



COURT OF APPEAL FOR ONTARIO

CITATION: Linderwood Holdings Inc. v. Armanasco, 2017 ONCA
    156

DATE: 20170222

DOCKET: C61960

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

Linderwood Holdings Inc., Angelo Sara,
and 2202463 Ontario Inc.

Applicants (Appellants)

and

Albino Armanasco

Respondent (Respondent in Appeal)

R.C.M. Belsito, for the appellants

Michael A. Katzman, for the respondent

Heard and released orally: February 16, 2017

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated March 7, 2016.

ENDORSEMENT

[1]

The appeal is from an order refusing to enjoin the sale of a development
    property under power of sale. Appellants counsel indicated at the outset that he
    was not seeking to have the court set aside the sale, or any other relief that
    would affect the rights of a third party, namely the purchaser of the property,
    who was neither a party to the proceedings, nor served.

[2]

The appellants challenge the application judges findings with respect
    to the absence of bad faith on the part of the respondent and say that the application
    judge erred by ignoring certain important evidence. The appeal is from the
    order of the application judge, not his findings. As such, it is not open to
    this court to grant the type of relief sought by the appellants, and described
    at paragraph 95 of their factum: that this court find the subject property was sold
    in bad faith and for an under value.

[3]

We agree with the respondents submission that what the appellant is
    seeking here, including the various types of damages in relation to the sale of
    the property, can be pursued in an improvident sale action (which was expressly
    left open by the application judge), and that it is not the proper role of this
    court to prejudge any issue in relation to that action.

[4]

As for costs, we would not interfere with the order which was made in
    the discretion of the court and in the absence of any error in legal principle.
    Although the respondents application was dismissed, the application judges
    observation that the heart of the dispute was the [appellants] intention to
    prevent [the respondent] from completing the power of sale was apt, and
    informed his decision to award full costs to the respondent in accordance with
    the language of the standard charge terms.

[5]

The appeal is therefore dismissed, with costs to the respondent fixed in
    the sum of $15,000, inclusive of disbursements and HST.

J. MacFarland J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.


