Ont. Court of Appeal stays judgment in partition and sale case of residence involving three brothers

The Ontario Court of Appeal allowed an appeal of a trial judge’s decision partly granting a partition and sale application in a dispute arising from lengthy litigation among three brothers who had jointly owned a residential investment property since 1988. 

In Rosso v. Rosso, 2025 ONCA 822, the parties agreed that a February 2019 oral agreement sought to facilitate the sale of Bruno’s one-third interest in the property to his brothers Domenic and Salvatore. However, they differed over this agreement’s details and enforceability. 

Before the Ontario Superior Court of Justice, Domenic and Bruno filed competing applications. First, Domenic brought a contractual breach application. He requested a declaration that the oral agreement was valid and a specific performance order to enforce the sale of Bruno’s interest. 

Next, Bruno filed an application seeking a partition and sale, with the net proceeds divided equally among the brothers. Bruno also sought an order for an accounting of rent and insurance funds Domenic had received for the property since 1992, as well as a corresponding order granting Bruno a third of those proceeds.

A trial judge consolidated and heard Domenic and Bruno’s competing applications. She dismissed Domenic’s contractual breach application and partly granted Bruno’s partition and sale application. She issued orders for: 

• the listing of the property for sale under Ontario’s Partition Act, 1990 
• specific directions addressed to the parties for the property sale 
• payment of the net sale proceeds to the court, subject to further order 
• an associate judge’s ongoing supervision to effect the sale 
• Domenic’s accounting for rents and insurance funds received from 1992 to the present 
• costs in favour of Bruno and Salvatore 

In a notice of appeal, Domenic challenged the judge’s orders and the dismissal of the contractual breach application. He brought three motions, which sought to: 

1. Transfer the appeal to the Divisional Court 
2. Extend the time to perfect the appeal 
3. Stay the trial judge’s judgment pending appeal 

Judgment stayed

The Court of Appeal for Ontario dismissed the first motion to transfer the appeal to the Divisional Court, granted the second motion to extend the time to perfect the appeal, and granted the third motion to stay the judgment pending appeal. 

In dismissing the first motion, the appeal court instead granted an order to combine the appeals of both applications and hear them together. The appeal court saw an overlap between the appeals’ issues and an interrelation among their final and interlocutory aspects. 

The appeal court ruled that joining the appeals would better serve the administration of justice, prevent a risk of inconsistent results, and be expeditious, less expensive, and non-prejudicial to the parties. 

In connection with the successful second motion, the appeal court ordered Domenic to perfect the appeal within a specified time. The appeal court held that the appeal might have merit and that the delay was neither overly long nor prejudicial. 

According to the appeal court, while Domenic had intended to appeal within the relevant period, he failed to do so because he needed to hire new counsel and felt uncertain about the appropriate forum. 

The appeal court noted that Domenic continued to prepare for the appeal and produced draft documents, served on the other parties on Nov. 17. 

Regarding the successful third motion, the appeal court found that the interests of justice supported the requested stay. The appeal court saw serious issues in the combined appeals concerning the trial judge’s alleged: 

• possible use of another judge’s credibility findings against Domenic in a prior proceeding 
• findings regarding a $300,000 payment Domenic had made and a $50,000 loan he had allegedly issued to Bruno 
• failure to consider the application of the limitation period in requiring Domenic to account for rents and insurance funds from 1992 until the property sale’s closing 

The appeal court stated that staying the order’s balance could spare costs and inconvenience. Specifically, the appeal court found that: 

• A property sale pending appeal could lead to irreparable harm, given the emotional attachment of Domenic’s family to the property as their long-time home 
• Proceeding with the costs and labour for settling the setoffs against the sale proceeds would be wasteful if the court would later set aside the partition and sale order 
• Accounting for rents and insurance funds received would also be wasteful if the appeal regarding the limitation defence succeeded