



COURT OF APPEAL FOR ONTARIO

CITATION:

Anastasiadis v. Vano, 2012
    ONCA 137

DATE: 20120301

DOCKET: C53629 and C53749

Winkler C.J.O., Laskin and Cronk JJ.A.

BETWEEN

Vasilios Anastasiadis

Plaintiff/Appellant

and

Steven Vano

Defendant/Respondent

Julie Amourgis, for the appellant

Bernard B. Gasee, for the respondent

Heard and released orally: February 27, 2012

On appeal from the orders of Justice J.B. Shaughnessy of
    the Superior Court of Justice, dated April 7, 2011, and the order of Justice
    M.L. Lack of the Superior Court of Justice, dated April 26, 2011.

ENDORSEMENT

[1]

The parties have a lengthy history of various real estate-related
    dealings.  The appellant claims that he has never received a proper or any
    accounting from the respondent  his former lawyer and mortgagee  regarding
    the proceeds of sale of at least two properties.  The appellants action
    seeking such an accounting, among other relief, has been set down for trial in
    Oshawa and is apparently scheduled to be spoken to in March or April of this
    year.  The appellants entitlement to an accounting or other relief from the
    respondent is therefore a matter that will be dealt with by the courts in the
    normal course.

[2]

The matter now before this court, however, relates to an agreement
    signed by the appellant on October 25, 2007 (the October Agreement) in respect
    of a third property situate in Whitby (the Fallstaff Property).  Under the
    October Agreement, the appellant agreed to make monthly payments in the amount
    of $2,500 commencing November 25, 2007 in exchange for occupancy of the
    Fallstaff Property, failing which he agreed to immediately vacate the premises. 
    In the same agreement, he acknowledged that the sum of $291,620.07 was owing to
    the registered owner of the Fallstaff Property, 1471423 Ontario Inc. (147
    Ontario), a company controlled by the respondent, in respect of mortgage funds
    advanced and/or secured against the Fallstaff Property.  There is also
    uncontradicted evidence that the appellant had recourse to independent legal
    and accounting advice when he signed the October Agreement.

[3]

The appellant acknowledges that he is in default under the October
    Agreement.  He has made no payments since October 2007 under the October Agreement. 
    Nor has he otherwise paid any funds to 147 Ontario or the respondent, or into
    court, regarding his occupancy of the Fallstaff Property.

[4]

In these circumstances, regardless of the state of accounts between the
    parties in relation to other transactions  a matter that will ultimately be
    tried  it was open to the motion judge to grant possession of the Fallstaff
    Property to 147 Ontario.  We also see no error in the subsequent decision of
    Lack J. of the Superior Court of Justice, dated April 26, 2011, refusing to set
    aside the possession order.

[5]

We acknowledge that the appellant alleges various procedural
    irregularities concerning the hearings before the motion judge and Lack J.  We
    are satisfied that sufficient notice of the April 7, 2011 possession
    application was provided to the appellant through his solicitor of record and
    his then new solicitor.  We are also persuaded that the materials necessary for
    the determination of the possession application were available to the court. 
    Further, we see no basis on which to interfere with Lack J.s decision to
    correct an inadvertent error in the formal version of the April 7, 2011
    possession order to ensure that the relief afforded thereunder was granted to
    the proper party in accordance with the style of proceedings.

[6]

Finally, during oral argument the appellant claimed that he entered into
    the October Agreement under duress and as a result of undue influence by the
    respondent.  This claim is untenable on the record before this court.

[7]

The appellant is an experienced real estate developer.  As we have
    already said, he had the benefit of independent legal and accounting advice
    when he entered into the October Agreement.  He took the benefit of that
    agreement without honouring his obligations under it.  He remains in default
    and in possession of the Fallstaff Property.  147 Ontario was therefore
    entitled to the relief granted.

[8]

For these reasons, the appeal is dismissed.  The respondent is entitled
    to his costs of the appeal, fixed in the amount of $20,000, inclusive of
    disbursements and all applicable taxes.

Winkler C.J.O.

John Laskin J.A.

E.A. Cronk J.A.


