CITATION: Davidson v. Lee, Roche and Kelly, 2008 ONCA 373
DATE: 20080512
DOCKET: C46227
COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O., WATT J.A. AND HACKLAND J. (AD HOC)
BETWEEN:
DONALD DAVIDSON
Plaintiff (Appellant)
And
LEE, ROCHE AND KELLY
Defendant (Respondent)
Annette A. Casullo for the appellant
J. Daniel Dooley for the respondent
Heard: April 28, 2008
On appeal from the judgment of Justice Robert N. Weekes of the Superior Court of Justice dated October 17, 2006.
ENDORSEMENT
[1] The appellant sued his former solicitor for negligence because the solicitor had failed to raise with the appellant and his wife a significant discrepancy between their understanding of the terms upon which they were to be paid for the sale of their taxi business and the actual terms for payment contained in the sale agreement and related promissory note. The trial judge found that the appellant had established the negligence alleged.
[2] The appellant claimed as damages the difference between the amount of interest he and his wife expected to receive, according to their understanding of the agreement and the amortization schedule provided by their solicitor, and the amount they actually received under the terms included in the agreement and promissory note. The difference was $27,143.07.
[3] The trial judge concluded that the appellant had not proven the damages claimed. The essence of the trial judge’s reasoning for rejecting the claim for damages appears in the following paragraphs of his reasons:
[20] I am not persuaded that that figure is the measure of Mr. Davidson’s damages. This is because I do not doubt Mr. Peake’s evidence that he would never have agreed to pay the interest which the Davidsons believed he had agreed to pay.
[21] If the Agreement had not been completed the Davidsons would have been left with the taxi business. It was apparently a successful business which the Davidsons had no intention of selling before they were approached by Mr. Peake. However, there is no evidence before me which would enable me to conclude that Mr. Davidson is worse off receiving $140,000.00 as a result of selling the business with a cap on the interest than he would have been had the business not been sold. Accordingly, although I am satisfied that Mr. Kelly was negligent, damages have not been proven.
[4] We agree with the trial judge that the appellant failed to establish the damages claimed.
[5] The solicitor’s negligence resulted in the appellant and his wife completing a transaction, the sale of their taxi business, that they would have avoided had the solicitor told them that they would not receive more than $4600 in interest payments under the agreement and note. The respondent was responsible for compensating the appellant and his wife for the loss they suffered as a result of completing the sale transaction. But the appellant did not prove that he had suffered a loss. Without the solicitor’s negligence there would not have been a sale.
[6] The appellant did not call any evidence to establish that the business, at the time of its sale, was worth more than the amount the appellant received from the purchaser. In the result, the record is barren of any evidence that the solicitor’s negligence caused any loss to the appellant. Proof of damages is an essential element in any claim for negligence. Nespolon v. Alford (1998), 1998 CanLII 7127 (ON CA), 40 O.R. (3d) 355 (C.A.) leave to appeal refused [1999] 1 S.C.R. xi.
[7] For these reasons, the appeal is dismissed.
[8] The trial judge made no order as to costs. No appeal was taken from that disposition. We fix the costs of this appeal payable to the respondent at $3,000 inclusive of disbursements and GST. The respondent may well choose not to enforce this costs award in its favour in the most unusual circumstances of this case.
“D. O’Connor A.C.J.O.”
“David Watt J.A.”
“Charles Hackland J. (ad hoc)”