Citation and Court Information
DIVISIONAL COURT FILE NO.: DC-15-653
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, H. SACHS and SHEARD JJ.
Parties and Counsel
B E T W E E N:
NELSON JOANETTE
M. van Bodegom, Counsel for the Appellant
Appellant
- and -
ROY FISHER, ALYSIA ALTON and JOSH ALTON
K. Preston, Counsel for the Respondents
Respondents
HEARD: at Hamilton, October 4, 2016
Oral Reasons for Judgment
H. SACHS J.: (Orally)
1This is an appeal from the judgment of Flynn J., dated March the 27th, 2015, dismissing the appellant’s claim against the respondent, Roy Fisher, for conversion, breach of trust, and money had and received.
Background
2According to the appellant, Mr. Fisher was his lawyer on a transaction, whereby the appellant mortgaged a property he owned in Brant County for $90,000.00 to secure a loan for Mr. Ornstein. The monies advanced on the mortgage were to be used to repay an existing mortgage in the sum of $20,706.97, with the remainder to be invested through Josh Alton in an investment property in Detroit, Michigan. The mortgage was repaid, but the remaining funds were not invested in the investment property. According to the appellant, those funds were disbursed by the respondent, Fisher, without the appellant’s authority or approval and on the instructions of Mr. Alton and Mr. Ornstein.
3The trial judge dismissed the appellant’s claim, finding that Mr. Fisher was never the appellant’s lawyer on the mortgage transaction. Mr. Fisher acted for the mortgagee, Mr. Ornstein, and Mr. Hoskinson (the appellant’s spouse) acted for the appellant. The trial judge further found that Mr. Fisher was instructed by Mr. Hoskinson, on behalf of the appellant, to disperse the remainder of the mortgage proceeds as requested by Mr. Alton. On the basis of these findings, the trial judge dismissed the appellant’s claim.
4Central to the trial judge’s reasons are his conclusions on credibility. He was clear that he believed Mr. Fisher and that he did not believe either the appellant or Mr. Hoskinson.
5On the third day of trial, after the appellant had rested his case, counsel for Mr. Fisher requested an opportunity to recall the appellant for further cross-examination and to put to him further documentation that he had just received the day before. The documentation related to the appellant’s bankruptcy and included a trustee’s supplemental report on his application for discharge and an affidavit sworn by the appellant with respect to the bankruptcy. The documents were documents that the appellant had, but had refused to produce to Mr. Fisher prior to trial.
6Over the objection of the appellant’s counsel, the trial judge permitted the cross-examination. Prior to the continued cross-examination, he did not allow the appellant to consult with his counsel, but he did allow him to review the documents in question. On the final day of trial, when the appellant’s counsel sought leave to recall Mr. Hoskinson and to file further documents to respond to the issues raised on that cross-examination, the request to recall Mr. Hoskinson was denied, but counsel was given leave to file further documentation, which he did not do.
7It is clear from the trial judge’s reasons that the credibility of both the appellant and Mr. Hoskinson was undermined by the bankruptcy documentation that was produced and the cross-examination that occurred on that documentation.
Analysis
8The appellant made three arguments on this appeal.
Even on the facts as found by the trial judge, the trial judge erred in finding that Mr. Fisher (who was a lawyer) had sufficient authorization to disburse the funds in the way that he did.
The trial judge erred in allowing cross-examination on the bankruptcy documentation without imposing appropriate terms to protect the fairness of the trial.
The trial judge’s award of costs was disproportionate and not in keeping with the reasonable expectations of the losing party.
The Authorization Issue
9The appellant accepts that the trial judge made a finding that Mr. Fisher had authorization from the appellant’s solicitor, Mr. Hoskinson, to disburse the funds in accordance with the direction of Mr. Alton. However, he argues that the trial judge failed to go on and analyze the evidence as to how Mr. Alton actually directed Mr. Fisher to disburse the funds in question. According to the appellant, that evidence was clear and uncontroverted. Mr. Alton directed that almost $23,000.00 be used to pay off his loans at the TD Canada Trust and that almost $35,000.00 be deposited into the account of his sister, Alysia Alton.
10According to the appellant, once Mr. Fisher received these directions, he ought to have realized that the authorization he had received from the appellant through his solicitor was not sufficient to cover such a disbursement of the funds. As put by the appellant, at that point, Mr. Fisher (who was a lawyer) was put on notice that Mr. Alton was not making an appropriate distribution of the funds and in choosing to follow Mr. Alton’s direction, Mr. Fisher was wilfully blind to this fact.
11The problem with this submission is that it is not how the case was argued before the trial judge. At trial, the appellant’s counsel summarized his client’s position as follows:
And then if I could briefly just turn to my friend’s legal arguments. There are two points to be made. My friend says that we can’t prove conversion and we can’t prove breach of trust. In both instances, on analysis, the reason my friend is submitting that we can’t prove it is because factually there was authorization. And I agree. If you find there was authorization, actual or implied, we lose this case.
12As already noted, the trial judge found that Mr. Fisher did have authorization from the appellant to disburse the funds as directed by Mr. Alton. He made this finding not only on the basis of Mr. Fisher’s evidence, but on the basis of a fax, that he accepted Mr. Fisher sent to Mr. Hoskinson and Mr. Hoskinson received, confirming these instructions. At this point, it is also worth noting that in the correspondence that followed this fax (which was dated October 31st, 2008) until August 4th, 2010, Mr. Hoskinson never made any inquiries about the balance of the mortgage funds.
13Before us, the appellant concedes that, at no point, did the appellant’s counsel at trial go on to submit that even if the trial judge found that there was authorization, he then had to consider the sufficiency of that authorization once Mr. Fisher was told by Mr. Alton how the funds were actually to be disbursed. The result is that the trial judge made no findings as to whether, at that point, Mr. Fisher ought to have known or was wilfully blind to the fact that the authorization he had received was not sufficient.
14The appellant submits that this court is in a position to draw that conclusion. We disagree. It is not the role of an appellate court to re-try a case on appeal and to make findings of fact that could have been made by the trial judge, if he or she had been asked to do so. To send this case back for a second trial in order to allow those findings to be made by another trial judge would be to undermine the effective administration of justice. Cases are not meant to be tried piecemeal.
15For this reason, we would not give effect to the first ground of appeal.
The Bankruptcy Documentation Issue
16In oral argument before us, the appellant’s counsel conceded that the trial judge did not breach the collateral fact rule when he allowed the appellant to cross-examine on the bankruptcy documentation. The appellant’s counsel also conceded that this documentation was documentation that the appellant had seen and that was available to him. It also included his own affidavit. Given this, we reject the submission that permitting the appellant to be confronted with the documentation was tantamount to a trial by ambush.
17The trial judge’s rulings with respect to this issue were discretionary, evidentiary rulings. Absent an error in principle or a demonstration that they were clearly wrong, they are entitled to deference from this court.
18The appellant submits that fairness required that the trial judge permit him to consult with his trial counsel prior to being cross-examined on the bankruptcy documentation. However, he also concedes that the trial judge’s decision not to allow him to do so was consistent with case law establishing that a witness is not entitled to consult with counsel while under cross-examination.
19The appellant argues that fairness required that he should have been allowed to call Mr. Hoskinson as a witness in reply. Yet, he concedes that refusing to allow the appellant to call this witness was consistent with the collateral fact rule.
20Thus, the appellant failed to demonstrate any error in principle on the part of the trial judge. Nor did he demonstrate that the trial judge’s rulings were clearly wrong. In this regard, it is appropriate to note that the appellant never advised the trial judge or this court what the evidence he sought to introduce would have demonstrated.
21For these reasons, we would not give effect to the second ground of appeal.
The Costs Issue
22The trial judge awarded Mr. Fisher his costs fixed at $47,000.00 after a four-day trial. This amount was the mid-point between what the appellant’s trial counsel would have requested for partial and substantial indemnity costs. As such, it was clearly within the reasonable expectations of the losing party.
23Appellant’s counsel agreed that it was within the discretion of the trial judge to increase the costs because of what he characterized as the appellant’s “scurrilous attempts to pull one over on this court.”
24We do not agree that the costs awarded were disproportionate given the length of the trial.
25In short, the appellant has not satisfied us that the trial judge erred in principle or was clearly wrong when he exercised his discretion to award the costs he did.
26Therefore, even if we had granted leave to appeal the trial judge’s costs award, we would have dismissed that appeal.
Conclusion
27For these reasons, the appeal is dismissed.
DAMBROT J.
28Appeal dismissed for oral reasons delivered in Court.
29On consent, costs are awarded to the Respondent in the amount of $10,000 all-inclusive.
H. SACHS J.
M. DAMBROT J.
L. SHEARD J.
Released: October 18, 2016
CITATION: Joanette v. Fisher, 2016 ONSC 6288
DIVISIONAL COURT FILE NO.: DC-15-653
DATE: 20161018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, H. SACHS and SHEARD JJ.
B E T W E E N:
NELSON JOANETTE
Appellant
- and -
ROY FISHER, ALYSIA ALTON and JOSH ALTON
Respondents
ORAL REASONS FOR JUDGMENT
H. SACHS J.
Released: October 18, 2016