Malcolm v. Usprech, 2012 ONSC 1662
CITATION: Malcolm v. Usprech, 2012 ONSC 1662
DIVISIONAL COURT FILE NO.: 430/10
DATE: 20120312
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, MURRAY AND HARVISON YOUNG JJ.
BETWEEN:
VERNON MALCOLM
Plaintiff/Respondent
– and –
IRVINE USPRECH and G. PETER ABRAHAMS
Defendants/Appellants
Maurice W. Pilon, for the Plaintiff/ Respondent
G. Peter Abrahams, for the Defendants/ Appellants
HEARD at Toronto: March 12, 2012
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J. (ORALLY)
[1] The appellant, Mr. Abrahams, appeals the judgment of Grace J., dated September 27, 2010 ordering the appellant to pay the respondent, Mr. Malcolm, $25,000.00 plus interest.
[2] The appellant was the respondent’s solicitor in relation to an automobile accident that had been pursued by another lawyer, Mr. Usprech, who is now deceased and against whom the underlying action was dismissed.
[3] The appellant raises two main grounds of appeal. First, he submits that the trial judge misapprehended the evidence. Second, he submits that the trial judge erred in law in his analysis and findings with respect of causation.
[4] The appellant submits that the trial judge’s finding that there was a reasonable prospect of having the order dismissing Mr. Malcolm’s counterclaim set aside constituted palpable and overriding error. The appellant’s arguments assert that the trial judge’s conclusion was simply speculative and unjustified because two years had past. In his submission there were outstanding undertakings that would have precluded the resurrection of the counterclaim on this basis.
[5] We do not give effect to the appellant’s submissions on this point. The trial judge carefully reviewed the evidence. He concluded that in all the circumstances (see para. 80 of the Reasons) that Mr. Malcolm had a reasonable prospect of having Master McBride’s order set aside if Mr. Abrahams had moved diligently. This finding was open to him on the evidence before him.
[6] In our view, the record fully supports the conclusion by the trial judge on this point on the basis that Mr. Malcolm knew nothing of the issues over the non-fulfillment of the undertakings and that the counterclaim was in jeopardy of being, and then in fact was, dismissed on this basis.
[7] In his written submissions the appellant argued that the trial judge had erred with respect to the application of the test for causation. In oral submissions however, he acknowledged that the legal test and principles, as set out at para. 75-81 of the trial judge’s reasons, accurately state the law.
[8] This case centred on the credibility and reliability of the evidence.
[9] The trial judge gave cogent reasons for preferring the evidence of Mr. Malcolm where it was in conflict with that of the appellant and for accepting Mr. Malcolm’s version of events. The appellant has failed to demonstrate any palpable or overriding errors of fact found, or inferences drawn, nor has he shown any errors of law or principle that justify the intervention of this Court. The trial judge did not misdirect himself with respect to what constitutes causation. The appeal is therefore dismissed.
ASTON J.
[10] I have endorsed the Appeal Book and Compendium, “For oral reasons given and recorded, this appeal is dismissed. The appellant to pay costs fixed at $9,164.30.” By way of reasons with respect to the costs, it is our view that this appeal should not have been advanced given the applicable standard of review, which is not mentioned in the appellant’s factum. The respondent, in our view should not be required to absorb any of the costs of the appeal.
HARVISON YOUNG J.
ASTON J.
MURRAY J.
Date of Reasons for Judgment: March 12, 2012
Date of Release: April 3, 2012
CITATION: Malcolm v. Usprech, 2012 ONSC 1662
DIVISIONAL COURT FILE NO.: 430/10
DATE: 20120312
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, MURRAY AND HARVISON YOUNG JJ.
BETWEEN:
VERNON MALCOLM
Plaintiff/Respondent
– and –
IRVINE USPRECH and G. PETER ABRAHAMS
Defendants/Appellants
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: March 12, 2012
Date of Release: April 3, 2012