Moranis (Sadie) Realty Corp. v. 1667038 Ontario Inc. et al., (2012) 294 O.A.C. 308 (CA)

• Judge: Laskin, Goudge and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 13, 2012
• Jurisdiction: Ontario
• Citations: (2012), 294 O.A.C. 308 (CA);2012 ONCA 475

Moranis Realty Corp. v. 1667038 Ont. (2012), 294 O.A.C. 308 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JL.029

Sadie Moranis Realty Corporation (plaintiff/appellant) v. 1667038 Ontario Inc. and George B. Callahan (defendants/respondents)

(C53832; 2012 ONCA 475)

Indexed As: Moranis (Sadie) Realty Corp. v. 1667038 Ontario Inc. et al.

Ontario Court of Appeal

Laskin, Goudge and Rouleau, JJ.A.

July 5, 2012.

Summary:

The plaintiff sued the defendants (a numbered company and its counsel) for an unpaid commission following a real estate transaction. The plaintiff moved for an order requiring the counsel to pay into court the proceeds of the sale remaining in trust pending the outcome of the action.

A Master of the Ontario Superior Court of Justice allowed the motion with costs of $20,000. The defendants appealed.

The Ontario Superior Court of Justice dismissed the appeal. The defendants appealed.

The Ontario Divisional Court, in a decision not reported in this series of reports, allowed the appeal. The plaintiff appealed, with leave.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 3274

Payment of money into court - When available - Pending trial of action - [See Practice - Topic 3377 ].

Practice - Topic 3377

Interim proceedings - Preservation of property - When order for preservation of property available - The plaintiff sued the defendants (a numbered company and its counsel) for an unpaid commission following a real estate transaction - The plaintiff moved under rule 45.02 (Ont. Rules of Civil Procedure) for an order requiring the counsel to pay into court the proceeds of the sale remaining in trust pending the outcome of the action - A Master found that it was not necessary that the plaintiff have a proprietary claim to succeed - She held that the words of the Listing Agreement were capable of establishing a term that the commission be paid out of the proceeds of the sale - The Master also found that, although the plaintiff did not plead trust principles, the record supported the plaintiff's claim to the monies in trust on the basis of constructive trust - On appeal, the Superior Court judge upheld the order - On further appeal, the Divisional Court held that both the judge and the Master erred in finding that a plaintiff did not need to establish a proprietary claim to a specific fund in order to obtain relief under rule 45.02 - The court found that the plaintiff's claim was framed as a breach of the Listing Agreement - In the absence of a proprietary claim, the court ordered that the rule 45.02 motion and the costs orders below be dismissed - The Ontario Court of Appeal dismissed the plaintiff's appeal - While the monies held in trust were in an identifiable fund, the plaintiff did not claim a legal right to that specific fund in this litigation - The plaintiff's claim was for breach of contract because of the vendor's failure to pay the commission in accordance with the Listing Agreement - That agreement provided for the payment of the commission on closing and for the application of the deposit to that commission - Importantly, it did not provide for the commission to be paid out of the proceeds of the sale - In finding that the words of the Listing Agreement were capable of giving the plaintiff such a right, the Master was in error - The Master also erred in finding that the plaintiff could claim a right to the monies in trust on the basis of trust principles.

Cases Noticed:

News Canada Marketing Inc. v. TD Securities Inc., [2000] O.T.C. Uned. 985 (Sup. Ct.), folld. [para. 18].

Assante Financial Management Ltd. v. Dixon et al., [2004] O.T.C. 452; 8 C.P.C.(6th) 57 (Sup. Ct.), refd to. [para. 21].

Statutes Noticed:

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 45.02 [para. 2].

Authors and Works Noticed:

Sharpe, J.A., Injunctions and Specific Performance (3rd Ed. 2012) (Looseleaf), para. 2.760 [para. 17].

Counsel:

Kirkor Apel, for the appellant;

Trent Morris, for the respondents.

This appeal was heard on April 13, 2012, by Laskin, Goudge and Rouleau, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Goudge, J.A., on July 5, 2012.