Court File and Parties
CITATION: Shekhdar v. K&M Engineering, 2011 ONSC 7480
DIVISIONAL COURT FILE NO.: 279/10
DATE: 20111214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, DAMBROT AND HARVISON YOUNG JJ.
BETWEEN:
KERSASP SHEKHDAR Plaintiff
– and –
K&M ENGINEERING AND CONSULTING CORPORATION, FREEWILLS, INC., FREEWILLS.COM (U.S.), INC., WILLIAM KAPPAZ, REGINA GUERIN, FREEWILLS.COM (BERMUDA) LIMITED also known as FREEWILLS.COM (BERMUDA) LTD., FREEWILLS.COM (CANADA) INC. and 3693759 CANADA INC. Defendants
Self Represented (via Telephone)
Robert C. Harason, on his own behalf and for Beard, Winter
Matthew Moloci, for the Defendants
HEARD at Toronto: December 14, 2011
Oral Reasons for Judgment
HARVISON YOUNG J. (ORALLY)
[1] The appellant appeals from the decision of Roberts J. upholding the validity of a direction assigning the proceeding a certain litigation to the respondent, Beard Winter.
[2] The appellant argues that the motion judge made a number of palpable and overriding errors, each of which justify allowing his appeal. His central submissions: (1) are that the motion judge erred in failing to find that the applicant signed the Direction under duress and (2) that she erred in failing to find that the direction had been overtaken or superseded by a subsequent contingency agreement. He argues that she failed to consider and/or erred in assessing the evidence on these subjects. He also argues that she erred in the application of legal principles with respect to duress and with respect to the assessment of evidence.
[3] Having reviewed the record, we find no palpable or overriding error of facts or error in law in her decision that would justify this Court’s intervention. The motion judge’s reasons indicate that she was very much alive to the issues raised by the appellant. She directly considered his evidence on the duress issue. She concluded that his evidence failed to satisfy her that his will was coerced or that he had no realistic alternative. She was entitled to so conclude and the reasons review no reviewable error.
[4] An appeal is not a re-litigation of issues determined at first instance. The appellant’s arguments in essence take issue with the motion judge’s assessment of the evidence before her. All of these findings are subject to a high standard of deference by this Court that is palpable or overriding error.
[5] The appellant had the opportunity to make his submissions, the fact that he disagrees with her conclusion is not a basis of appeal to this Court. The appeal is therefore dismissed.
JENNINGS J.
COSTS
[6] Costs to K&M fixed at $500.00 payable by the appellant forthwith. Costs of Beard Winter to be subject of written submissions not to exceed four pages, to be filed and served on the appellant within four weeks. Appellant’s response to be served and filed within four weeks of receipt of respondent’s submissions.
JENNINGS J.
DAMBROT J.
HARVISON YOUNG J.
Date of Reasons for Judgment: December 14, 2011
Date of Release: December 29, 2011
CITATION: Shekhdar v. K&M Engineering, 2011 ONSC 7480
DIVISIONAL COURT FILE NO.: 279/10
DATE: 20111214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, DAMBROT AND HARVISON YOUNG JJ.
BETWEEN:
KERSASP SHEKHDAR Plaintiff
– and –
K&M ENGINEERING AND CONSULTING CORPORATION, FREEWILLS, INC., FREEWILLS.COM (U.S.), INC., WILLIAM KAPPAZ, REGINA GUERIN, FREEWILLS.COM (BERMUDA) LIMITED also known as FREEWILLS.COM (BERMUDA) LTD., FREEWILLS.COM (CANADA) INC. and 3693759 CANADA INC. Defendants
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: December 14, 2011
Date of Release: December 29, 2011