DATE: 20030116 DOCKET: C33220 C33165

COURT OF APPEAL FOR ONTARIO

RE:

RICHARD DUSK, EQUITRONIC INC., DOUG MACKIE, MARGARET DUSK and MARION MACKIE (Plaintiffs) (Respondents) -and- DAVID MALONE (Defendant) (Appellant)

AND RE:

RICHARD DUSK, EQUITRONIC INC., DOUG MACKIE, MARGARET DUSK and MARION MACKIE (Plaintiffs) (Respondents) -and- STATE FARM INSURANCE COMPANY (Defendant) (Appellant)

BEFORE:

O'CONNOR A.C.J.O., CATZMAN and WEILER JJ.A.

COUNSEL:

Sheldon Gilbert, for the appellants

Jeffrey W. Strype, and Jill MacEachern, for the respondents

HEARD:

January 13, 2003

RELEASED ORALLY:

January 13, 2003

On appeal from the judgment of Justice W.J. Lloyd Brennan of the Superior Court of Justice dated October 19, 1999.

ENDORSEMENT

[1] This is an appeal from the order of Brennan J. dated October 19, 1999 awarding the respondents $485,000.00 for economic loss and, in addition, general damages and damages for family law claims which are not the subject of appeal.

[2] The appellants appeal the award of $485,000.00 on three separate bases. First, they submit that they were deprived of a fair trial because the trial judge spread the 36 days of testimony over seven months and then reserved judgment for close to two years. Second, they also submit that the trial judge failed to provide reasons sufficiently intelligible to permit appellate review and that he made contradictory findings which suggest he misapprehended the evidence. Third, they submit that when a loss of business profits is alleged it is required that the lost profits must be proved with precision and that the trial judge erred with respect to the standard of proof to be applied by estimating such damages.

[3] As to the first argument, a lengthy delay in trial and in releasing reasons, without more, will not automatically amount to a denial of a fair trial. The fairness of a trial must be determined by the particular circumstances of each case so that generally some evidence of active prejudice must be shown. Delay insofar as it affected the trial judge's capacity to assess and determine the issues is another matter and is addressed in the context of their second argument.

[4] The appellants' second argument is that the reasons of the trial judge are not sufficiently intelligible to permit appellate review. The appellants state that the lengthy delay in delivering judgment affected the reasons for judgment because the trial judge was no longer in a position to remember the demeanour of the witnesses and that this should affect the extent of deference afforded to his reasons. The appellants further submit that the trial judge ignored or placed insufficient weight on evidence adduced by the defence on the question of how much time the respondents devoted to the Questar project are, instead, in one line, the trial judge accepted the evidence of the respondents without further elaboration. The appellants submit that the trial judge's acceptance of the respondents' evidence is a vague boilerplate statement as in R. v. Sheppard (2002), 2002 SCC 26, 210 D.L.R. (4th) 608 (S.C.C.) and not sufficient to address a significant issue on which there was contradictory evidence.

[5] We do not accept this argument. The principal finding of the trial judge, which the appellant has not appealed, is that the respondents suffered significant injuries and that those injuries affected the respondents' earning capacity. The appellants' argument relates solely to the method by which the trial judge addressed the amount to be attributed to loss of earning capacity. Although his reasons on this question were brief, there was evidence in the record to support each of the conclusions he reached, and we are not persuaded that he ignored or misapprehended evidence in reaching those conclusions.

[6] The appellants' third argument is that the trial judge erred with respect to the standard of proof to be applied with respect to the calculation of the respondents' claim for economic loss. We do not agree. The calculation of the respondents' damages in the context of this case necessarily proceeded on the estimate of the profits that would have been derived from the operation of their business had they not suffered their injuries. This calculation was supported by the evidence of the respondents, of customers, and of an expert business valuator. It was open to the trial judge to accept this evidence, as he did, in putting a figure on the respondents' economic loss. Significantly, he reduced the figure presented by the respondents' valuator by 50% to reflect a number of contingencies, including the fact that the respondents devoted some time to the development of the Questar project.

[7] Accordingly, the appeal is dismissed with costs, fixed in the amount of $15,000.

Signed: "Dennis O'Connor A.C.J.O." "M. A. Catzman J.A." "K. M. Weiler J.A."