



COURT OF APPEAL FOR ONTARIO

CITATION:
Besharah v. Saikaley, 2012
    ONCA 214

DATE: 20120403

DOCKET: C53405

Sharpe, Armstrong and Rouleau JJ.A.

BETWEEN

Joseph Besharah

Plaintiff (Appellant)

and

Philip Saikaley, Najat Saikaley and Robert
    Saikaley

Defendants (Respondents)

Peter K. Doody and Jack Hughes, for the plaintiff
    (appellant)

Craig M. Bater, for the defendants (respondents)

Heard: March 26, 2012

On appeal from the judgment of Justice Martin S. James of
    the Superior Court of Justice, dated February 7, 2011, with reasons reported at
    2011 ONSC 616.

ENDORSEMENT

[1]

This appeal involves a dispute over the profits made by the respondent
    Philip Saikaley from the purchase and resale of a recreational property.
    Saikaley saw that an island near his own cottage was for sale. He negotiated an
    agreement to purchase the island for $120,000, conditional on obtaining
    financing. When the appellant Besharah visited Saikaleys cottage, Saikaley
    pointed out the island and indicated that it was for sale. Besharah decided
    that he wanted to buy the island and to offer $200,000. Saikaley agreed to
    present that offer to the vendor. There was a conflict in the evidence as to
    the discussions between the parties, but it is clear that Saikaley did not
    disclose that he had negotiated a conditional agreement to purchase the
    property. Saikaley waived the financing condition on his agreement to purchase
    the island and told Besharah that his offer had been accepted. However, the
    trial judge found that shortly thereafter, Besharah changed his mind and told
    Saikaley that he wanted to end the transaction. Saikaley subsequently re-sold
    the island without any involvement from Besharah for $235,000 and a profit of
    $115,000 less expenses.

[2]

Besharahs claim as pleaded and as presented at trial was for a 50%
    share of these profits. Besharah claimed that he had agreed with Saikaley to
    jointly purchase and market the island after Besharah decided not to purchase
    it on his own. Saikaley testified that there was no such agreement. The trial
    judge accepted Saikaleys evidence, rejected that of Besharah and found that
    there was no agreement. While Besharahs trial counsel made reference to a
    claim for breach of trust in his closing submissions, no claim for breach of
    fiduciary duty was pleaded or advanced at trial.

[3]

On appeal, Besharah does not challenge the finding that there was no
    agreement to share the profits but alleges breach of fiduciary duty and asserts
    a claim that Saikaley be required to disgorge 100% of the profits.

[4]

We are of the view that the appeal must be dismissed for the following
    reasons.

[5]

First, breach of fiduciary duty was not pleaded. Accordingly, the trial
    judge was not asked to make the crucial findings of fact necessary to sustain
    that claim. In our view, it is simply too late for Besharah to alter the theory
    and nature of his claim at this stage. In particular, we note that there was
    conflicting evidence from Besharah and Saikaley as to what was said and
    discussed before Besharah instructed Saikaley to offer to purchase the island.
    The trial judge recited their differing versions of the events at paras. 10-13
    of his reasons. He held, quite understandably, that it was not necessary for
    him to resolve those differences as the claim turned on whether or not the
    parties had made a subsequent agreement to jointly develop the property and
    share the proceeds.

[6]

On this record, it is not open to us on appeal to effectively retry the
    case and make the findings Besharah asks us to make in support of his
    late-blooming claim for breach of fiduciary duty.

[7]

Second, we do not accept the submission that the conclusion that
    Saikaley was Besharahs agent or owed Besharah fiduciary duties necessarily
    flows from the trial judges findings and from Saikaleys own evidence.
    Saikaley was not a real estate agent. The trial judge did not find that he
    undertook anything more than to convey Besharahs offer to the vendor. There
    was no finding that Saikaley told Besharah what to offer. Nor did the trial
    judge find that Saikaley had the power to negotiate with the vendor on Besharahs
    behalf. The finding that Saikaley was authorized to convey the offer to the
    vendor, on its own, does not give rise to a full agency relationship.

[8]

We certainly do not condone Saikaleys deceptive conduct which could
    well have given rise to a claim by Besharah had he closed the transaction.
    However, we are not persuaded on the record we have that Saikaleys conduct
    placed him in a fiduciary relationship or gave rise to fiduciary duties in
    relation to the purchase of the island.

[9]

Finally, we note that Saikaley had acquired his interest in the island
before
he had any dealings on it with Besharah and that he resold the island at a
    profit
after
Besharah had repudiated his agreement to purchase the
    island. On those facts, it is difficult to see how Besharahs repudiated
    agreement to purchase the island had a sufficient nexus or connection the
    profits made by Saikaley to support a claim in equity for 100% of those
    profits.

[10]

Accordingly, the appeal is dismissed with cost to the
    respondent fixed at $19,076.77 inclusive of disbursements and HST.

Robert J. Sharpe J.A.

R.P. Armstrong J.A.

Paul Rouleau J.A.


