COURT FILE NO.: 238/07
DATE: 20080715
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MANOUCHER BARADARAN Plaintiff (Appellant)
- and -
WILLIAM TABERNER Defendant (Respondent)
In Person Anna Husa, for the Defendant (Respondent)
HEARD at Toronto: July 15, 2008
LAX J.: (Orally)
[1] This is an appeal from the decision of Deputy Small Claims Court Judge Wheatley. She dismissed a claim brought for payment on an unpaid account in the amount of $4,886.00 for services rendered by the appellant to his former client, Reza Ghasemi.
[2] The action was brought against William Taberner who agreed to protect the appellant’s account when the file was transferred to him in 2002, subject to the precondition that it was found to be reasonable.
[3] The appellant sued the client, Mr. Ghasemi and also Mr. Taberner to recover the amounts alleged to be owing to him for services rendered to Mr. Ghasemi. The claim against Mr. Taberner was for breach of contract.
[4] The Deputy Judge dismissed the claim on the basis that no cause of action against Taberner personally was established and, that even if it had been, the appellant’s account was neither reasonable nor proper.
[5] The factum filed by the appellant on this appeal raises for the first time a claim in quantum meruit. Assuming that it is appropriate for this Court to entertain this claim, which was neither pleaded nor argued at trial, there was no evidence before the trial Judge nor is there evidence before me to establish the claim.
[6] The trial Judge found as a fact that the account upon which payment is based was lacking in detail and evidence of quantum was poor. The account reflects an amount that the appellant charged on an hourly basis but the appellant admitted at trial that he was only entitled to an hourly rate if the client, Ghasemi, chose to retain other counsel.
[7] Ghasemi was in fact urged by the appellant to find a lawyer when the appellant realized or was urged by FSCO that he could not adequately represent him in his accident benefits claim. In this event, the appellant was only entitled to a percentage of the benefits he collected on behalf of Mr. Ghasemi. There was no evidence led at trial nor is there evidence before this Court with respect to the amount of benefits the appellant actually collected for Mr. Ghasemi before the file was transferred to Mr. Taberner.
[8] During the course of submissions, I reminded the appellant of the standard of review on an appeal from the Small Claims Court but he does not allege, either in his written material or in submissions that there is a clear, palpable and overriding error. There is therefore no basis on which to set aside the findings of the trial Judge who made findings of fact against the appellant and properly dismissed the claim on the basis of the evidence that was before her.
[9] The appeal is dismissed.
LAX J.
Date of Reasons for Judgment: July 15, 2008
Date of Release: July 17, 2008
COURT FILE NO.: 238/07
DATE: 20080715
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MANOUCHER BARADARAN Plaintiff (Appellant)
- and -
WILLIAM TABERNER Defendant (Respondent)
ORAL REASONS FOR JUDGMENT
LAX J.
Date of Reasons for Judgment: July 15, 2008
Date of Release: July 17, 2008