Court of Appeal for Ontario

Citation: Rasmussen v. H.R. Trucking Inc., 2008 ONCA 540

Date: 20080704

Docket: C46264

Before: DOHERTY, ARMSTRONG and MACFARLAND JJ.A.

Between:

Harvey Rasmussen Plaintiff (Appellant)

and

H.R. Trucking Inc., Roderick Laufer, also known as Rick Laufer, Dennis Middlebrook, Turning Point Farms, TPF Livestock Bedding Ltd., Adrienne Rowland, Paul Demelo and Keyser, Mason, Ball Defendants (Respondents)

Counsel: Richard E. Anka, Q.C. for the appellant Andrew Heal for the respondents, Rowland and TPF Livestock Bedding Ltd. Sean Dewart and Charles Sinclair for the respondents, Demelo and Keyser, Mason, Ball

Heard: June 26, 2008

On appeal from the judgment of Justice John R.R. Jennings of the Superior Court of Justice dated October 26, 2006.

APPEAL BOOK ENDORSEMENT

I. The Claim Against the Solicitor

[1] Counsel for the appellant accepts the trial judge’s findings of fact and credibility. That concession was entirely appropriate. There are no grounds upon which this court could exercise its narrow power to interfere with those findings.

[2] The trial judge made strong findings of credibility and fact. Virtually all were against the appellant insofar as they related to the claim he advances against the solicitor (respondent). There were other claims advanced. On the those findings, which we note were also supported by the expert evidence accepted by the trial judge, his ultimate conclusion (para. 91) is unassailable on appeal.

[3] This ground fails.

II. The Claims Against Rowland and Turning Point Farms

[4] To the extent that the submissions of the appellant depend on the appellant’s claim that Rowland was a “purchaser”, this submission must fail. The statement of claim does not allege that Rowland was a purchaser. It was not argued at trial that she was a purchaser and the trial judge finds that she was at most “a creditor or an investor”.

[5] The claim predicated on a vendor’s lien also fails. When the bank exercised its security, any lien the vendor might have had was extinguished and in any event would be subsequent in priority to the bank’s interest. Rowland acquired the bank’s interest when she purchased the property from the bank.

III. Costs

[6] There was an evidentiary basis for the finding made by the trial judge in para. 9 of the costs endorsement. On that characterization of the attack on the respondent’s character and honesty, it was within the trial judge’s discretion to award substantial indemnity costs.

IV. Conclusion

[7] The appeal is dismissed. Leave to appeal costs is granted but the appeal is dismissed.

[8] Costs of the appeal to Demelo fixed at $20,000 and costs of the appeal to Rowland fixed at $9,200, all inclusive of disbursements and GST.