



COURT OF APPEAL FOR ONTARIO

CITATION: Nizic v. Petrovic, 2016 ONCA 340

DATE: 20160504

DOCKET: C59449

Laskin, Pepall and Brown JJ.A.

BETWEEN

Blago Nizic

Plaintiff (Respondent)

and

Zdravko Petrovic and The Toronto-Dominion Bank

Defendants (Appellants)

Glenroy Bastien, for the appellants

James Smith, for the respondent

Heard: April 29, 2016

On appeal from the judgment of Justice Antonio Skarica of
    the Superior Court of Justice, dated September 12, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The appellant Petrovic makes four submissions:

1.

He submits that
    the contract is unenforceable under section 4 of the
Statute of Fraud
s
    because it is not in writing. He contends that though the trial judge stated
    the test correctly, he did not apply it correctly. We disagree with this
    submission. The trial judge found part performance, which took the case out of
    section 4. We agree with his finding.

2.

The appellant
    submits that the contract was void for illegality because its purpose was to
    avoid capital gains tax. The trial judge found otherwise, and we agree with his
    finding. The contract was not illegal on its face. Capital gains may be payable
    on disposition, which has not yet occurred. This is not one of those cases in
    which the professed purpose of the contract could give rise to illegality.

3.

The appellant
    submits that there was an intention to avoid land transfer tax on the Bearwood
    property. Even if true, it is irrelevant to the dealings between the two
    parties to this appeal in respect of the condominium.

4.

Finally, the
    appellant submits that the trial judge erred in failing to apply the
Limitations
    Act
to reduce the amount owing in paragraph 5 of the judgment. We do not
    accept this submission. As the trial judge noted, the appellant did not raise
    the
Limitations Act
in his affidavit and we agree with the trial
    judges analysis of this issue.

[2]

Accordingly, the appeal is dismissed with costs to the respondent fixed
    at $9,500, all in.


