Ricciuto v. Somers, 2013 ONCA 153 (CanLII)

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

1. 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 CIBC’s writ against the appellant to Somers took place on September 29, 2010.  The appellant’s position before the application judge was that Somers (the appellant’s father-in-law) and Callahan (the appellant’s wife’s lawyer in matrimonial proceedings relating to a marriage breakdown) knew of the appellant’s 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    appellant’s former counsel Ms. Haber Dated         October 4, 2010 disclosing the CIBC Writ and the Applicant’s 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. Callahan’s 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.

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