Citation and Court Information
CITATION: Raso v. Zitek, 2012 ONSC 314
DIVISIONAL COURT FILE NO.: 3/11
DATE: 20120111
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, PEPALL AND LAUWERS JJ.
BETWEEN:
FRANK RASO Plaintiff (Appellant)
– and –
JOE ZITEK Defendant (Respondent)
Ronald B. Moldaver, Q.C., for the Appellant
Michael F. O’Connor, for the Respondent
HEARD at Toronto: January 11, 2012
Oral Reasons for Judgment
ASTON J. (orally)
[1] Mr. Raso appeals the decision of Macdonald J. dated December 6, 2010 dismissing his claim for $25,000.00 on a promissory note and awarding the respondent, plaintiff by counterclaim, $10,030.00 in damages.
[2] The grounds for appeal in the Notice of Appeal are that the trial judge “erred in finding that there was no consideration for the promissory note” and that the trial judge “manifestly misinterpreted the evidence in respect of the flooring claim quantum, the roof claim quantum, the kitchen electrical wiring claim quantum, the basement cold room quantum and in respect of liability for all of the counterclaims.”
[3] The standard of review is as articulated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[4] The trial judge in this simplified rules case specifically found at paragraph 13 of his decision that the promissory note had nothing to do with the sale price of the house. This finding was based upon his disbelieving the plaintiff’s evidence and accepting the defendant’s evidence on that point. His finding that there was no consideration for the promissory note flows from that finding.
[5] Oral evidence was admissible to establish the failure of consideration (see Glesby v. Mitchell (1931) CarswellNS 66; 1931 57 (SCC), [1932] S.C.R. 260 at paragraph 40). Though that finding alone is sufficient to dismiss the plaintiff’s claim on the promissory note, the trial judge went on to find that the note was void on the basis that it was obtained by misrepresentation of facts. This latter finding effectively disposes of the plaintiff’s alternative claim for $5,000.00 on the note.
[6] We are not persuaded that the trial judge erred at law, misapprehended the evidence or that there is any palpable and overriding error in his factual findings. The same can be said for the issues on the counterclaim. The trial judge did the best that he could on the evidence in quantifying the damages on the counterclaim and his assessment of that evidence was reasonable.
[7] The appeal is dismissed with costs fixed at $5,000.00 plus disbursements of $622.45 and applicable HST.
ASTON J.
PEPALL J.
LAUWERS J.
Date of Reasons for Judgment: January 11, 2012
Date of Release: January 17, 2012
CITATION: Raso v. Zitek, 2012 ONSC 314
DIVISIONAL COURT FILE NO.: 3/11
DATE: 20120111
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, PEPALL AND LAUWERS JJ.
BETWEEN:
FRANK RASO Plaintiff (Appellant)
– and –
JOE ZITEK Defendant (Respondent)
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: January 11, 2012
Date of Release: January 17, 2012