Court of Appeal for Ontario

Citation: Bielanski v. Mundenchira, 2020 ONCA 811

Date: 2020-12-15

Docket: C66706

Judges: van Rensburg, Hourigan and Brown JJ.A.

Parties

BETWEEN

Helena Bielanski and Edward Bielanski

Plaintiffs

and

Jocie Varghese Mundenchira, Sisily Mundenchira, Amitha Jocie Mundenchira, Babitha Mundenchira, Anthony Vadakkanchery, Suma Devassy, Bogdan Kaminsky and Suvendu Goswami

Defendants

AND BETWEEN

Jocie Varghese Mundenchira, Sisily Mundenchira, Amitha Jocie Mundenchira, Babitha Mundenchira

Plaintiffs by Crossclaim (Appellants)

and

Suvendu Goswami

Defendant by Crossclaim (Respondent)

Counsel

Harry S. Mann, for the appellants

James R.G. Cook and Scott K. Gfeller, for the respondent

Heard: November 20, 2020 by video conference

On appeal from the order of Justice William M. LeMay of the Superior Court of Justice, dated February 19, 2019, with reasons reported at 2019 ONSC 1162.

REASONS FOR DECISION

[1] We dismissed this appeal with reasons to follow. These are our reasons.

[2] The appellants are Jocie Mundenchira, who is a real estate agent and investor, and his wife and two adult daughters. They appealed the order of the trial judge awarding damages of only $5,000 and dismissing the balance of their crossclaim against the respondent, their former lawyer.

[3] The trial judge concluded that the respondent breached his duty of care in acting for the appellants in the purchase of their home (the “Bluestream property”) in 2005. Through oversight in the legal description of the property in the deed, instead of receiving a conveyance of one severed 50-foot wide lot from the vendors (the Bielanskis), the appellants became the registered owners of an unsevered lot that was 100 feet wide, which included the property where the Bielanskis continued to live. The error was cured in 2012, after the respondent obtained a consent to sever and after the Bielanskis started an application to have their property transferred back to them. The appellants settled the proceeding with the Bielanskis by transferring the severed lot and receiving payment from them for the property taxes the appellants had paid between 2005 and 2012 on the Bielanskis’ property.

[4] The central issue at trial was whether the respondent’s breach of the duty of care caused any damage or loss to the appellants and, if so, the amount of damages. The trial judge awarded $5,000 in damages, which represented the refund of a retainer the appellants paid to the respondent in respect of the litigation with the Bielanskis.

[5] In June 2009 the appellants listed the Bluestream property for sale at a price of $1.125 million, in anticipation of their move to a new custom home. The appellants eventually sold the Bluestream property to their friends in 2011. In their crossclaim against the respondent the appellants claimed damages which included: (a) $235,000 for the reduction in the value of the Bluestream property due to the title defect; (b) $66,784 in carrying costs for the Bluestream property from the original listing date until it was sold; (c) $390,000 in “business losses” as a result of the equity of the Bluestream property being tied up between 2009 and 2012 and the lost opportunity to use the money to invest in condominiums; (d) interest on the property taxes they had recovered from the Bielanskis; (e) fees paid to the respondent and costs paid by the appellants to the new purchasers of the Bluestream property; and (f) damages for aggravation and mental distress in the sum of $200,000.

[6] We are not persuaded that there was any palpable and overriding error in the trial judge’s conclusion that the damages claimed by the appellant (other than the $5,000 that was awarded) were not reasonably foreseeable, supported by the evidence, or caused by the respondent lawyer’s error.

[7] First, there was no palpable and overriding error in the trial judge’s conclusion that the reason for the appellants’ delay in selling the Bluestream property was the fact that the property’s listing price was too high, and that there was no evidence linking the delay and any reduction in value to the title defect. As the trial judge noted, there was no reliable evidence on the record that potential purchasers were not making offers to purchase the Bluestream property because the property taxes were too high. Rather, he concluded that the reason the property did not sell in 2009 was because Mr. Mundenchira had an unreasonable view of the value of the house: at para. 108. The trial judge explained why he was not persuaded by the appellants’ evidence (a package of listings of other custom-built homes with list prices ranging from $870,000 to $1.149 million), where it was impossible on the record before him to compare the relative features of the different houses to the Bluestream property: at para. 109. The trial judge’s findings of fact based on his assessment of the evidence and its weight is entitled to deference, absent a palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10, 11, 25. We see no such error in the trial judge’s conclusion on this point.

[8] Second, the trial judge found that the appellants knew as early as 2005, but at the latest by 2009 when this discrepancy was noted on the June 2009 appraisal they obtained before listing the Bluestream property for sale, that they had received a conveyance of both halves of the unsevered lot rather than a single severed lot, yet they did nothing to rectify the problem until October 2010. This conclusion was open to the trial judge on a consideration of the evidence, including Mr. Mundenchira’s email to MPAC in September 2009, stating, “I have represented this since we bought the property in 2005” (and referring to the records showing his property as being 100 feet wide whereas his belief was that his property was only 50 feet wide), as well as the trial judge’s rejection of Mr. Mundenchira’s evidence on this point, which he found to be lacking in credibility.

[9] Third, the trial judge did not err in refusing to accept, as expert evidence, the opinion of a business valuator purporting to calculate the appellants’ business losses that were alleged to have occurred as a result of the delay in the sale of the Bluestream property. The trial judge did not err in his identification of the test for admission of expert evidence or in its application. The trial judge observed that the proffered expert evidence was simply a mathematical calculation that flowed from assumptions by Mr. Mundenchira and his counsel and that there was no verification of inputs. Moreover, the appellants had refused to produce banking records and other financial information on discovery. In any event, the expert’s testimony was irrelevant once the trial judge had concluded that the alleged business losses were not caused by the title defect.

[10] Finally, the appellants demonstrated no error in the trial judge’s conclusion that the respondent was not liable for the interest on the property taxes they were reimbursed by the Bielanskis, which they ought to have recovered from the Bielanskis, and that the claim for damages for aggravation and mental distress failed for lack of evidence.

[11] For these reasons the appeal was dismissed. The respondent is entitled to his costs in the agreed amount of $15,000, inclusive of disbursements and HST.

“K. van Rensburg J.A.”

“C.W. Hourigan J.A.”

“David Brown J.A.”