Latner and 1651663 Ontario Inc. 2014 ONSC 1221

CITATION: Latner and 1651663 Ontario Inc. 2014 ONSC 1221 COURT FILE NO.: DC-11-324 DATE: 20140225

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

BETWEEN:

Michael Latner Defendant/Appellant

-and-

1651663 Ontario Inc. o/a Property Care is a Briese Plaintiff/Respondent on Appeal

BEFORE: Justice H.K. O’Connell

COUNSEL: Mr. Ronald B. Moldaver, Q.C., for the Appellant Ms. Michael Anne MacDonald, for the Respondent

HEARD: July 05, 2013

REASONS FOR DECISION

[1] This is an appeal from Deputy Small Claims Court Judge Lange at Bracebridge dated July 04, 2011. The trial was conducted on May 27, 2011.

[2] At the outset of the appeal counsel for the respondent asked the court to consider fresh evidence. An argument was made by appellant’s counsel as to why the evidence did not meet the threshold for receivability. After discussion between counsel and the court it was agreed that that issue could await argument on the appeal.

Position of the Appellant, Latner

[3] For the appellant, Latner, Mr. Moldaver argues that the Defendant 1651663 (hereinafter ‘165’) failed to establish that it was entitled to judgment based on the unjust enrichment of Latner. Citing Grover v. Hodgins and Dorans, 2011 ONCA 72, counsel says that in cases that are not for the provision of money but rather for services, services may not benefit the defendant as the defendant may have not wanted those services or may not have wanted them if it had to pay for them. That is the case at bar, says the appellant.

[4] The trial judge is submitted to have made findings of fact contrary to the evidence and made findings of fact that the respondent and the appellant did not make any arrangement for the services said to have been completed by the respondent, in particular those related to property management. Those findings belie any suggestion of unjust enrichment. This court was taken to portions of the transcript.

[5] Mr. Moldaver says that the trial judge made a palpable and overriding error, which he described as a bright line error, when he said that Latner never told Mr. Briese in July 2008 that he wouldn’t pay for 165’s management services.

[6] There was, says Mr. Moldaver, no evidence that Latner continued to engage Briese in relation to his property management fees, when it is agreed that the contract in this regard between Latner and Briese had been terminated. Indeed the judge found such a termination post July 2008.

[7] The court was referred to invoices for services said to have been rendered, all of which were generated post final refusal of Latner to pay. The trial judge’s reasons for finding a juristic reason to substantiate unjust enrichment is the product of an adverse finding of the credibility of Latner which is as unreasonable and “as palpable as it gets.”

[8] Unreasonable and palpable error also are present in the trial judge’s acceptance of Mr. Briese’s credibility. In short the relationship between Latner and 165 was not what the trial judge found it to be, on the evidence.

[9] The suggestion that Mr. Briese used the past to bill for the roughly 10 month period in question in this litigation is simply not tenable says counsel. To quote the position of Mr. Moldaver, “time claimed was reconstructed by the respondent to artificially bill the appellant.”

[10] Given a complete absence of evidence for the property management fees charged, and given, says Mr. Moldaver, that the only way to assess such fees is via market value in any event, a new trial is required at the very least on that issue. There was a complete evidentiary void in this regard before the learned Deputy Small Claims Court Judge. His assessment of damages was therefore flawed.

[11] To quote from Mr. Moldaver’s submissions and in particular his factum: “[The] previous arrangement – the past conduct – does not and cannot inform the dispute in favour of Briese.”

Position of the Respondent, 165

[12] For the respondent, Ms. MacDonald argues that various invoices submitted were not “after the fact”.

[13] The trial judge was completely entitled to make the determinations of credibility that he did. Those findings are anything but palpable and unreasonable. In short Mr. Briese’s credibility was unscathed. Mr. Latner’s clearly not. Ms. MacDonald reminds that extracts of the transcript must not be isolated but must rather be considered in the context of all of the evidence in assessing the reasonableness of the trial judge’s findings.

[14] The finding that Mr. Briese’ company continued to provide management services was not a consequence of a one way desire, but rather because of the constant requests of Mr. Latner as advanced through his executive assistant, Ms. Franca Cushinan. Extensive reference was made to the trial judge’s reasons, as well as a substantial number of emails that were exchanged primarily between Cushinan and Mr. Briese.

[15] These emails, as the trial judge indicated, represent an ongoing and consistent set of directions to Mr. Briese indicative of what was expected of him. The trial judge was aware that Mr. Latner is himself a property manager. Ms. MacDonald submitted that Mr. Briese was expected to provide continuous management services, at the request of Latner and basically on the basis of a 24/7 arrangement.

[16] Latner never said he would not pay for those services. Latner was found not credible when he testified contra. Briese’s evidence on this point was completely accepted. There was an ongoing expectation by Briese that his company would be paid. Briese was asked to do things, the trial judge found a clear expectation he would be compensated for management services, and it was reasonable for that compensation to be paid. In short the trial judge’s finding of unjust enrichment is unassailable.

[17] Latner knew what services he expected as he demanded them. It was at trial, and is now, a fallacy to suggest that Briese was not providing management services to Latner. Again, Ms. MacDonald reminds that the trial judge made findings of fact that should be deemed reasonable.

[18] Pointed reference was made to the letter from Briese on behalf of his company to Mr. Latner dated May 12, 2009, wherein Mr. Briese makes it clear that in the context of his company’s ongoing work, and the management of the property, inclusive of the costs for that service, that a flat fee proposal be discussed as was previously the case. This proposal remained on the table until the relationship between Briese and Latner soured to the point of litigation.

[19] All of the objective evidence, as well as the evidence of Mr. Briese, firmly grounds says Ms. MacDonald the finding of the trial judge that Mr. Briese had an ongoing accepted belief that he would be paid for the services his company rendered. It made no sense that Mr. Briese’s company was working for free.

[20] Ms. MacDonald says “common sense and credibility were and still are the only issues that this court need consider.” There is no issue of law on this appeal. The trial judge set out accurately the law of unjust enrichment and applied the facts as he found them, to the law.

[21] Unlike Grover, the issue proven in the case at bar is the finding that Mr. Latner has not paid for the services that have clearly been rendered. The facts in Grover are not, says counsel, the facts that were before the trial judge in the case at bar.

Reasons

[22] I agree with the respondent that the trial judge did not commit a palpable and overriding error in his fact finding analysis. Nor do I find that the trial judge’s examination of the law permits this court to find that the application of the law to the facts as he found them is questionable on the standard of correctness.

[23] The reasons are succinct and driven to the issues. The trial judge noted that the pre-existing contract between the parties ceased in July 2008. The trial judge found that the invoices submitted post that time were a consequence of a flat fee basis derived with reference to the costs of Mr. Briese’s services for the period 2006-2008. There was evidence to substantiate that finding.

[24] The trial judge went on to find that unjust enrichment had been proven on the balance of probabilities in accord with Grover v. Hudgins, a decision that made plain that equitable relief was within the jurisdiction of the Small Claims Court. I pause to note here that the respondent limited its claim to $25,000.00 to maintain the jurisdiction of the expeditious process of the Small Claims Court.

[25] The learned Deputy Small Claims Court Judge set out the law on unjust enrichment inclusive of the need to establish enrichment to the defendant; a corresponding deprivation by the plaintiff; and an absence of juristic reason for the enrichment. Citing Binichakis v. Smitherman, [2009] B.C.J. No. 851 (Prov. Ct.) the trial judge noted that it must ask if it would be unjust or against conscience to permit the recipient to retain a benefit without compensating the one who provided it.[^1]

[26] The facts in support of the finding of unjust enrichment were noted by the Deputy Small Claims Court Judge in the case at bar to be rooted in “…ample evidence that the defendant continued to engage the services of Mr. Briese to manage the property and supervise the plaintiff’s staff after July 2008 when the hourly arrangement was terminated.” I agree.

[27] Reference was made to the emails at exhibit 5. As the trial judge noted all of the emails required a response from Briese. The trial judge expressly excerpted sections of 8 of those emails for the time period October 2008-June 2009. Ready reference to exhibit 5 makes it clear that this reference to 8 of the emails exchanged between Mr. Briese and Mr. Latner’s assistant, is a mere sampling.

[28] As the trial judge stated, and as the facts as found by him reveal, “the type of compensation to be paid by the defendant for Mr. Briese’s services, that is on an hourly rate or flat fee basis, was always in the background of the relationship between the parties.”

[29] At page six of his reasons the trial judge tracks the compensation history. He made findings of fact based on the credibility of the plaintiff and defendant. None of those findings are impeachable on appeal.

[30] The trial judge expressly noted that the email from Mr. Latner’s assistant dated June 04, 2009 was contrary to the defendant’s evidence at trial two years later when he said that he told Mr. Briese in July 2008 that he would no longer pay him for his services.

[31] This finding was clearly open to the trial judge and indeed was crystal clear. It is a stock and trade credibility finding that admits of no tenability to the claim of palpable and overriding error. This finding did not stand alone. It was also determined to be contextually placed given the prior history between the parties.

[32] The fact is Mr. Latner continued to engage the services of Mr. Briese. Indeed one could be forgiven for describing his demands as particularly exacting. He knew that Mr. Briese was engaging services that demanded compensation. As the trial judge said “if the defendant wished to be free and clear of his liability to the plaintiff for Mr. Briese’s involvement his remedy was to simply terminate the plaintiff and engage another property management company.” Latner was anything but a timid client.

[33] Against this backdrop of evidence and its assessment and credibility findings made well within his province to do so, and with the application of a dollop of common sense, the trial judge found that the test of credible evidence did not rest with the version of Mr. Latner. I agree.

[34] As for damages the learned Deputy Judge set out the relevant law. He used the template of history between the parties in the non-contentious time. He did not do so in a vacuum of information, nor in a speculative manner. Rather the trial judge provided reasons that I find are unimpugnable on appeal.

[35] The trial judge expressly noted that Mr. Briese did not keep time dockets for the period in question. As the Deputy Judge noted “it is the duty of the court to quantify damages even when the evidence is not ideal.” In this respect I reject the submission of Mr. Moldaver that fair market value is the only way to quantify damages. I find as a matter of common sense that the historical contact in the relationship between the parties both pre termination of their contract and post termination of the contract informed the reasoning of the trial judge that damages were assessable on this record. The trial judge provided a sustainable basis to arrive at the damages that he found were awardable.

[36] Simply put the award made in damages is in accord with a reasoned basis to do so and is not grounded in speculation or rank guess work. There is no reason for this court to disturb it.

[37] Finally, I note that the defendant’s submission that other cottagers paid 80% less than he did in management services for work that was equally demanding, was rejected by the trial judge as having no evidentiary value as it was a mere statement without evidentiary support either from the notational similarly situated cottager, or via the proffering of expert evidence.

[38] The judgment of the trial judge is therefore upheld. The appeal is dismissed. The court need not receive the fresh evidence as filed by the respondent on appeal.

[39] The respondent is entitled to post judgment interest and to consideration of an assessment of its costs before me. I note that counsel advised that the trial judge never dealt with costs, although he set out the protocol for the addressing of costs.

[40] The Deputy Judge should provide his determination on costs without delay in relation to the costs at trial that flow to the plaintiff, inclusive of his dismissal of the defendant’s claim at trial, for which he noted the plaintiff was entitled to costs.

[41] Costs submissions and outline to be forwarded to my attention at the Oshawa Courthouse, Superior Court of Justice via facsimile to 905 743 2801. Ms. MacDonald to serve and file costs submissions by March 10, 2014, with those of Mr. Moldaver to follow within 5 days of receipt. A total of 6 pages only. Ms. MacDonald to have a right of reply if necessary 5 days after receipt of the materials of Mr. Moldaver.

H.K. O’Connell, J.

DATE: February 25, 2014

[^1]: Aff’d on appeal, [2010] B.C.J. No 754 (S.C)