COURT OF APPEAL FOR ONTARIO
Juriansz, Lauwers and Huscroft JJ.A.
BETWEEN
Evelyn Himel
Plaintiff (Respondent/Appellant by way of cross-appeal)
and
David Molson and Leslie Toth
Defendants (Appellant/Respondent by way of cross-appeal)
and
Lee Edward Fingold
Third Party
Counsel:
Charles Sinclair, for the appellant David Molson
Harvey J. Ash, for the respondent Evelyn Himel
Heard and released orally: June 1, 2015
On appeal from the judgment of Justice David L. Corbett of the Superior Court of Justice, dated May 23, 2014.
ENDORSEMENT
1We find the appellant’s grounds of appeal to be without merit, for the following reasons:
2First, the trial judge applied the correct standard of proof, which is the balance of probabilities: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40.
3Second, it is not for this court to review the trial judge’s credibility findings in the absence of a palpable and overriding error, which the appellant has not made out.
4Third, the trial judge had the discretion to draw the adverse inferences he did from Mr. Molson’s failure to testify in response to the evidence of Dr. Toth and Mr. Fingold, and his failure to explain the presence in his file of the allegedly forged direction not to seek an appraisal of the investment property: Lawyers’ Professional Indemnity Co. v. Geto Investments Ltd. (2007), 2007 27756 (ON SC), 51 C.C.L.I. (4th) 74, at para. 93. It appears that Mr. Molson’s failure to testify was a tactical defence decision, and there is no reason to relieve him of the consequences of that call.
5Similarly, it was open to the trial judge to refuse to draw an adverse inference from the respondent’s failure to call the vendors of the investment property, the Holdens, or their lawyers as witnesses.
6Finally, no submissions were made against the punitive damages award and we see no reason to disturb it.
7Both issues raised by the respondent in the cross-appeal were within the trial judge’s discretion. First, although the trial judge had discretion to order a higher interest rate than that provided for in the Courts of Justice Act, R.S.O. 1990, c. C.43, he expressly declined to do so in view of his decision to award punitive damages at $30,000. This remedial structure was open to the trial judge.
8Second, in deciding to award substantial indemnity costs in the amount of the respondent’s full bill of costs, the trial judge noted that this was a straightforward claim, the costs were high relative to the judgment amount, and the trial did not require the most senior solicitors. These are relevant factors and the trial judge did not err in taking them into account.
9Accordingly, the appeal and the cross-appeal are dismissed.
10Costs are fixed at $14,000, all inclusive, to the respondent.
"R.G. Juriansz J.A."
"P. Lauwers J.A."
"Grant Huscroft J.A."
