DATE: 20010820
DOCKET: C33991

COURT OF APPEAL FOR ONTARIO

RE:
MARK WAINBERG (Plaintiff/Respondent) v. JO ANNE APPLEYARD (Defendant/Appellant)

BEFORE:
MORDEN, AUSTIN AND BORINS JJ.A.

COUNSEL:
Jo Anne Appleyard (in person) for the appellant
Mark Wainberg (in person) for the respondent

HEARD:
August 16, 2001

On appeal from the judgment of Justice Harriet E. Sachs dated February 23, 2000.

E N D O R S E M E N T

Released Orally: August 16, 2001

[1] The principle ground of appeal is that the respondent’s legal fees should have been reviewed and determined by an assessment officer. However, the appellant’s attempt to have this action referred to an assessment officer had been dismissed by C. Campbell J. No appeal was taken from this order.

[2] When the appellant raised the same issue before the trial judge, she quite properly declined to consider it on the ground that because it had been previously decided by C. Campbell J., she was going to abide by his ruling.

[3] The trial judge, following a five day trial, ruled that the appellant owed the respondent $91,760 for legal fees, plus pre-judgment interest. We are satisfied that the trial judge took into consideration the correct legal principles relevant to determining the value of the respondent’s legal services and that she committed no error in valuing his services in the amount of $91,760.

[4] The appellant also attacked certain findings of credibility made by the trial judge. The trial judge had the advantage of seeing and hearing the witnesses. We are not persuaded that there are any proper reasons to interfere with the trial judge’s assessment of the credibility of any witness.

[5] Therefore the appeal is dismissed with costs.

“J. W. Morden J.A.”

“Austin J.A.”

“S. Borins J.A.”