





CITATION:
Walcott v. De
          Lucia, 2011 ONCA 508



DATE: 20110711



DOCKET: C53345



COURT OF APPEAL FOR ONTARIO



Moldaver, Cronk and Epstein JJ.A.



BETWEEN



Michael Keith Walcott



Appellant



and



William C. De Lucia



Respondent



Michael Walcott, in person



M. Scott Martin, for the respondent



Heard and released orally: July 7, 2011



On appeal from the judgment of
          Justice Paul Perell of the Superior Court of Justice, dated January 27, 2011.



ENDORSEMENT



[1]

The appellant, a self-represented litigant,
    appeals the judgment of Perell J. of the Superior Court of Justice dated
    January 27, 2011 granting summary judgment in favour of the respondent in a
    solicitors negligence action, thereby dismissing the appellants action.  In our view, the appeal must be dismissed.

[2]

The appellant claims that the properties in
    question were sold at depressed prices during power of sale proceedings through
    the negligence of the respondent solicitor, thereby preventing the appellant
    from recovering his investment in the properties.  However, as the motion judge indicated, the
    properties were sold in mid-February 2009 under power of sale by the first
    mortgagee.  The appellant knew of the
    power of sale proceedings from at least early June 2008 when the respondent solicitor
    provided him with a copy of the notice of sale.

[3]

Notwithstanding this knowledge, the appellant
    took no steps to contact the mortgagee to negotiate the protection of his
    interests or to acquire the right to step into the mortgagees shoes.  Importantly, from at least September 2008,
    the appellant was represented by litigation counsel (not the respondent).  He still took no steps in respect of the
    power of sale proceedings.

[4]

The appellant appears to be under the impression
    that if the respondent solicitor had registered a lien on the properties in
    question on his behalf, his interest would have been protected and the power of
    sale proceedings prevented.  This is
    incorrect.  The appellant had an
    unsecured investment in the properties in question.  On the record before the motion judge, there
    was no legal basis for the registration of a lien on the property in the
    appellants favour during the time that he was represented by the
    respondent.  In any event, to prevent the
    sale of the properties, the appellant would have been required to negotiate a
    pay-out of the debt owed to the first mortgagee.  There is no evidence that he was ever in a
    position to do so.

[5]

In all these circumstances, we agree with the
    motion judge that no genuine issue exists requiring a trial in respect of the
    respondent solicitors conduct.  It is
    most unfortunate that the appellant appears to have lost the entirety of his
    investment in the properties in question.  However, there is no basis in law to fix the respondent with
    responsibility for this loss.

[6]

The respondent shall have his costs of this
    appeal in the amount of $5,000, inclusive of disbursements and all applicable
    taxes.

M. J. Moldaver J.A.

E.A. Cronk J.A.

G. J. Epstein J.A.


