Tzaferis v. Multicast Networks Holdings Inc. et al., 2015 ONSC 7595

CITATION: Tzaferis v. Multicast Networks Holdings Inc. et al., 2015 ONSC 7595

DIVISIONAL COURT FILE NO.: DC-14-00002057-0000

DATE: 2015/12/04

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Steve Tzaferis

Respondent/Plaintiff

– and –

Multicast Networks Holdings Inc. MCN Sports Inc. Marc Brunet Helene Brunet

Appellants/Defendants

Joseph W.L. Griffiths, for the Respondent/Plaintiff

Steven J. Greenberg, for the Appellants/Defendants

HEARD AT OTTAWA: December 2, 2015

DECISION ON MOTION

Patrick Smith J.

1The Appellants, Multicast Networks Holding Inc., MCN Sports Inc., Marc Brunet and Helene Brunet appeal from the decision of Deputy Judge Catherine Coplea dated September 2, 2014 granting judgment to the Respondent, Steve Tzaferis in the amount of $16,200.00.

2The facts are not in dispute. On September 20, 2011 Mr. Tzaferis agreed to loan the Appellants the sum of $15,000.00 allegedly to help find the start-up costs of the corporate appellants.

3At the request of the appellant Marc Brunet, the funds were made payable to his wife, Helene Brunet.

4The funds were advanced as requested and the loan was documented by a promissory note.

5The appellants defaulted on the loan.

6Deputy Judge Coplea found the corporate appellants for breach of contract and the individual appellants liable on the basis of unjust enrichment.

7The appellants submit that there are four grounds of appeal:

1. That the trial judge made a palpable and overriding error by holding the individual Appellants personally liable;

2. That the trial judge made an error in law by finding the individual appellants liable on the basis of unjust enrichment;

3. That the trial judge erred by drawing an adverse finding that Helene Brunet although present during the trial, did not testify;

4. That the trial judge erred by having regard to the appellants’ pleadings when assessing the credibility of Marc Brunet who did testify at trial.

The Legal Test on an Appeal

8The standard of review on a question of law is correctness. With respect to the findings of a trial judge an appellant must demonstrate that there is a palpable and overriding error in order to succeed. [Mercedes-Benz v. Zang, 2015 ONSC 986 (Div. Ct.); Housen v. Nikolaisen, 2002 SCC 33]

Conclusion

9I find no basis upon which to grant this appeal.

10With respect to the findings of the trial judge, the appellants have not met the burden of showing that the findings are clearly wrong or are unreasonable and unsupported by the evidence.

11Two legal errors are alleged by the appellants. First, that the trial judge made improper use of the appellants’ pleadings and second, that she incorrectly drew and adverse inference based on the pleadings on how the funds loaned by the respondent were used.

12Pleadings serve several purposes including providing admissions on facts not in dispute. It is entirely reasonable for a trial judge to review the pleadings of a party and accept certain facts as admitted without hearing viva voce evidence. In the case at bar, paragraph 7 of the appellants Statement of Defence stated that the corporate appellant had to be revived. It was reasonable to confront Mr. Brunet during his testimony when his evidence did not conform with the admission made in the pleading.

13The learned trial judge was entitled to use this contradiction in assessing the credibility of Mr. Brunet and in fact did decide that his evidence, for several reasons which are set out in her decision, was not credible.

14I do not agree that an adverse inference was drawn by the trial judge because Helene Brunet did not testify. There is nothing in the decision to support this allegation except for the comment that the trial judge was “concerned” that Helene Brunet did not elect to testify. It is therefore purely speculative to state that an adverse inference was drawn by the trial judge.

15This was essentially a decision based upon an assessment of credibility. The individual appellants had the onus of proving that they did not receive a personal benefit from the loan provided by the Respondent. The trial judge found the Respondent credible and that Mr. Brunet was not. Her decision is legally correct and her findings reasonable and entitled to significant deference.

Disposition

16For the reasons set out above, the appeal is dismissed.

17In the event that the parties are unable to resolve the issue of costs themselves they may file written submission within 30 days not to exceed 5 pages in length.

Patrick Smith J.