Kamali v. Santco Trading Inc., 2010 ONSC 231
DIVISIONAL COURT FILE NO.: 171/09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, SWINTON AND SACHS JJ.
BETWEEN:
MOSTAFA KAMALI
Plaintiff
(Respondent)
– and –
SANTCO TRADING INC,. JALIL SADEGHIAN and HAMIDEH YAVARI
Defendants
(Appellants)
Samuel M. Robinson, for the Plaintiff (Respondent)
Atoosa Madhavian and David S. Reiter, for the Defendants (Appellants)
HEARD at Toronto: January 8, 2010
REASONS FOR JUDGMENT
SWINTON J. (Orally)
1The standard of review with respect to a trial judge’s findings of fact is palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 10).
2The trial judge found there was an oral contract for the payment of commission for the sale of stone between Mr. Kamali and Santco Trading Inc.
3The appellant argues she erred in finding liability because Mr. Kamali testified that commission was owing when all the stone was sold and a few hundred square feet remained. Moreover, Mr. Radmanesh, a witness for the defendant, gave evidence there were two thousand square feet of stone remaining. Therefore, the appellant argues, the trial judge’s failure to apply the triggering term of the agreement, the sale of all the stone, gives rise to a reasoned belief that she ignored or misconceived significant evidence that would affect the conclusion reached.
4We disagree. First, in paragraph 9 of her thorough reasons, she refers to the triggering term in issue. Second, in paragraph 10, she refers to Mr. Kamali’s evidence that all the stone had been sold. While this evidence was modified somewhat in cross-examination when Mr. Kamali stated that a few hundred square feet remained, that modification was de minimis, and in our view would not have affected the conclusion that the contract had been performed. Third, this conclusion was reinforced by the evidence of Mr. Mirkhan, which the trial judge accepted, that the defendant had admitted owing Mr. Kamali commission.
5Essentially this was a case that turned on credibility. The trial judge made it clear that she found Mr. Kamali to be a credible witness and she accepted his evidence. It is not our function to interfere with a trial judge’s findings of credibility or to re-weigh the evidence.
6The appellant having failed to demonstrate any palpable and overriding error by the trial judge, the appeal is dismissed.
FERRIER J.
7We fix the costs in favour of the respondent in the amount of $2,500.00, including GST and disbursements.
8I have endorsed the Appeal Book: “This appeal is dismissed for oral reasons delivered this day. Costs fixed at $2,500.00.”
SWINTON J.
FERRIER J.
SACHS J.
Date of Reasons for Judgment: January 8, 2010
Date of Release: January 19, 2010
CITATION: Kamali v. Santco Trading Inc., 2010 ONSC 231
DIVISIONAL COURT FILE NO.: 171/09
DATE: 20100108
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, SWINTON AND SACHS JJ.
BETWEEN:
MOSTAFA KAMALI
Plaintiff
(Respondent)
– and –
SANTCO TRADING INC,. JALIL SADEGHIAN and HAMIDEH YAVARI
Defendants
(Appellants)
REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: January 8, 2010
Date of Release: January 19, 2010