Allcock v. Larsen, 2013 ONSC 2591
CITATION: Allcock v. Larsen, 2013 ONSC 2591
DIVISIONAL COURT FILE NO.: DC 12-105-00
DATE: 2013 05 13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Justice Irving André
BETWEEN:
AARON KENNETH ALLCOCK
In Person, for the Plaintiff(Respondent)
Plaintiff (Respondent)
- and -
JOAN LARSEN C.O.B. STIGMATA BODY ART
Sheena Naidoo, for the Defendant(Appellant)
Defendant (Appellant)
HEARD: April 26, 2013
REASONS FOR JUDGMENT
[1] The appellant appeals the decision of Deputy Justice Kidd, dated November 21, 2012, granting judgment in favour of the respondent in the amount of $9,534.91. Of this amount the appellant does not dispute that $5,000 constituted a loan from the respondent. The appellant contends that the trial judge committed “palpable and overriding error” with respect to his finding of fact that $4,501.22 of the overall amount of $9,534.97 constituted a loan given to the appellant by the respondent.
[2] For the reasons outlined below, the appeal is dismissed.
SUMMARY OF THE EVIDENCE
[3] The appellant owned a tattoo shop called Stigmata Body Art in Guelph. In January 2011 she received an offer for her to lease additional space for a second store location. To facilitate this, she sought and received financial assistance from a number of individuals including the respondent.
[4] The respondent loaned the appellant a significant amount of money between January and June 2011. He testified during the trial that he loaned her $18,245.51 and in so doing acquired a 25% interest in her new store. Of this amount, the respondent indicated that in three separate transactions, he loaned the following amounts to the appellant:
On February 14, 2011, he withdrew $1,700 from his bank account and gave it to the appellant. He presented bank records confirming that he had indeed withdrawn this amount from his bank account.
He paid $800 to a company called Scutt Signs on or about February 28, 2011, on behalf of the appellant.
He presented a receipt from IKEA dated March 4, 2011, in the amount of $2,001.22 which he maintained he paid in cash on behalf of the appellant.
[5] The appellant denied that the respondent paid any of these amounts on her behalf or gave her $1,700 at any time. She testified that a bag of receipts disappeared from her car on one occasion when she loaned it to him. However, she never put to the respondent that he had taken any receipts from her car. Counsel for the appellant submits that Mr. Allcock did not dispute that he borrowed the appellant’s car on at least one occasion and it was therefore conceivable that he indeed removed the receipts from the car.
TRIAL JUDGE’S DECISION
[6] The two issues in the trial were the extent of the appellant’s indebtedness to the respondent and whether or not the latter had acquired a 25% interest in the appellant’s tattoo shop.
[7] The trial judge rejected the respondent’s claim for a 25% interest in the appellant’s business. He concluded that the respondent had not proven his claim for such an interest. He reasoned that the respondent could easily have reduced this agreement to writing and his failure to do this, in combination with the appellant’s denial of any such agreement, justified a conclusion that the respondent’s claim to a 25% interest in the appellant’s business was not proven on a balance of probabilities.
[8] Regarding the $5,000 loan from the respondent to the appellant, the trial judge found that this loan was in fact given, despite the absence of any written agreement.
[9] The trial judge denied the respondent’s claim for reimbursement for a number of payments and purchases he made for the appellant from February 14, 2011 to February 28, 2011. He found that these payments made on the appellant’s behalf were part of a number of charitable acts made to the appellant “without and (sic) constant need for dollar for dollar recovery or repayment”. To that extent they could not support a finding that they were loans which the appellant was liable to repay.
[10] Regarding the three monetary amounts that form the subject matter of this appeal, the trial judge concluded at page 96 of the transcript of the trial:
For those matters where there was any divergence between his evidence and Ms. Larsen’s evidence, I find that I prefer Mr. Allcock’s evidence and that his evidence was consistent, both in terms of timing and the activities that were going on.
[11] The trial judge proceeded to note that he found that the respondent paid the $800 given that he had the bill and the invoice for that amount. Similarly, he found as a fact that the respondent paid the IKEA receipt for $2,201.22 on the appellant’s behalf given that he was in possession of the original receipt. He also relied on the respondent’s testimony that he had withdrawn $4,000 from his bank account on March 3rd, 2011, and had used some of those funds to pay the IKEA account on the appellant’s behalf.
[12] The trial judge then concluded at pages 96-97:
I accept that those monies were paid by Mr. Allcock at Ms. Larsen’s request because she was short of funds for new store (sic) and that they are monies that are due back to Mr. Allcock.
APPELLANT’S SUBMISSIONS
[13] With respect to the $1,700, the appellant submits that the trial judge made a palpable and overriding error in concluding that this amount was a loan to the appellant without having any documentary or independent evidence to show that the funds were given to the appellant. The appellant submits that there was insufficient evidence on which to base this finding of fact therefore amounting to palpable and overriding error.
[14] Regarding the $800 payment, the appellant submits that the trial judge’s finding that the respondent loaned the amount to the appellant amounts to a palpable and overriding error. Specifically, the appellant contends that the trial judge did not weigh the appellant’s defence regarding this amount in his reasons and accorded it “little or no consideration…”
[15] With respect to the $2,201.22, the appellant submits that the trial judge’s conclusion that this amount constituted a loan “amounts to speculation, rather than reasonable inference”. The appellant further submits that the fact that the respondent had the IKEA receipt in his possession and withdrew a large sum of cash around the same time does not prove that the funds were paid to IKEA on the appellant’s behalf. The appellant submits that she paid the IKEA bill with the assistance of loans from friends, rather than a loan from the respondent.
ISSUES
[16] This appeal raises the following issues:
Do the trial judge’s findings of fact regarding the appellant’s indebtedness to the respondent constitute “palpable and overriding errors” thereby vitiating his judgment?
Did the trial judge provide adequate reasons for his decision regarding the appellant’s indebtedness to the respondent for the $4,501.22 that is the subject of the appeal?
ISSUE #1
[17] An appellate court approaches a trial judge’s findings of credibility with deference and will only interfere if the trial judge commits a “palpable and overriding error”.[^1]
[18] A “palpable and overriding error” simply means that any factual error must be clear and material to the actual conclusion which is challenged.[^2]
[19] A “palpable error” is one that is obvious, plain to see or clear. Examples of such errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.[^3]
[20] An “overriding error” is one that is sufficiently significant to vitiate the challenged finding of fact. An appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in light of the error.[^4]
[21] Did the trial judge commit “palpable and overriding error” in his findings that the respondent loaned the appellant the sums of $1,700, $800 and $2,201.22 on three separate occasions? In my view, he did not. The appellant submits that he did, given the paucity of documentary or independent evidence to show that the withdrawn funds were given to the appellant.
[22] There was evidence from the respondent that could support this finding of fact. He testified that the $1,700 was a loan and that he withdrew this money from the Bank of Montréal for this very purpose which he gave to the appellant. It was within the trial judge’s discretion to accept this evidence even in the face of conflicting evidence from the appellant.
[23] The same reasoning applies to the sum of $800 which the appellant testified she never received. The trial judge clearly preferred the respondent’s version of events over that of the appellant on the basis of its consistency and the appellant’s need for financing to open her second store.
[24] Regarding the third amount in dispute, the trial judge’s finding that this was a loan cannot be dismissed as speculation, rather than reasonable inference, as the appellant suggests. He accepted the respondent’s testimony that he had withdrawn $4,000 from his account on or about March 3, 2011, and that he had used $2,201.22 of this amount to pay an outstanding balance at IKEA on behalf of the appellant. The trial judge clearly did not accept the appellant’s testimony about how the respondent came into possession of the IKEA receipt and that she had paid this amount with the assistance of loans from friends.
[25] While a written agreement would have confirmed the existence of this loan, the absence of such an agreement did not negate a finding, based on the respondent’s testimony, that this amount constituted a loan to the appellant.
ISSUE #2
SUFFICIENCY OF REASONS
[26] There are three purposes for providing reasons when a trial judge is resolving issues of credibility. These are:
The obligation to provide reasons is owed to the public.
An accused should not be left in doubt about why he or she was convicted.
Reasons perform an important function in the appellate process.[^5]
[27] In F.H. v. McDougall, the Supreme Court of Canada noted at para. 86 that:
In civil cases where there is conflicting testimony the judge is deciding whether a fact occurred on a balance of probabilities. In such case, provided the judge has not ignored evidence, finding the evidence of one party credible may well be inconsistent with that of the other party. In such cases, believing one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case. That may be especially true where a plaintiff makes allegations that are altogether denied by the defendant…[^6]
[28] Findings of credibility must be made with regard to other evidence in the case, and may, in appropriate cases, include a reference to the contradictory evidence. However, a trial judge is not required to embark upon a detailed summation of the conflicting evidence.[^7]
[29] A trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, on the conclusion of guilt or innocence. Nor should an error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out.[^8] Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments.[^9]
[30] The trial judge in this case justified his acceptance of the respondent’s testimony on the grounds that it was “consistent both in terms of timing and the activities that were going on”. He proceeded to explain why he accepted the respondent’s version of events emphasizing that he did so because the respondent had in his possession the bill for $800 and the original IKEA receipt for $2,201.22. He also accepted the respondent’s testimony that he had withdrawn $4,000 in March 2011 and had used much of that money to pay the IKEA invoice at the appellant’s request. He accepted the respondent’s testimony that he paid these amounts at the behest of the appellant given that she was short of funds for her new store.
[31] Had the trial judge simply concluded that he accepted the respondent’s testimony because it was consistent both in terms of timing and the activities going on, then the reasons for this judgment would have been insufficient and would likely have constituted reversible error. However, he provided reasons for his conclusions. Those reasons not only justify his decision but provide explanations for the rejection of the appellant’s evidence. He clearly rejected the appellant’s testimony that the respondent had somehow taken the receipts from her car and that her friends had paid the outstanding balances on her behalf.
CONCLUSION
[32] Accordingly, the appeal is dismissed.
André J.
Released: May 13, 2013
CITATION: Allcock v. Larsen, 2013 ONSC 2591
DIVISIONAL COURT FILE NO.: DC 12-105-00
DATE: 2013 05 13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Justice Irving André
BETWEEN:
AARON KENNETH ALLCOCK
Plaintiff (Respondent)
- and -
JOAN LARSEN C.O.B. STIGMATA BODY ART
Defendant (Appellant)
REASONS FOR JUDGMENT
Released: May 13, 2013
[^1]: R. v. R.E.M., 2008 SCC 51, [2008] 3 SCR 3, at para. 59; R. v. Gagnon, 2006 SCC 17, at para. 20.
[^2]: Cook v. Podgorski, 2013 NSCA 47.
[^3]: Waxman v. Waxman, [2004] O.J. No. 1765, at para. 96.
[^4]: Schwartz v. Canada, [1996] 1 S.C.R. 254, at p. 281.
[^5]: R. v. Shepperd, 2002 SCC 26, at para. 55.
[^6]: 2008 SCC 53, [2008] 3 S.C.R. 41.
[^7]: R. v. Dinard, 2008 SCC 24, at paras. 23 and 30.
[^8]: R. v. R.E.M., supra, at paras. 54-56.
[^9]: R. v. Walker, 2008 SCC 34, para. 20.