Court File and Parties

COURT OF APPEAL FOR ONTARIO

2012 ONCA 154

DATE: 20120309

DOCKET: C53145

Winkler C.J.O., Armstrong and LaForme JJ.A.

BETWEEN

Omcon Investments Limited

Plaintiff (Appellant)

and

1100828 Ontario Limited, Ron A.V. Guidolin, David Guidolin, R. Guidolin Industries Limited, 530547 Ontario Limited, Jacinta Investments Limited and Katharina Karen Tarantino, Estate Trustee of the Estate of Ron Guidolin

Defendants (Respondents)

Gregory W. Roberts, for the appellant

Vito S. Scalisi, for the respondents

Heard and released orally: March 7, 2012

On appeal from the judgment of Justice M. Edwards of the Superior Court of Justice, dated December 6, 2010 with reasons reported at [2010] O.J. No. 5870.

ENDORSEMENT

[1] Omcon appeals the judgment of Edwards J. dismissing its action. The action was essentially for declaration that: (1) Omcon is the beneficiary of a trust created by an agreement in October 1994 and (2) Omcon is a beneficial owner of a 50 per cent interest in the plaza.

[2] Omcon has not satisfied us that the trial judge made any palpable and overriding errors in his assessment of the evidence in support of the findings of fact he made. This standard of review demands strong appellate deference to the findings of a trial judge. Moreover, this standard applies to all factual findings whether based on credibility assessments, weight of competing evidence or drawing of inference from primary facts. See Housen v. Nicolaisen[2002] 2 S.C.R. 787. As this court has reminded litigants repeatedly, this court’s function is not to retry a case or to substitute its view of the evidence for those of the trier of fact. That is what is being sought on this appeal.

[3] As for the argument of Omcon on the issue of spoliation, the trial judge’s finding that “the agreement was [never] executed by all the parties such that it became a binding agreement” is a full answer to that issue.

[4] Finally, the trial judge did not have to rely on the hearsay statements to decide the case as he did. There was virtually no independent evidence as to the existence of a fully executed trust agreement. Further, there were numerous inconsistencies with Omcon’s version of events and the trial judge was entitled to disbelieve its evidence.

[5] Accordingly, we are not prepared to interfere with the decision of the trial judge and the appeal is dismissed.

[6] The respondents are entitled to their costs as agreed to by the parties in the amount of $20,000 inclusive of disbursements and all applicable taxes.

“Winkler C.J.O.”

“Robert P. Armstrong J.A.”

“H.S. LaForme J.A.”