





CITATION:
Tondera v. Vukadinovic, 2011 ONCA 596



DATE: 20110916



DOCKET: C53185



COURT OF APPEAL FOR ONTARIO



Goudge, Juriansz and MacFarland JJ.A.



BETWEEN



Michelle Alice Tondera and Maryon Tondera



Applicants/Appellants



and



Veselin Vukadinovic, Mihajlo (Mike) Milicevic and
Dorothy
          Ellyn Fox



Respondents



Vesna Vojvodic, for the applicants/appellants



Christine Fotopoulos and S. Jones, for the respondent Dorothy
          Ellyn Fox



Heard:
August 8, 2011



On appeal from the decision of Justice Katherine B. Corrick of
          the Superior Court of Justice dated December 13, 2010.



ENDORSEMENT



[1]

This
is an appeal from the decision of Corrick J. striking out the
    Amended Notice of Application as disclosing no reasonable cause of action.

[2]

None of the parties raised any objection to the fact that this matter
    proceeded at first instance as a Rule 21 motion and the applicability of Rule
    21 to an application was not put in issue before us.

[3]

The facts giving rise to this litigation are succinctly set out by the
    motions judge in paragraph 8 and 9 of her reasons:

[8]       The basic facts of this case are as
    follows.  In April 2003, the Tonderas each signed powers of attorney written in
    the Serbian language revoking their interest in their grandfathers property in
    the former Republic of Yugoslavia in favour of their grandmother, and providing
    their uncle, Veselin Vukadinovic (Veselin), with authority to deal with the
    property. They signed the documents in the presence of the respondent, Mihajlo
    (Mike) Milicevic. The face of the documents state that they were signed in the
    presence of Mihajlo Mike Milicevic. Below Mr. Milicevics signature appear the
    pre-printed words (in translation) Certified by:. Below those words is Ms.
    Foxs signature and below that are the pre-printed words (in translation)
    Notary Public, A Commissioner, etc. Finally, below that are the words Dorothy
    E. Fox, Barrister & Solicitor. Ms. Foxs embossed notarial seal is also on
    the document.

[9]       The Tonderas do not speak or read the
    Serbian language. They believed that they signed powers of attorney to
    authorize Veselin to manage the property. They did not know they were
    relinquishing their interest in the property.  In 2008, they discovered that
    they no longer had an interest in the property and that it had been transferred
    to Veselin, who had granted an interest in it to a company in exchange for an
    interest in certain other properties.

[4]

On the motion before her she concluded in paragraphs 7 and 16:

In my view, the amended application discloses no
    reasonable cause of action against Ms. Fox. The amended application fails to establish
    a relationship of sufficient proximity between the Tonderas and Ms. Fox that
    would give rise to a duty of care to the Tonderas on the part of Ms. Fox.



I do not accept the submissions of Ms. Vojvodic
    regarding the duties of a notary public in Ontario.  The cases Ms. Vojvodic
    refers to in support of her submission deal with notaries public subject to
    duties prescribed by statute.  Notaries public in Ontario are bound by the
Notaries
    Act
,
supra
, which does not prescribe the duties that Ms. Vojvodic
    submits should be attributed to Ms. Fox.

[5]

In a Rule 21 motion the facts pleaded are taken as true and provable for
    the purpose of the motion.

[6]

The relevant subparagraphs of Paragraph 2 of the Amended Notice of
    Application read:

(q)       The 2003 Documents
    would not have been effective to convey a legal interest in the Montenegro
    property unless they were signed in front of a barrister and solicitor who was
    an accredited notary for documents in the country where the document is being
    signed and the signature of such barrister and solicitor deposited with the
    consulate of the Federal Republic of Yugoslavia.

(r)        Prior to notarizing a document which
    would have legal effect in the former Federal Republic of Yugoslavia and in
    Canada, the notary is required to ensure that the signatories understand the
    nature and effect of the document and that they are signing it of their own
    free will.



(t)        Fox has her signature deposited with the
    Consulate of the Federal Republic of Yugoslavia and is one of the accredited
    notaries for documents to be used in the Federal Republic of Yugoslavia.

(u)       Fox was not in fact present when Michelle
    and Maryon signed the 2003 Documents.  By having applied her signature and
    notarial seal to these documents, Fox gave the 2003 Documents the false
    appearance of being duly executed legal documents, capable of being further
    legalized by the Consulate of the Federal Republic of Yugoslavia.

(v)       Fox notarized the signatures without
    having seen the 2003 Documents being signed in her presence and without having
    satisfied herself that each person signing her/his document was aware of its
    nature and contents and each person was signing it voluntarily and was not
    subjected to any coercion, pressure or intimidation.

[7]

While not a model pleading the gist of the appellants argument is
    apparent.  They submit that Fox knew that the presence of her signature on the
    document would cause the authorities in the Federal Republic of Yugoslavia to
    accept that the document was signed in her presence and therefore give it legal
    effect.  In these unique circumstances, they say Fox owed them a duty of care both
    to have them sign in her presence and to insure that they understood the
    document.  Both arguments rest on the common law of negligence and not just the
Notaries Act
. The appellants allege Fox breached both duties and caused
    them harm.

[8]

The factual dispute about whose signature(s) Fox was appearing to
    certify is a matter requiring resolution.  On its face, the document is
    ambiguous.  Evidence will be required to resolve this.  Indeed a trial may be
    required.  The result may well be that by notarizing the document, Fox was representing
    that the appellants signed in her presence and understood the document.

[9]

We cannot say, in these particular circumstances that there can be no
    duty of care owed by Fox to the appellants when she affixed her signature as a
    notary to the document in their absence, knowing the legal effect her signature
    would carry in the Federal Republic of Yugoslavia and without enduring their
    understanding.  In our view, it is not plain and obvious that the appellants
    cannot succeed.

[10]

The appeal is allowed and the order of Corrick J. is set aside. The
    appellant should have their costs here and below.

[11]

Corrick J. fixed costs below in the all inclusive sum of $35,402.40 and
    noted in her endorsement dealing with costs that the appellants in this court
    had sought costs before her in the sum of $49,600. In our view, the sum of
    $35,000 inclusive of disbursements and HST is a reasonable sum for the costs
    below and we would award that sum to the appellants for their costs before
    Corrick J. In addition, the appellants are entitled to their costs of the
    appeal fixed in the sum of $15,000 also inclusive of disbursements and HST.

S.T. Goudge J.A.

R.G. Juriansz J.A.

J. MacFarland J.A.


