the Plaintiff that Nik Poulimenos and, vicariously, Ashton Realty breached their fiduciary duty to the Plaintiff by failing to make full disclosure of the valuation of the Property; by failing to obtain the consent of all three partners to the sale; and by failing to obtain the best price possible. Nik Poulimenos and Ashton Realty deny they breached any fiduciary obligations owed to the Plaintiff.
[62] The Plaintiff’s position is that Nik Poulimenos was on sufficient notice that Steve Ioannidis was a partner with Peter Ioannidis and Maria Ioannidis and that he held the Property in trust for the Partnership, and so Nik Poulimenos should not have proceeded to list and sell the Property without the consent of all three partners. The Plaintiff argues that Nik Poulimenos had knowledge of facts which should have caused him to make further inquiries before proceeding to sell the Property at the direction of Steve Ioannidis alone. And if he had made those inquiries, he would have discovered that Peter Ioannidis had not been consulted about the sale of the Property and had not consented to the sale to Denzil for the purchase price. The Plaintiff submits that Nik Poulimenos and Ashton Realty, although strangers to the trust, should be held liable as a constructive trustee for a breach of that trust by Steve Ioannidis because Nik Poulimenos was reckless or wilfully blind to both the existence of the trust and the dishonest conduct of Steve Ioannidis in connection with the trust: Bullock v. Key Property Management Inc. (1997), 1997 CanLII 3440 (ON CA), 33 O.R. (3d) 1, [1997] O.J. No. 1448 (Ont. C.A.), at paras. 8-9. It is the Plaintiff’s position that Nik Poulimenos is not entitled to the protection of s. 62(2) of the Land Titles Act, R.S.O. 1990, c. L.5 (“the LTA”) and that he is liable to the Plaintiff under the doctrines of knowing receipt and wilful blindness. Counsel for the Plaintiff also argues that liability should be imposed on Nik Poulimenos and Ashton Realty, even though strangers to the fiduciary relationship between Steve, Peter and Maria, through application of the doctrine of knowing assistance: Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu Binacional v. Garcia, 2020 ONCA 412, at paras. 31-36. The elements of knowing assistance in a fiduciary breach are: (i) a fiduciary duty; (ii) a fraudulent and dishonest breach of the duty by the fiduciary; (iii) actual knowledge by the stranger to the fiduciary relationship of both the fiduciary relationship and the fiduciary’s fraudulent and dishonest conduct; and (iv) participation by or assistance of the stranger in the fiduciary’s fraudulent and dishonest conduct: Caja, at para. 32.
[63] There was nothing in the evidence that would have sent out a warning to Nik Poulimenos that he needed to make enquiries to determine if Steve Ioannidis truly had sufficient authority to sell the Property. The title to the Property was in Steve Ioannidis’s name; a search of Geowarehouse confirmed this. Nik Poulimenos had been dealing with Steve Ioannidis for the listing of the ground unit for lease and he had asked Steve whether anyone else had to sign the paperwork and Steve Ioannidis indicated no. Maria’s son, Nick Ioannidis, was involved in the sale negotiations along with Steve Ioannidis. While Nik Poulimenos was aware that there was “family strife”, it was his information that Steve Ioannidis was consulting with the family about the sale. His emails to other agents reflected his understanding in this regard. All of these factors were sufficient to allay any concern a reasonable person might have had. Moreover, it appears to me that Nik Poulimenos is fully protected by the well-settled principle of law that the registered owner can deal with the property regardless of it being held in trust. In any event, no written trust agreement existed so what were the terms of the trust that applied? The Plaintiff did not establish that one of the trust terms was that Steve Ioannidis could not sell the Property without the consent of all three partners. For these reasons, it is not shown that Nik Poulimenos’s failure to make further enquiry about Steve Ioannidis was a manifestation of wilful blindness or knowing receipt.
[64] Further, the evidence does not establish that Steve Ioannidis was acting dishonestly towards the trust, or that Nik Poulimenos suspected that Steve was acting dishonestly. Accordingly, the facts do not support a finding of wilful blindness or liability being imposed on Nik Poulimenos or Ashton Realty as a constructive trustee.
[65] There was no fraudulent or dishonest breach of a fiduciary duty by Steve Ioannidis. As a result, the doctrine of knowing assistance also does not apply and so I find that no such liability can be imposed on Nik Poulimenos or Ashton Realty.
[66] Nik Poulimenos admitted knowing that Steve Ioannidis was partners with Peter Ioannidis and Maria Ioannidis. He contends, however, that he did not know the terms of the trust by which Steve Ioannidis held title to the Property. It is his position that s. 62(2) of the LTA applies in the circumstances of this case and that that provision authorized him to deal with Steve Ioannidis alone in selling the Property without the need to make further inquiry, as Steve was the registered owner. Nik Poulimenos and Ashton Realty argue that the dispute between Steve Ioannidis and Peter Ioannidis was not their concern. If the Property was being held in trust by Steve Ioannidis, then Maria and Peter may be entitled to damages from Steve but that could not prevent the sale of the Property, and there are no damages owing from Nik Poulimenos or Ashton Realty.
[67] Subsections 62(1) and (2) of the LTA provide:
- (1) A notice of an express, implied or constructive trust shall not be entered on the register or received for registration.
(2) Describing the owner of freehold or leasehold land or of a charge as a trustee, whether the beneficiary or object of the trust is or is not mentioned, shall be deemed not to be a notice of a trust within the meaning of this section, nor shall such description impose upon any person dealing with the owner the duty of making any inquiry as to the power of the owner in respect of the land or charge or the money secured by the charge, or otherwise, but, subject to the registration of any caution or inhibition, the owner may deal with the land or charge as if such description had not been inserted.
[68] The decision of the Court in Randvest Inc. v. 741298 Ontario Ltd. (1996), 1996 CanLII 8207 (ON SC), 30 O.R. (3d) 473 (Ont. Gen. Div.), at paras. 10 and 16, confirmed the intent of s. 62 is not to recognize trusts and that the registered owner may deal with the property as if such description had not been inserted.
[69] Counsel for the Plaintiff argues that s. 62(2) of the LTA only applies to the benefit of a bona fide purchaser: see Pichelli v. Adair Barristers LLP, 2019 ONCA 843, at para. 4; and 1168760 Ontario Inc. v. 6706037 Canada Inc., 2019 ONSC 4702 (Ont. Div. Ct.), at paras. 60-62. He submits that it does not apply to the benefit of a real estate agent acting on behalf of a trustee selling a property, like Nik Poulimenos.
[70] While s. 62(2) clearly indicates that “any person dealing with the owner” is relieved of an obligation to make inquiries as to the owner’s powers to deal with the land, no caselaw was put before me by counsel for Nik Poulimenos that holds that a real estate agent can rely on that subsection. However, I am of the view that it is not necessary for me to decide if this subsection applies to the benefit of Nik Poulimenos in light of the Divisional Court’s holding in 1168760 Ontario Inc, at para. 38, that a trustee has the power to sell a property without the consent of the beneficiaries.
[71] In the result, I am satisfied that Nik Poulimenos and Ashton Realty did not owe a fiduciary duty to Peter Ioannidis in respect of the sale of the Property.
(e) In the alternative, did Nik Poulimenos and Ashton Realty act negligently in selling the Property?
[72] The Plaintiff alleges that Nik Poulimenos and Ashton Realty were negligent in the sale of the Property because they failed to obtain the best price possible. The Plaintiff contends that the Property should have been listed on the open market for longer than it was in order to obtain the highest price. He relies on the opinion of his expert that the average listing period for an income property of this nature is 3 to 9 months.
[73] Nik Poulimenos and Ashton Realty submit that they did not owe a duty of care to Peter Ioannidis and, if they did, that they did not breach that duty. They say that Steve Ioannidis received fair market value on the sale of the Property and, therefore, neither he nor his two partners, Maria Ioannidis and Peter Ioannidis, suffered any loss.
[74] The onus is on the Plaintiff to show that there was a duty of care owed to him, that a certain standard of care was required by the real estate agent and the agency, that the standard was breached, and that the breach caused damages: Krawchuk v. Scherbak¸ 2011 ONCA 352, at para. 131.
[75] The Plaintiff has failed to prove that Nik Poulimenos and Ashton Realty owed him a duty of care as a 1/3-share beneficiary of the trust held by the registered owner and principal, Steve Ioannidis, in the circumstances of this case.
[76] In the event that I am wrong in this regard, I am of the view that the Plaintiff has failed to establish what the standard of care would be. Counsel for the Plaintiff submits that the court does not require expert evidence of the standard to be applied where: (i) the issue relates to a non-technical matter or one that would fall within the knowledge and experience of an ordinary person; or (ii) the conduct is so egregious that it is obvious that his or her conduct has fallen short of the standard of care, even without knowing precisely the parameters of that standard: Krawchuk, at paras. 131-135. I accept that there can be cases when expert evidence is not required. However, in this situation, with the possible exception of the failure to perform a formal registry search of title to the Property, I am not persuaded that any of the other conduct of Nik Poulimenos so obviously fell outside the usual or customary norm that expert evidence was not required to establish both the standard and that it was breached.
[77] Even where a realtor has failed to meet the standard of care expected in the circumstances, where a plaintiff has failed to prove any loss caused by that failure, the claim will be dismissed: Pepper’s Produce Ltd. v. Medallion Realty Ltd., 2013 BCSC 2314, at para. 43. I do not find that there was any loss caused by Nik Poulimenos’s failure to perform a formal registry search of title to the Property.
[78] Finally, given my conclusion that the sale of the Property was not improvident and that a fair market price was obtained, I do not find that there were any damages caused by a breach of any duty of care owed by Nik Poulimenos and Ashton Realty in relation to the sale.
[79] Accordingly, no finding in negligence is made as against Nik Poulimenos and Ashton Realty.
(f) Is Peter Ioannidis entitled to a remedy or damages from Nik Poulimenos and Ashton Realty?
[80] There was no duty of care owed by Nik Poulimenos and Ashton Realty to Peter Ioannidis, so there is no entitlement to any damages for negligence.
[81] The Plaintiff also sought the return of his share of the commission paid to Nik Poulimenos and Ashton Realty. I accept and adopt the approach taken in Jackson v. Packham Real Estate Ltd. (1980), 1980 CanLII 1691 (ON SC), 28 O.R. (2d) 261 (Ont. H.C.), wherein the Court held that, even in a case of breach of fiduciary duty, where no real fraud is found, the agent will generally be able to keep the commission he or she has earned on the sale because the owner would have been charged this commission by a realtor to sell the property in any event. There was no evidence of fraud in this case and there was no evidence that the commission charged was unreasonable in the circumstances or would not have been paid to another realtor for acting on the sale. I decline to order the return of the 1/3 share of the commission to Peter Ioannidis.
(g) Is Peter Ioannidis entitled to punitive, aggravated or exemplary and moral damages?
[82] The Plaintiff seeks punitive damages in the amount of $100,000 as against Steve Ioannidis and Maria Ioannidis. He also seeks punitive damages in the same amount as against Nik Poulimenos and Ashton Realty.
[83] Punitive damages are an exceptional remedy. They are awarded in cases where the conduct has been so reprehensible that they are necessary to achieve the goals of denunciation and deterrence. They are limited to misconduct that represents a marked departure from ordinary standards of decent behaviour: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 (S.C.C.), at paras. 36 and 68.
[84] Steve Ioannidis’s conduct constituted a breach of his full disclosure fiduciary obligations. The evidence does not support a finding that his misconduct was so egregious to amount to bad faith, however. Steve Ioannidis and Maria Ioannidis were not secretly benefiting from the sale to the detriment of Peter Ioannidis. I do not find that Steve Ioannidis’s conduct was motivated by self-interest or that it was purposely repugnant to Peter Ioannidis’s best interests.
[85] Communication between the brothers was tense and limited between January and March 2014. The evidence is that each of Peter, Steve and Maria felt hurt, betrayed and angry, as did their children. This was very personal due to the family connections. The decision to sell the Property was made in this emotionally charged and fraught atmosphere. While Steve Ioannidis’s conduct in proceeding with the negotiation and ultimate sale of the Property without Peter Ioannidis’s involvement may have been done in a manner that bordered on being high-handed, I do not find that it can reasonably be characterized as oppressive, malicious, vindictive or otherwise reprehensible in the circumstances of this case. Even if I were to conclude that Steve Ioannidis acted in bad faith, I am of the view that this is not a case where punitive damages would be warranted.
[86] I have found that Nik Poulimenos and Ashton Realty did not owe any fiduciary duty or duty of care to Peter Ioannidis. Accordingly, no punitive damages are warranted as against them.
[87] I decline to award any punitive, aggravated or exemplary or moral damages in the circumstances.
(h) Are Steve Ioannidis and Maria Ioannidis entitled to damages for losses allegedly incurred as a result of Peter Ioannidis obtaining the court order requiring the net proceeds of the sale to be held in trust?
[88] Steve Ioannidis and Maria Ioannidis’s counterclaim was withdrawn at the trial, with the exception of the one claim for damages as a result of the Plaintiff seeking and obtaining a court order requiring that the sale proceeds continue to be held in trust. They claim damages for the opportunity cost of not having access to that money.
[89] I am of the view that the law is clear that no action lies in respect of the seeking, obtaining or granting of the Order made by Justice Flynn, dated June 25, 2014: Lanworks Inc. v. Thiara, [2007] O.J. No. 1829, 157 A.C.W.S. (3d) 497 (Ont. S.C.J.), at paras. 4, 7, and 11; Nash v. CIBC Trust Corp., [1996] O.J. No. 3940, 7 C.P.C. (4th) 263 (Ont. Gen. Div.), at para. 40.
[90] Since the sale proceeds were tied up pursuant to the terms of an order of the Court, there is no liability found on the part of Peter Ioannidis.
[91] In any event, I am not satisfied on the evidence before me that either Steve Ioannidis or Maria Ioannidis actually suffered any damages as a result of the said Court Order.
[92] Accordingly, I dismiss the counterclaim of Steve Ioannidis and Maria Ioannidis.
Disposition
[93] Based on the reasons set out above, I order as follows:
a. I declare that Peter Ioannidis, Steve Ioannidis and Maria Ioannidis were equal partners in the Partnership.
b. I declare that the Partnership was the beneficial owner of the Property prior to the sale of the Property.
c. I declare that Steve Ioannidis held title to the Property in trust for Peter Ioannidis and Maria Ioannidis.
d. The Defendant, Steve Ioannidis, shall account to Peter Ioannidis with respect to the sale of the Property pursuant to s. 29(1) of the Partnerships Act.
e. Each of Peter Ioannidis, Steve Ioannidis and Maria Ioannidis are entitled to one-third of the balance of the funds held in the Partnership’s bank account (ending in 921).
f. Each of Peter Ioannidis, Steve Ioannidis and Maria Ioannidis are entitled to one-third of the balance of the net sale proceeds from the sale of the Property currently held in trust together with accrued interest.
g. The Plaintiff’s action as against Maria Ioannidis, Nik Poulimenos and Ashton Realty is dismissed.
h. The Plaintiff’s claim for damages as against Steve Ioannidis for breach of fiduciary duties is dismissed.
i. The Plaintiff’s claim for punitive damages as against the Defendants is dismissed.
j. The Counterclaim of Steve Ioannidis and Maria Ioannidis as against the Plaintiff is dismissed.
Costs
[94] I would strongly urge the parties to agree on costs. If they are unable to do so, then costs submissions may be made as follows:
(a) By July 25th, 2022, the Plaintiff shall serve and file his written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and
(b) The Defendants shall serve and file their responding costs submissions of no more than three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers, by August 8th, 2022; and
(c) The Plaintiff’s reply submissions, if any, are to be served and filed by August 15th, 2022 and are not to exceed two pages.
(d) If no submissions are received by August 15th, 2022, the parties will be deemed to have resolved the issue of the costs and costs will not be determined by me.
B. MacNeil J.
MacNEIL J.
Released: July 4, 2022