DATE: 2003-08-19

DOCKET: C38532

COURT OF APPEAL FOR ONTARIO

RE: CRAIG JOSEPH NOGAS (Plaintiff (Respondent on Appeal)) – and – BERNPAUL ENTERPRISES LTD. And TED ZAHARCHUK (Defendants (Appellants on Appeal))

BEFORE: ROSENBERG, GOUDGE and ARMSTRONG JJ.A.

COUNSEL: Ronald G. Chapman For the appellant

Gordon F. Luborsky For the respondent

HEARD: August 11, 2003

RELEASED ORALLY: August 11, 2003

On appeal from the judgment of Justice Denise Bellamy of the Superior Court of Justice dated June 24, 2002.

E N D O R S E M E N T

[1] The appellants submit that the trial judge made a palpable and overriding error in failing to reconcile the lack of documentary evidence supporting the respondent’s claim. Counsel points out in particular that even in the final October 1998 letter, the respondent does not expressly set out the amount of the capital count that he had accumulated through so-called sweat equity. He also points out that throughout the six-year relationship there was nothing in writing to support the respondent’s position and the various documents authored by Mr. Zaharchuk seem to be at variance with the 1992 Agreement.

[2] The trial judge referred to all of this evidence. In the end, as counsel fairly concedes, this case turned on credibility. The trial judge correctly framed the issue and we can only interfere with her findings of credibility if she made a palpable and overriding error in her assessment. See Housen v. Rural Municipality of Shellbrook No. 493 (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 (S.C.C.).

[3] The trial judge accepted the respondent’s evidence including his explanations for his conduct after May 1992. Despite Mr. Chapman’s thorough and helpful submissions, we are satisfied that the trial judge was entitled to accept the respondent’s evidence. That evidence, if believed, provided a basis for her legal conclusions. While we might have come to a different conclusion, that is not the test for review of factual, including credibility, findings.

[4] Accordingly the appeal is dismissed with costs fixed at $25,000 inclusive of disbursements and GST.

“M. Rosenberg J.A.”

“S.T. Goudge J.A.”

“Robert Armstrong J.A.”