



COURT OF APPEAL FOR ONTARIO

CITATION: Leger v. Tittarelli, 2013 ONCA 613

DATE: 20131010

DOCKET: C56201

Gillese, Juriansz and Strathy JJ.A.

BETWEEN

Dennis Leger

Applicant (Appellant)

and

Joseph Tittarelli

Respondent (Respondent)

W. Graydon Sheppard, for the appellant

Michael Bordin, for the respondent

Heard and released orally: September 27, 2013

On appeal from the judgment of Justice David Samuel Crane
    of the Superior Court of Justice, dated September 19, 2012.

ENDORSEMENT

[1]

The appellant appeals against a judgment granted, after a trial of
    issues, determining that a real estate partnership between the parties was
    never dissolved and that the respondent was entitled to an accounting of the partnership.
    In coming to these conclusions, the trial judge held that the respondents
    right to an accounting was not time-barred.

[2]

In determining these issues, the trial judge made findings of fact on
    the basis of the conflicting affidavit and
viva voce
evidence. In
    particular, he found that the respondent held legal title to the property in
    trust for the partnership and that the appellants entitlement to a transfer was
    subject to an accounting of their contributions to the partnership. Any
    resolution of the appellants claim to a vesting order would have to await that
    accounting.

[3]

The trial judges findings on these issues are supported by the evidence
    and the appellant has identified no palpable or over-riding error that would
    warrant this courts intervention.

[4]

We would not give effect to the appellants submission that the
    respondents claim for unpaid debts was not properly before the court. The
    order directing a trial of the issues provided that the parties affidavits
    were to be treated as pleadings. The issue was squarely raised in the
    respondents affidavit sworn April 14, 2008, at paras. 14, 15, 24-27.

[5]

Nor do we agree that the trial judge erred in finding that the equitable
    doctrine of
laches
did not apply. Neither party took steps to obtain an
    accounting, but both made efforts to resolve their outstanding obligations. In
    light of the trial judges conclusion that the partnership had not been
    dissolved, and was continuing, the parties remained fiduciaries and each had an
    obligation to account. There is nothing inequitable in the circumstances in
    requiring them to do so.

[6]

I will add that we do not agree with the submission of the appellants
    counsel that the judgment for an accounting is one-sided or confined to the appellants
    obligation to account. In any case, that issue is properly a matter to be
    raised on a motion for directions under para. 4 of the judgment under appeal.

[7]

For these reasons, the appeal is dismissed, with costs fixed at $10,000
    all-inclusive.

E.E. Gillese
    J.A.

R. Juriansz J.A.

G.R. Strathy J.A.


