



COURT OF APPEAL FOR ONTARIO

CITATION: Wade v. Ukeni, 2014 ONCA 99

DATE: 20140204

DOCKET: C56464

Laskin, van Rensburg and Hourigan JJ.A.

BETWEEN

Julianne Leah Wade

Applicant (Appellant)

and

Marcus Emejeror Ukeni

Respondent (Respondent in Appeal)

Gary S. Joseph and Kim Stock, for the appellant

Charles Baker, for the respondent

Heard and released orally:  January 31, 2014

On appeal from the order of Justice John R. McCarthy of
    the Superior Court of Justice, dated December 7, 2012.

ENDORSEMENT

[1]

The appeal is dismissed.

[2]

We are not satisfied that the appellants right to cross-examine was
    interfered with by the trial judge. The appellants decision not to produce a
    document was a breach of the trial management judges order. Thus, we see no
    error in the trial judges decision to refuse to permit the appellant to
    cross-examine the respondent on this document. The appellant has not
    established any trial unfairness.

[3]

We also reject the submission that the trial judges reasons were
    inadequate. He dealt with the legal issues raised by the parties and assessed
    the credibility of the witnesses. In our view, he provided a properly reasoned
    legal basis for his decision to dismiss the appellants claims.

[4]

Further, we see no error in the trial judges conclusion that there was
    no resulting trust, given his finding that there was consideration provided for
    the transfer of the Clearmeadow property. That finding was open to him to make
    as the appellant was being released from the mortgage.

[5]

There was also no error in the trial judges conclusion that the remedy
    of a constructive trust was not available. We agree with his finding that the
    appellant failed to establish any unjust enrichment. He found that there was no
    enrichment and no corresponding deprivation, as the appellant did not
    contribute disproportionately to the upkeep of the property. There was also a
    juristic reason for any benefit, namely the agreement between the parties for
    the transfer of the Clearmeadow property.

[6]

With respect to the monies alleged to be owing by the respondent to the
    appellant, the trial judge based his decision on factual findings that were
    open to him to make on the evidence before him.  We see no basis to interfere
    with those findings or with his conclusion regarding the claim for money
    advanced.

[7]

Finally, the trial judge considered the evidence regarding the
    respondents breaches of a court order.  He accepted the respondents apology
    and concluded that this conduct did not affect his assessment of the
    respondents credibility. That was a finding that was open to the trial judge
    to make.

[8]

The appeal is dismissed. The respondent is entitled to his costs which are
    fixed at $7,500 inclusive of disbursements and HST.

John Laskin J.A.

K. van Rensburg J.A.

C.W. Hourigan J.A.


