



COURT OF APPEAL FOR ONTARIO

CITATION:
Cosford v. Player, 2012
    ONCA 276

DATE: 20120501

DOCKET: C54077

Juriansz, LaForme and Ducharme JJ.A.

BETWEEN

Brian Cosford

Appellant

and

William Player, David Allport, Thomas Ambeau,
    John Wright, 24 North Street Inc., Jean Carberry, 1207228 Ontario Inc., &
1442968
    Ontario Limited

Respondent

John D. Bonn, for the appellant

Jeffrey W. Kramer and Saroja Kuruganty, for the
    respondent

Heard:  April 19, 2012

On appeal from the judgment of Justice Gary W. Tranmer of
    the Superior Court of Justice, dated June 24, 2011.

BY THE
    COURT:

A.

OVERVIEW

[1]      This is an appeal from the decision of Tranmer
    J. granting the motion by the respondent 1442968 Ontario Limited for summary
    judgment. At the end of oral argument, we advised counsel that the appeal would
    be dismissed with brief reasons to follow. Here now are those reasons.

[2]      In
Combined Air Mechanical Services Inc.
    v. Flesch
, 2011 ONCA 764, this court has recently undertaken a
    comprehensive review of Rule 20 and of the new test to be applied by the motion
    judge in deciding when to exercise the new powers under Rule 20. Still, the
    standard of review remains the same: the determination of whether there is a
    genuine issue requiring trial is a legal question, and will be reviewed on a
    standard of correctness.

[3]     Further, any factual determinations by the
    motion judge in deciding the motion are reviewed on the deferential standard of
    palpable and overriding error. There are no categories of claims that should
    not be decided in a motion for summary judgment.

B.      THE FACTUAL CONTEXT

[4]      In this case, the appellants claim against
    the respondent is founded in tort. Although seven other defendants are named in
    the action, against whom a number of allegations are made, including fraud, the
    respondent is alleged to have made a negligent representation in a deed
    registered on title in connection with a property municipally known as 24 North Street, in Barrie, Ontario.

[5]      In that transaction, which occurred on August
    20, 2002, the respondent transferred the property at 24 North Street to another
    corporation, 24 North Street Inc.. This latter Corporation, and the person who
    apparently controlled it, William Player, are among the other defendants in the
    action. The impugned deed discloses that the consideration for the sale of 24 North Street was $1,400,000.

[6]      The appellant was not involved in the
    respondent's sale of the property to 24 North Street Inc. There were no
    business dealings of any kind between the appellant and the respondent.

[7]      In January 2003, approximately 6 months after
    the sale of the property by the respondent to 24 North Street Inc., the appellant
    loaned $335,000 to 24 North Street Inc., to be secured by a second mortgage on
    the property. In advancing the funds, the appellant understood that his
    mortgage was second in priority to the mortgage held by Laurentian Bank of Canada. On May 2, 2003, the Laurentian Bank mortgage was in default, and the bank issued
    Notice of Sale.

[8]      Eventually, on December 21, 2004, by Court
    Order, the property sold for $805,000. After the costs associated with the
    sale, the payout of the first mortgage, and his solicitor's fees, the appellant
    received $7663.78 from his initial advance of $335,000.

C
.
THE MOTION JUDGES ANALYSIS OF THE
    RELEVANT FACTS

[9]      The motion judge fully appreciated the five
    requirements of proof required to establish the tort of negligent
    representation as set out in the case of the
Queen v. Cognos Inc
.
,
    [1993] 1 S.C.R. 87, at para. 34.

[10]    Applying that test on the Rule 20 motion for
    summary judgment, the motion judge noted correctly the special relevance of the
    fourth criterion: the representee must have relied, in a reasonable manner, on
    said negligent misrepresentation.

[11]    On this question of reliance, reasonable
    reliance, the motion judge carefully reviewed the appellants evidence given on
    his examination for discovery, as well as the evidence of the appellants then
    lawyer, Jean Carberry, now also a defendant in the action. The motion judge was
    also alive to and fully appreciated the nature of the tortious conduct alleged
    against this respondent, as distinct from the other and more wide-ranging
    allegations against the other defendants.

[12]    The motion judge then made clear findings of
    fact as between these two parties, including the following:

(1) the appellant did not look
    at the deed containing the alleged negligent misrepresentation, though his
    lawyer did;

(2) the appellant did not rely
    upon the respondents representation when he decided to advance monies on the
    property;

(3) the representation made
    by the respondent on the deed was that the consideration for the sale of the
    property was $1.4 million;

(4) the lawyer representing
    the appellant in the transaction took from the deed that the value of the
    property was $1.4 million;

(5) the lawyer representing
    the appellant in the transaction prepared a document titled Investment
    Authority signed by the appellant which read, in part, that the approximate
    value of the property was $1.4 million;

(6) in the Investment
    Authority, the appellant instructed the lawyer not to obtain a current and
    independent appraisal of the property, and agreed that, in any event, the
    responsibility for assessing the financial merits of the mortgage investment
    rested with him.

D.      SUMMARY AND CONCLUSION

[13]    On this record, we are satisfied that the
    motion judge exercised correctly the powers in Rule 20.04 (2.1). At least
    implicitly, he asked and answered affirmatively the essential question: Can
    the full appreciation of the evidence and issues that is required to make
    dispositive findings be achieved by way of summary judgment?

[14]    The instant case is not one such as the
Mauldin

group action and the
Bruno
action analyzed at length within
Combined
    Air Mechanical Services Inc
. Unlike in those cases, the record here was
    not voluminous; the motion raised only two narrow issues; and only a discrete
    number of findings of fact were required to decide the motion.

[15]    On the record before him, the motion judge had
    ample evidence to conclude that there was no genuine issue requiring the trial
    in regard to the appellants claim against the respondent based upon negligent
    representation. In light of that conclusion, the motion judge also correctly found
    that he did not have to decide the issue raised by the respondent in the Rule
    21 motion.

[16]    Accordingly, the appeal is dismissed with
    costs. By agreement of counsel, the respondents costs are fixed in the sum of
    $10,000, inclusive of disbursements and applicable taxes.

Released:  May 1, 2012  RGJ

R.G.
    Juriansz J.A.


H.S. LaForme J.A.

E.W.
    Ducharme J.A.


