COURT OF APPEAL FOR ONTARIO

DATE: 20041110

DOCKET: C40580

RE: KJA CONSULTANTS INC. (Plaintiff) (Respondent) – and – JONATHAN SOBERMAN (Defendant) (Appellant)

BEFORE: DOHERTY, MOLDAVER and GILLESE JJ.A.

COUNSEL:

James J. VanWiechen for the appellant

Patrick T. Summers for the respondent

HEARD & ENDORSED: November 9, 2004

On appeal from the judgment of Justice Harriet Sachs of the Superior Court of Justice dated August 5, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant asserts that the trial judge erred in finding that his acceptance of the Commerce Court project was a breach of his fiduciary duty to KJA. We disagree. There was ample evidence upon which the trial judge could conclude, as she did in paras. 41 and 42 of her reasons, that without the knowledge that Mr. Soberman acquired because of his position with KJA, Mr. Ramsey may not have retained Mr. Soberman, and that if Mr. Soberman had not agreed to take over the contract, the client would have stayed with KJA. In these circumstances, we see no error in concluding that Mr. Soberman breached his fiduciary obligation to KJA when he used his knowledge as to pricing and other details of the existing contract between KJA and the client – knowledge acquired because of his position with KJA – to successfully bid for and obtain the work in question.

[2] In respect of the cross‑appeal, we see no error in the trial judge’s findings in relation to the calculation of damages. The determinations were fact-driven and are entitled to deference.

[3] Accordingly, both the appeal and cross-appeal are dismissed. Success being divided, no order as to costs.