Court File and Parties
CITATION: High-Tech Realty Inc. v. Pichugin, 2014 ONSC 1783
DIVISIONAL COURT FILE NO: 236/13
DATE: 20140320
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
WHITAKER J.
B E T W E E N:
High-Tech Realty Inc.
Appellant
- and –
Oleksandr Pichugin o/a Oleksandr Pichugin Paralegal Services
Respondent
Counsel:
Michael Mazzuca, for the Appellant
Arthur Zeilikman, for the Respondent
HEARD: March 19, 2014
REASONS FOR DECISION
WHITAKER J.:
[1] High-Tech appeals from the judgment of Deputy Judge R. Caplan of the Toronto Small Claims Court, dismissing High-Tech’s action for breach of contract in the amount of $17,808.29 against Oleksandr Pichugin.
[2] Pichugin is a paralegal and provided services to High-Tech from September 6, 2007 to March 31, 2008.
[3] Paul Oulahen is the principal of High-Tech.
[4] The parties agreed during the course of their relationship that Pichugin was an independent contractor and would invoice High-Tech for $550 a week.
[5] In March of 2008, Pichugin invoiced High-Tech for $750 a week without first raising the issue of an increased rate with High-Tech. High-Tech paid it in error.
[6] In response, Oulahen called Pichugin for a meeting. The two men met on March 31, 2008. Oulahen’s son was present. At the meeting, Pichugin said he would not work for the lower amount of $550 a week. Oulahen asserts that their relationship was at an end at that point. Pichugin states that it was not clear what the parties were with respect to each other.
[7] According to Oulahen: He said to Pichugin at the meeting that he would pay the last invoice of $750. Oulahen said to Pichugin, “If you want this cheque for $750 then I don’t want any hassles, I don’t want any headaches, I don’t want any lawsuits, I don’t want any problems… You’re going to go your way and I am going to go my way and we’re not going to have any further issues with respect to anything between us”. Oulahen says that Pichugin agreed, the parties shook hands and High-Tech provided Pichugin a cheque for the amount of $750 that he had asked for.
[8] Pichugin does not agree with Oulahen’s recollection of what was said or done at the meeting. In his view, the meeting ended with no firm understanding of the nature of the relationship between the parties.
[9] Pichugin initiated a claim with the Canadian Revenue Agency (“CRA”) claiming insurable and pensionable earnings while he was working for the appellant. This claim went through two appeals, internal to the CRA, and then to the Tax Court of Canada. High-Tech was given notice and participated.
[10] Eventually, High-Tech was successful.
[11] High-Tech did not ask for costs before the Tax Court and none were ordered.
[12] High-Tech then commenced the current proceeding in the Small Claims Court to recoup its costs and expenses of the Tax proceeding in the amount of $17,808.29.
[13] In this matter, the applicant took the position that the parties had a verbal settlement agreement, that the respondent had provided a verbal release and that the application to the CRA was in breach of the release. The appellant took the position that costs incurred in the Tax litigation could be claimed in the Small Claims Court as damages for breach of the verbal release.
[14] Following a two-day trial at which evidence was called, the trial judge dismissed the action. The trial judge found there to be no verbal agreement and release that would be binding on the parties.
[15] As one might imagine, credibility was a significant issue in a trial where the central issue was one of proving a verbal settlement and release.
[16] The issues to determine in this matter are of mixed fact and law.
[17] The parties agree the standard of review on a case of mixed fact and law is palpable and overriding error.
[18] I agree with the submission of the appellant that a verbal agreement is as binding as a written one. The difficulty and the risk to the parties asserting the oral agreement, however, is that verbal agreements and handshakes are more ambiguous than written releases and may be exceedingly difficult to prove – hence the preoccupation with reducing agreements to writing for purposes of certainty and clarity.
[19] Having reviewed the material filed by the parties, including portions of transcripts, it is apparent to me that there is no palpable and overriding error here.
[20] The trial judge spent two days with the parties and was in a position to measure and sift the facts asserted or challenged. The trial judge’s findings are entitled to deference. (See Houden v. Nikolaisen, [2002] SCR No. 31, Schwartz v. Canada, 1996 217 (SCC), [1996] 1 SCR, 254).
[21] Whether or not this court would substitute its judgment for that of the trial judge is not the question, rather are the trial judge’s determinations within the range of reasonably anticipated outcomes.
[22] It is unfortunate that the parties have now on both sides spent thousands of dollars in this matter which was originally a difference between the parties of less than one thousand dollars a month. It is hard to say that the process has been proportionate to the underlying dispute.
[23] I find there to be no basis to interfere with the findings of the trial judge. The appeal is dismissed.
[24] The parties have agreed on costs all inclusive to the successful party of $5,000 payable forthwith. Judgment accordingly.
Whitaker J.
Date: March 20, 2014
CITATION: High-Tech Realty Inc. v. Pichugin, 2014 ONSC 1783
DIVISIONAL COURT FILE NO: 236/13
DATE: 20140320
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
High-Tech Realty Inc.
Appellant
- and –
Oleksandr Pichugin o/a Oleksandr Pichugin Paralegal Services
Respondent
REASONS FOR JUDGMENT
Whitaker J.
Released: March 20, 2014