



COURT OF APPEAL FOR ONTARIO

CITATION: Mammone v. Mammone, 2017 ONCA 18

DATE: 20170112

DOCKET: C62217

Strathy C.J.O., MacPherson and Hourigan JJ.A.

BETWEEN

Laura Mammone, Antonio Mammone and Daniele
    Mammone, Estate Trustees of the Estate of Frank Mammone

Applicants (Respondents)

and

Emilio Mammone and Density Garden Enterprises
    Inc.

Respondents (Appellants)

Allan Rouben, for the appellants

Alastair J. McNish, for the respondents

Heard: January 9, 2017

On appeal from the judgment of Justice Grant R. Dow of
    the Superior Court of Justice, dated May 25, 2016, with reasons reported at
    2016 ONSC 2681.

ENDORSEMENT

[1]

The appellants appeal from the judgment of Dow J. of the Superior Court
    of Justice dated May 25, 2016. In the judgment, the application judge granted
    the respondents application for the sale of two properties owned jointly by
    the two Mammone brothers, Emilio and the deceased Frank.

[2]

Emilio resisted the sale on the basis that Frank, prior to his death,
    had agreed to sell his interest in the two properties to Emilio for $110,000.
    The application judge rejected this position. Applying s. 13 of the
Evidence
    Act
, R.S.O. 1990, c.E. 23, and s. 4 of the
Statute of Frauds
,
    R.S.O. 1990, c.S. 19, he held there is no evidence directly from Frank Mammone
    that he had agreed to complete this transaction and Emilios actions at the
    relevant times did not demonstrate part performance.

[3]

The appellants challenge these conclusions on this appeal. They contend
    that his conclusion on the
Evidence Act
s. 13 issue is inconsistent
    with this courts decision in
Burns Estate v. Mellon
(2000), 48 O.R.
    (3d) 641. They also submit that the application judges analysis and conclusion
    on the
Statute of Frauds
part performance issue are inconsistent with
    this courts analysis in
Erie Sand and Gravel Ltd. v. Seres Farms Ltd.
(2010), 97 O.R. (3d) 241.

[4]

We do not accept these submissions. The application judge explicitly
    applied
Burns Estate
and
Erie Sand
to the fact situation
    before him. He accurately stated the governing legal principles from these
    cases and then engaged in a careful identification and analysis of the key
    facts that needed to be considered under the umbrella of these principles. In
    an appeal where the alleged errors are properly characterized as questions of
    mixed fact and law, but tilted to the fact end of the spectrum, we cannot say
    that the application judges conclusion comes anywhere close to being a
    palpable and overriding error.

[5]

Crucially, as the application judge noted, the evidence relating to the
    actions and testimony of Emilios and Franks lawyers at the relevant time
    simply does not support a conclusion that the brothers had reached an agreement
    that Frank would sell his interest in the two properties to Emilio for
    $110,000. Emilios lawyers letter to Franks lawyer talked about a change in
    mortgage obligations; it did not confirm an agreement to sell or a price and it
    sought advice from Franks lawyer on how you wish to proceed. Franks
    lawyers affidavit, responding to questions posed by Emilio, was: To the best
    of my knowledge, I do not recall any agreement to transfer Frank Mammones
    interest in two rental properties to Emilio Mammone.

[6]

The appeal is dismissed. The respondents are entitled to their costs of
    the appeal fixed at $15,000 inclusive of disbursements and HST.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

C.W. Hourigan J.A.


