



COURT OF APPEAL FOR ONTARIO

CITATION: Ricciuto v. Somers, 2013
    ONCA 153

DATE: 20130314

DOCKET: C55496

Doherty, MacPherson and Watt JJ.A.

BETWEEN

Donald Ricciuto

Applicant (Appellant)

and

John W. Somers, Ballybock Enterprises Inc.,
    Elaine Ricciuto, Peter M. Callahan and Sheriff, Regional Municipality of Halton

Respondents (Respondents in Appeal)

Anser Farooq, for the appellant

P. Callahan, for the respondents

Heard and released orally: March 12, 2013

On appeal from the order of Justice Meredith Donohue of
    the Superior Court of Justice, dated April 19, 2012.

ENDORSEMENT

[1]

The appellant Donald Ricciuto appeals the judgment of Donohue J. of the
    Superior Court of Justice dated April 4, 2012 dismissing his application for,
inter
    alia
, a declaration that the respondent Peter Callahan, a lawyer, breached
    the deemed undertaking rule and shared information of a CIBC writ against the
    appellant with the respondent John Somers.  The appellant alleged that Ms.
    Somers improperly used this information in negotiating an assignment of the
    writ from CIBC to Mr. Somers company, Ballybock Enterprises Inc.

[2]

The assignment of CIBCs writ against the appellant to Somers took place
    on September 29, 2010.  The appellants position before the application judge
    was that Somers (the appellants father-in-law) and Callahan (the appellants
    wifes lawyer in matrimonial proceedings relating to a marriage breakdown) knew
    of the appellants debt to CIBC through the matrimonial litigation, i.e. before
    September 29, 2010.  More significantly, they were aware of the reduced amount
    that CIBC had indicated to the appellant it was prepared to accept in
    satisfaction of the debt.  The appellant claims that Somers used this
    information in acquiring the debt.

[3]

The application judge rejected this submission.  She referred to a
    chronology of events including:

10.     Mr. Somers through Ballybock purchased the writ   from
    CIBC by an assignment Sept. 29, 2010 and       ultimately registered the
    assignment with the        Sheriff in January 2011.

11.     In that intervening period a letter was sent by the    appellants
    former counsel Ms. Haber Dated         October 4, 2010 disclosing the CIBC Writ
    and the  Applicants Negotiations to settle that debt for a           reduced
    amount.

[4]

Against this factual backdrop, the motion judge concluded that the
    respondents had not breached the deemed undertaking rule, essentially for two
    reasons:

15.     Rule 30.1.05(5)(a) of the Rule on deemed     undertakings
    specifically does not prohibit the use   of evidence or any information for any
    purpose          that is filed with this court.

16.     On a review of the evidence and exhibits it is          certain
    that the purchase and assignment of the          Writ occurred before the
    correspondence of Ms.    Haber on October 4, 2010.

17.     I conclude therefore that the deemed undertaking   rule
    has not been offended and deny the relief        sought by the Applicant.

[5]

The appellant makes two submissions on the appeal.

[6]

First, the appellant contends that the trial judge erred in relying on
    evidence given by counsel (Mr. Callahan) during his submissions.

[7]

We do not accept this submission.  Although Mr. Callahan was a named
    respondent in the application, the appellant consented to his appearance as
    counsel.  Moreover, on our review of the record, to the extent that Mr.
    Callahans submissions went beyond the record on factual issues, they were not
    relied on by the application judge.

[8]

Second, the appellant submits that the application judge erred by
    finding that there was no breach of the deemed undertaking rule because the
    respondents were not aware of the information in the matrimonial proceeding
    before CIBC assigned its writ to Ballybock.

[9]

This was a factual finding made by the application judge.  In our view,
    there was sufficient material in both the Ricciuto and Somers affidavits to
    support her conclusion; in any event, it is far removed from being a palpable
    and overriding error.

[10]

The
    appeal is dismissed.

[11]

The
    cross-appeal is abandoned.

[12]

This
    is not a case for costs.  Although we appreciate that the respondent did not
    object to Mr. Callahan appearing as counsel either here or below, the reality
    is that he was a named respondent and that his conduct was central to the
    factual circumstances giving rise to both the application and this appeal.  He
    should not have appeared as counsel in either forum.

Doherty
    J.A.

J.C.
    MacPherson J.A.

David
    Watt J.A.


