DATE: Draft 20050914

DOCKET: C41108

COURT OF APPEAL FOR ONTARIO

RE:

MARTIN MORRIS KATZMAN and SYDNEY KATZMAN (Plaintiffs/Appellants) – and – SYMON ZUCKER and DANSON, ZUCKER & CONNELLY (Defendants/Respondents)

BEFORE:

WEILER, ROSENBERG and GILLESE JJ.A.

COUNSEL:

Steven Bellissimo

for the appellants

Bryan Finlay, Q.C. and Marie-Andrée Vermette

for the respondents

HEARD & RELEASED ORALLY:

September 12, 2005

On appeal from the judgment of Justice Joan L. Lax of the Superior Court of Justice dated November 13, 2003.

E N D O R S E M E N T

[1] At the outset of this appeal, the respondents’ cross appeal on the trial judge’s finding that the respondents were negligent was abandoned. The central issue on this appeal is whether the trial judge made a palpable and overriding error in her finding of fact that the respondents’ negligence caused no actual loss to the appellants.

[2] The appellants submit that the trial judge erred by ignoring relevant evidence when she stated in her reasons that:

There is no credible evidence that the plaintiffs are indebted to their mother and she has made no claim for the return of her funds.

[3] In support of their submission, the appellants rely on the evidence of Martin Katzman and his brother Sidney Katzman at trial. The trial judge did not find Martin Katzman to be a forthright witness. The evidence of Sidney Katzman, to which we were directed, indicates that if there was no settlement of Martin’s bankruptcy proceedings, the money was to be returned to the mother but does not go so far as to say that the money was a loan.

[4] The appellants also rely on the affidavit of Norma Katzman sworn in Martin’s bankruptcy proceeding that she had loaned $300,000 to Martin when he was going to school and that she had not forgiven that debt. The appellants submit that, from this affidavit sworn in another proceeding, with respect to money loaned at a different time, for a different purpose, we should infer that she loaned the money to settle this bankruptcy proceeding and to settle the claim respecting the cottage property.

[5] The trial judge was entitled to conclude that there was no credible evidence supporting the claim that the money provided was a loan. There is no issue that the mother, Norma Katzman made no claim for the return of the funds that she provided to settle Martin Katzman’s bankruptcy in this proceeding nor did she testify at trial.

[6] The alternative claim for damages for fees to defend the criminal charge and for mental distress must fail because nothing Mr. Zucker could have done would have prevented the RCMP from laying charges.

[7] Finally, we see no basis for interfering with the trial judge’s finding that if Zucker had taken the proper steps of either obtaining the releases on behalf of all of the Katzmans or explaining it was impossible to do so, the Katzmans would, in any event, have instructed him to pay the settlement fee in exchange for Martin’s bankruptcy discharge, the dismissal of Norma’s action and the return of the cottage property to Marlene. The trial judge’s conclusion was eminently reasonable and was based on the evidence before her. The evidence shows that the appellants were desperate to settle the matter because of their mother’s fragile state of health.

[8] The trial judge made no palpable and overriding error in finding that the respondents’ negligence caused no actual loss to the appellants.

[9] The appeal is dismissed with costs to the respondents in the amount of $13,386.65 all inclusive.

“K.M. Weiler J.A.”

“M. Rosenberg J.A.”

“E.E. Gillese J.A.”