Court of Appeal for Ontario
Laskin, Epstein and Pardu JJ.A.
BETWEEN
Manjit Garcha
Plaintiff (Respondent)
and
Parminder Singh Mundi and Bindra Mundi
Defendants (Appellants)
Counsel:
Risa Sokoloff and Tamara Ramsy, for the appellants
Fernand A. Majid, for the respondent
Heard and released orally: February 21, 2014
On appeal from the judgment of Justice Douglas K. Gray of the Superior Court of Justice, dated November 23, 2010.
ENDORSEMENT
1Mr. and Mrs. Mundi appeal the judgment of Justice Gray awarding the plaintiff, Garcha, $231,963 for loans he advanced to the Mundis. The Mundis’ main submission on appeal is that the trial judge erred in law by relying on evidence of settlement discussions, which took place before a mediator, a guru, in India. They argue that those discussions were inadmissible because of settlement privilege.
2At trial, the Mundis acknowledged that Garcha advanced the money in question. Their contention, however, was that the money advanced was a business investment for which they were not liable. Garcha maintained that the Mundis were personally liable for the money he advanced.
3In attempting to resolve that dispute, the trial judge was faced with a great deal of conflicting evidence and little documentary evidence to support either side’s position. The Mundis acknowledge this to be so and submit that in this context, the trial judge’s reliance on the discussions in India “tipped the balance” in the trial judge’s finding of liability.
4The trial judge did not accept that Garcha could sue on the settlement of $300,000 reached in India. He did, however, rely on the discussions in India as one piece of evidence showing that the Mundis owed Garcha a considerable amount of money. In our view, the trial judge did not err in using the evidence of the settlement discussions in that way.
5Early in the trial, counsel for the Mundis did raise a preliminary objection about the admissibility of this evidence. However, he accepted the trial judge’s observation that if the objection was to be pursued, then counsel for the Mundis should raise it later in the trial. He never did so. Instead, he led evidence from his clients about the settlement discussions in India and relied on that evidence in support of his position that conditions were attached to the repayment of the money, conditions that were not met. Further, in his closing submissions at para. 78, counsel for the Mundis said:
Therefore, the only value that could be ascribed to the settlement meeting is the argument that the evidence represents an intention to repay loans and wages.
This was the very use the trial judge made of the evidence.
6Therefore, in our view, even if settlement privilege might otherwise attach to those discussions in India, a point we need not decide, that privilege was waived. The trial judge was thus entitled to consider the evidence of those discussions for the limited purpose he explained at para. 300 of his reasons.
7The Mundis also point to other evidence that they say is inconsistent with the trial judge’s finding of liability. However, the trial judge considered this evidence and explained why it did not affect his conclusion that the Mundis were personally liable. Instead, he relied on other evidence to support his conclusion. We have not been persuaded that he committed any palpable and overriding error in doing so.
8Accordingly, the appeal is dismissed with costs fixed at $25,000 all inclusive.
“John Laskin J.A.”
“Gloria Epstein J.A.”
“G. Pardu J.A.”