Belair v. Bourgon, 2020 ONSC 1218

CITATION: Belair v. Bourgon, 2020 ONSC 1218

DIVISIONAL COURT FILE NO.: DC-19-2517

DATE: 20200225

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aston, Penny, Kristjanson JJ.

BETWEEN:

DANIELLE BELAIR

Plaintiff (Appellant)

– and –

MARCEL BOURGON

Respondent

Self-represented, for the Plaintiff (Appellant)

Alice Weatherstone, for the Respondent

HEARD: February 24, 2020

ORAL REASONS FOR JUDGMENT

ASTON J.

[1]

Overview

This is an appeal of a final order and related costs decision issued by Justice Desormeau in February and April 2019 respectively. The order grants the Appellant compensation for her interest in five dogs jointly owned with the Respondent, compensation for certain puppies sold, and allows her possession of a specific list of personal belongings.

2Danielle Belair and Marcel Bourgon, were in a common-law relationship for approximately five years. The Respondent owns and runs a successful dog grooming business called The Groomery, which existed prior to his relationship with the Appellant.

3The Appellant maintains that she was actively involved in the Respondent’s business throughout their relationship. This included breeding puppies, participating in shows, and assisting with the business generally. After the parties separated Ms. Belair brought claims for unjust enrichment over what she alleged to be a joint venture concerning the dog business and requested a monetary award of $104,357. This consisted of unpaid salary, revenues from puppies sold, dog show expenses, and compensation for the Appellant’s interest in the jointly-owned dogs.

4The trial judge found that the Appellant greatly exaggerated her involvement in the grooming business and was adequately compensated for her efforts. The trial judge found that the Appellant’s evidence did not establish that her involvement provided a benefit to the Respondent.

5The trial judge also found that there had been no unjust enrichment of the Respondent in the venture respecting the puppies because the Appellant had been almost fully compensated for the puppies sold before the couples’ separation, and that, following separation, she had no involvement or interest in the puppies subsequently bred and sold. On the evidence, the balance outstanding to the Appellant for her interest in puppies bred and sold was $368.64. Concerning dog show expenses, the trial judge rejected the Appellant’s evidence that she was still owed money.

6There was also an issue as to compensation for the agreed transfer of ownership of five dogs to the Respondent. The trial judge found no reliable evidence supporting the claim that the Appellant purchased two of the dogs in question. While she did find that the Appellant was to be compensated for her share in the dogs, there was insufficient evidence of their current value, which was affected by their age and health issues. The Court found that the total value of the Appellant’s share was $450.00.

7The Court was not persuaded that any unjust enrichment of the Respondent had occurred.

8Regarding the Appellant’s claim of a joint family venture generally, the trial judge found that this was not made out on the evidence. There was insufficient proof of asset accumulation or that one party left the relationship with a disproportionate share of assets that were a product of their mutual efforts.

9The Court found that the parties had agreed that the Appellant had abandoned her restraining order claim. That is confirmed in the Trial Scheduling Endorsement form.

10In her costs decision, the trial judge found that the Respondent did significantly better than his various offers to settle, and awarded costs in his favour as of November 16, 2018—the date of his second-last offer to settle.

[11]

Standard of Review

The starting point on the appeal is to acknowledge the standard of review:

12Questions of law are reviewed for correctness but questions of fact are not to be overturned absent palpable and overriding error. Questions of mixed fact and law lie on a spectrum. If factual and legal elements cannot be separated, the palpable and overriding standard applies.

13With respect to costs, decisions by trial judges are overturned only in exceptional circumstances where there has been a plain and obvious error or a misapplication of principle. Costs are a matter of discretion, and there must be a clear and compelling reason to interfere with the Court’s exercise of that discretion.

[14]

Preliminary Issue

There was a preliminary issue to address on the hearing of the appeal. The Respondent submitted that the Appellant is attempting to introduce fresh evidence, or at least additional information, opinion and documents, on appeal. The particulars are set out at paras. 23 and 24 of the Respondent’s factum. We canvassed each of those items and the Appellant’s response. Without alluding to each item, we can say we are satisfied that we have been able to address the issues on appeal without significant disagreement on what we may properly consider; excluding material not before the trial judge.

[15]

Merits of the Appeal

In turning to the merits of the appeal we will start with the comments of the trial judge on the credibility and reliability of the evidence of each party. She found neither of the parties to be credible witnesses on certain critical evidence. Where possible she relied on available documentary evidence or neutral third-party witnesses. Where there were conflicts in the evidence of the parties, she weighed their testimony in the context of other evidence where possible, to determine which was more reliable.

16The trial judge rendered a comprehensive analysis and explanation for her reliability and credibility conclusions. There is no basis for us to interfere with her conclusions. It is fair to say that the outcome of the trial reflected a credibility contest and the onus on either party to prove what he or she pleaded.

17The Appellant’s factum and oral submissions are essentially an attempt to relitigate the evidence by inappropriately disagreeing with, and baldly objecting to, the trial judge’s factual conclusions in evaluating and weighing the evidence. The Appellant fails to identify any legal error, either in the articulation of any legal test or in the application of a legal test to the facts as found.

18The Appellant also submits that her counsel at trial committed several errors that should result in a new trial being ordered. The conduct described by the Appellant does not meet the threshold for a finding that a new trial should be ordered based upon inadequate representation. Over the five days of the trial, the Appellant was afforded a full and fair opportunity to be heard on every issue.

19Turning to the issue of costs, it is our view that the reasons thoroughly and accurately address the applicable considerations under the Family Law Rules and the jurisprudence. Given what we have already said about the standard of review on this issue, there is no identifiable reason to interfere with the discretion exercised by the trial judge.

[20]

Conclusion

For these reasons, the appeal is therefore dismissed on all issue raised.

Justice D. Aston

Justice M. Penny

Justice F. Kristjanson

Date of Reasons for Judgment: February 24, 2020

Date of Release: February 25, 2020

CITATION: Belair v. Bourgon, 2020 ONSC 1218

DIVISIONAL COURT FILE NO.: DC-19-2517