COURT OF APPEAL FOR ONTARIO
DATE: 20060929
DOCKET: C45065
RE: DR. SUKHDEV SINGH KOONER, RANJIT BHAMRA, BALBIR BHAMRA and MALKIAT PABLA (Plaintiffs (Respondents)) v. AVTAR KOONER, ARTHUR WEINGARDEN, RAPHAEL PARTNERS LLP, MAX WEINGARDEN, WEINGARDEN INVESTMENTS LIMITED, 770137 ONTARIO INC., TONY AZAR and EDWARD AZAR (Defendants (Appellant: Avtar Kooner))
BEFORE: DOHERTY, SIMMONS and ROULEAU JJ.A.
COUNSEL: Gino Morga, Q.C. for the appellant Allan Rock, Q.C. for the respondents
HEARD & ENDORSED: September 27, 2006
On appeal from the judgment of Justice John H. Brockenshire of the Superior Court of Justice dated February 22, 2006.
A P P E A L B O O K E N D O R S E M E N T
[1] The appellant alleges several factual errors. We reject the claim that the trial judge erred in describing the mortgages placed by the appellant as providing for compound interest upon default. The other alleged errors are not material to the issues raised on appeal.
[2] The motion judge may have spoken too broadly in suggesting that compound interest should be granted almost as a matter of course in commercial matters (see para. 27). However, the facts of the case which involve a breach of trust and fiduciary duty bring this case squarely within the principles enunciated in Brock v. Cole (1983), 40 O.R. (2d) 97 (C.A.), cited with approval in Bank of America Canada v. Mutual Trustco, 2002 SCC 43, [2002] 2 S.C.R. 601. An award of compound interest was fully warranted by way of an exercise of the court’s equitable jurisdiction. That jurisdiction is recognized by s. 128(4)(g) of the Courts of Justice Act.
[3] The appeal is dismissed. We see no basis to doubt the validity of the costs order. Leave to appeal costs is refused.
[4] Costs of the appeal to the respondent fixed in the amount of $6,000, inclusive of GST and disbursements.