



COURT OF APPEAL FOR ONTARIO

CITATION: Pichelli v. Adair Barristers LLP, 2019 ONCA 843

DATE: 20191024

DOCKET: C66529

Tulloch, Hourigan and Benotto JJ.A.

BETWEEN

Peter Pichelli, Todd Leslie, Frank Toth and

958041 Ontario Limited

Appellants

and

Adair
    Barristers LLP, Geoffrey D.E. Adair,

and
Tracy Adair

Respondent

Douglas Cunningham, for the appellants

David Steinberg, for the respondent Tracy Adair

Heard and released orally: October 15, 2019

On appeal from the
    judgment of Justice Lemay of the Superior Court of Justice, dated January 8,
    2019.

REASONS FOR DECISION

[1]

The respondent is the assignee of a debt alleged to be owed to her
    husband for his legal services provided in litigation related to the development
    of certain real property. The respondent registered a mortgage on the property
    to secure the debt. The appellants claim beneficial ownership interests in the
    property.

[2]

The appellants position is that the respondent could not validly
    register the mortgage because there was no evidence that a debt was owed to her
    husband. As a result of the lack of an established debt, the appellants submit
    that, based on unjust enrichment and misrepresentation on title, the respondent
    is not entitled to receive the monies secured by the mortgage on a sale of the
    property.

[3]

We do not accept this submission. The motion judge found that there was
    a debt owing. This finding was supported by the testimony of the respondents
    husband, and by the fact that the property owner consented to the registration
    of the mortgage. We note that an appeal against the respondents husband was
    not pursued.

[4]

Moreover, any beneficial ownership by the appellants would arise by way
    of trust. Even where an owner of land is described as a trustee, pursuant to s.
    62(2) of the
Land Titles Act
, R.S.O.
    c. L.5,
absent a caution on title, a party may deal with the
    registered owner without inquiring as to the owners power to grant a charge
    against title. The respondent is a
bona fide
purchaser for value with a registered
    interest in the property; her interest trumps any unregistered interest of the
    appellants in the property that pre-existed the granting of the mortgage:

Di Michele v. Di. Michele
, 2014 ONCA 261, 319 O.A.C. 72, at para. 107.

[5]

There is also no basis for a claim of unjust enrichment. There is a juristic
    reason for the benefit the respondent received. Her husband validly assigned to
    her the debt.

[6]

For these reasons, we dismiss the appeal, with costs fixed in the all-inclusive
    amount of $12,000 to the respondent.

M. Tulloch
    J.A.

C.W. Hourigan
    J.A.

M.L. Benotto
    J.A.


