Court File and Parties
CITATION: Pak v. Constab International Inc., 2018 ONSC 2927
DIVISIONAL COURT FILE NO.: 336/17
DATE: 20180509
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
VLADIMIR PAK Appellant
– and –
CONSTAB INTERNATIONAL INC. Respondent
Vladimir Pak, in person
Stephen-Anthony Zampini, for the Respondent
HEARD at Toronto: April 19, 2018
Swinton J.:
Overview
[1] The appellant Vladimir Pak appeals from the decision of Deputy Judge Buie dated June 5, 2017 in which she gave judgment for the respondent, Constab International Inc., and ordered the appellant to pay $25,000 in damages plus costs.
[2] The respondent brought this action seeking damages for conversion, on the basis that the appellant had failed to return equipment known as a Single Path Minikros Plus System and Accessories Model SYMP-111-01N. The appellant argues that the trial judge made errors of fact and law, and he seeks to set aside her order.
[3] For the reasons that follow, I would dismiss the appeal.
The Standard of Review
[4] In this appeal, the appellant alleges one error of law and numerous errors of fact. The standard of review on an appeal of a question of law is correctness. With respect to errors of fact, the appellant must show that the trial judge has made a palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33 at paras. 8 and 10). A palpable error is one that is obvious, plain to see and clear, while an overriding error is one that is sufficiently significant to vitiate a finding of fact.
The Finding of Conversion
[5] Following a nine day trial, the trial judge gave detailed reasons for her decision to give judgment for the respondent. She found that the equipment in issue was owned by the respondent, that the appellant was in possession of the equipment, and that he failed to return the equipment after the respondent demanded its return in the fall of 2013. She awarded damages of $25,000 to compensate for the replacement cost of the equipment.
Did the trial judge make an error of fact because the plaintiff was not defined properly?
[6] The appellant argues that the respondent Constab International Inc. did not have a cause of action in conversion because the equipment was not owned by it. Rather, the equipment was owned either by a related company Constab Pharmaceutical Inc. or by Omega Pharmaceuticals Inc., where the appellant commenced working in 2007.
[7] The trial judge was aware there were two related corporations, Constab International and Constab Pharmaceutical. She made a finding that the respondent purchased the equipment in 2005, and the ownership did not change.
[8] She also rejected the argument that Omega purchased the system. Rather, she found that Omega was using the equipment through an arrangement with the respondent. There is evidence to support her conclusions. I see no palpable and overriding error in these findings of fact.
Did the trial judge err in defining the equipment?
[9] The appellant argues that the trial judge did not define the equipment properly, and that the original equipment was replaced by other sets of equipment. In all, he submits that there were four sets of ultrafiltration equipment.
[10] The trial judge traced the equipment from its purchase by the respondent in 2005 through moves to various locations and its use at Omega from 2009, with the consent of the respondent. I see no error in the trial judge’s finding that the equipment was not replaced or substituted, and that the appellant failed to return that equipment when the respondent asked for its return. Again, there was evidence to support her conclusions.
Did the trial judge err in failing to distinguish between Corectin and pAFP?
[11] I do not see how this alleged error is germane to the cause of action in conversion. The issue to be determined by the trial judge was whether the appellant failed to return equipment owned by the respondent, after the respondent demanded its return.
[12] In any event, there was evidence that the equipment was necessary in the manufacture of Corectin as well as other products.
Did the trial judge err in accepting certain documents?
[13] The appellant objects that certain documents were accepted as exhibits at trial despite a pre-trial order that documents be served 30 days before the trial. He also alleges that certain documents that the trial judge accepted as evidence were fake.
[14] The trial judge had the discretion to admit documents at trial, even if they were not produced more than 30 days before the trial (see Parkkari v. Lakehead Aluminum Ltd., 2014 ONSC 4167 (Div. Ct.) at para. 21).
[15] I see no injustice in the fact that she admitted these documents. The appellant was represented by counsel throughout the trial, and he did not object to the admission of these documents. The witnesses introducing the impugned documents were available for cross-examination. I see no error in the admission of these documents.
[16] Moreover, the trial judge accepted the evidence that the respondent paid for the replacement equipment through arrangements with a company called Meenlab. I am not satisfied that she erred in doing so.
Does the judgment contain internal contradictions?
[17] Essentially, the appellant takes issue with the fact that the trial judge did not give enough weight to his testimony and to that of Dr. Chang. He also alleges that witnesses for the respondent were untruthful.
[18] The trial in this matter took place over nine days. The trial judge heard from a number of witnesses, including the appellant. She made findings of credibility, as she was entitled to do. She explained why she rejected the appellant’s evidence with respect to certain issues and preferred the evidence led by the respondent. I see no error in her findings or in her treatment of the evidence.
[19] In particular, I note that Dr. Chang did not dispute that the equipment at Omega was the equipment belonging to the respondent.
Did the trial judge err in failing to apply the Limitations Act?
[20] The appellant argues that the trial judge erred in law in failing to find that the respondent’s action was barred by the Limitations Act, 2002, S.O. 2002, c. 24, ss. 4 and 5.
[21] The trial judge found that the appellant was in possession of the equipment and using it at Omega after 2009 with the permission of the respondent. In October and November 2013, the respondent made written demands for the return of the equipment. The appellant did not respond.
[22] The action was commenced on May 23, 2014. In my view, the trial judge correctly concluded that the action was commenced within the limitation period, as the action was commenced within two years from the date on which the cause of action arose. Accordingly, I would not give effect to this ground of appeal.
Conclusion
[23] The appellant believes that he has been treated unfairly, both by the respondent and its principals and by the judicial system, as his version of events was not accepted. However, he has failed to establish any error of law or palpable and overriding error of fact by the trial judge.
[24] Accordingly, the appeal is dismissed. Costs to the respondent are fixed at $7,500.00 for the appeal and $1,500.00 for the motion before Myers J. for a total of $9,000.00 all inclusive.
Swinton J.
Released: May 9, 2018
CITATION: Pak v. Constab International Inc., 2018 ONSC 2927
DIVISIONAL COURT FILE NO.: 336/17
DATE: 20180509
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
VLADIMIR PAK Appellant
– and –
CONSTAB INTERNATIONAL INC. Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: May 9, 2018