DATE: 20010504

DOCKET: C33138

COURT OF APPEAL FOR ONTARIO

RE: BRAVO TOURS LIMITED (Plaintiff/Respondent in Appeal) v. DAMIANO DIMARTINO, DIMARTINO TRAVEL, TIVOLI TRAVEL, STEELES TRAVEL (Defendants/Appellants)

BEFORE: LABROSSE, DOHERTY and FELDMAN JJ.A.

COUNSEL: Timothy J. Law for the appellants Maurice J. Neirinck and Hedy L. Epstein for the respondents

HEARD: April 27, 2001

RELEASED ORALLY: April 27, 2001

On appeal from the judgment of Justice Peter A. Cumming, dated March 22, 1999.

E N D O R S E M E N T

[1] This action required an accounting as between the parties arising out of a joint venture involving various travel agencies. The scheme operated for about 9 months in 1988.

[2] The financial records of all the parties were incomplete. They agreed that the accounting process should begin with figures arrived at by the accountants, Deloitte & Touche. It was agreed that the parties would advance their respective positions in relation to the adjustments that each claimed should be made in the figures arrived at by the accountant. Each party had the onus of proving any adjustment which it claimed should be made in the accountant’s figures.

[3] The trial went on for about 19 days. In some instances, the difference between the figures claimed by the parties was relatively small. In a few instances, there were substantial differences between the positions advanced by the parties.

[4] The trial judge went through each and every figure that was disputed in the accounts. Sometimes he accepted the appellants’ position, sometimes he accepted the respondent’s position, and quite often he arrived at a position somewhere between the positions advanced by the parties. The trial judge gave reasons for each and every decision he made. For example, on several occasions the trial judge rejected the appellants’ position because there were no financial records or business documents that could offer any support for that position. The trial judge also rejected certain claims made by the appellants because he concluded that the funds in issue were advanced by way of capital contribution to Bravo Tours Limited and were, therefore, not properly considered as part of the accounting process. These reasons for rejecting the appellants’ position and the others set out by the trial judge are not unreasonable and reveal no failure to consider relevant evidence or misapprehension of evidence.

[5] The trial judge also said the following:

Credibility is in issue. I find Mr. Di Blasi to be more credible than the two defendants. Generally, I prefer his testimony. Where the evidence of Mr. Fodero or Mr. DiMartino conflicts with that of Mr. Di Blasi I accept the evidence of Mr. Di Blasi unless I state otherwise.

[6] This general finding of credibility is clearly supported by the other findings of fact the trial judge made that are properly linked to the assessment of DiMartino’s credibility. The trial judge found that Mr. DiMartino had falsified certain documents for tax purposes to assist customers and he also found that Mr. DiMartino had made certain improper charges against the account of Bravo Tours Limited. These findings supported the trial judge’s determination that where there was a conflict in the evidence, he could not rely on Mr. DiMartino’s evidence absent supporting documentation.

[7] It must be stressed, however, that the trial judge did not simply reject the appellants’ position based on some broad-based finding of credibility. He carefully went through each and every explanation advanced on behalf of the appellants, rejecting some and accepting others.

[8] We can find no reversible error in the trial judge’s findings. To the contrary, those findings reflect a detailed and even-handed assessment of the extensive evidence placed before the trial judge in the course of this long trial.

[9] The appeal is dismissed with costs.