CITATION: O’Neil v. Evon, 2007 ONCA 168

DATE: 20070314

DOCKET: C44306

COURT OF APPEAL FOR ONTARIO

RE:

MICHAEL SEAN O’NEIL and ANGELA MARIE BEIKO (Applicants (Appellants)) – and – WILLIAM STEVEN EVON and SHERRY ELIZABETH McCORMICK (Respondents

(Respondents))

BEFORE:

FELDMAN, SHARPE AND SIMMONS JJ.A.

COUNSEL:

Daniel G. Katzman

for the appellants

James Branoff

for the respondents

HEARD:

March 12, 2007

On appeal from the judgment of Justice Richard C. Gates of the Superior Court of Justice dated September 9, 2005.

E N D O R S E M E N T

[1] The trial judge made an explicit finding that the true intention of the parties at all times was that Evon would be reimbursed not only for the appellants' portion of the interest on the monies he (Evon) borrowed but also for the appellants' portion of the principal. The trial judge's finding was premised on his assessment of the parties' credibility and in particular his conclusion that O'Neil advanced the particulars of certain claims after the fact for the purpose of enhancing his case. While it may have been open to the trial judge to reach a different conclusion concerning O'Neil's credibility, we are not persuaded that the trial judge committed reversible error in making the finding that he did.

[2] Although we agree that the June 5, 2003 letter would have been properly admissible and that the doctrine of contra proferentem was not applicable, we are not persuaded that these errors made any material difference to the crucial issue of the trial judge's assessment of credibility.

[3] Finally, on the facts of this case, we consider that it was open to the trial judge to attribute Evon's intention to McCormick.

[4] Accordingly, the appeal is dismissed with costs to the respondent fixed at $7500.00 on a partial indemnity scale inclusive of disbursements and applicable G.S.T.

“K. Feldman J.A.”

“Robert Sharpe J.A.”

“Janet Simmons J.A.”