Cressman, Foster Health Facility Inc. v. Furniss, 2008 ONCA 729

CITATION: Cressman, Foster Health Facility Inc. v. Furniss, 2008 ONCA 729

DATE: 20081024

DOCKET: C46394

COURT OF APPEAL FOR ONTARIO

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN:

Cressman, Foster Health Facility Inc. and Carol Cressman Foster

Plaintiffs (Appellants/Respondents by Cross-Appeal)

and

Monica Furniss

Defendant (Respondent/Appellant by Cross-Appeal)

AND BETWEEN:

Monica Furniss

Plaintiff by Counterclaim (Respondent/Appellant by Cross-Appeal)

and

Cressman, Foster Health Facility Inc., Carol Cressman Foster and Carol Cressman Foster, Litigation Administrator of the Estate of Peter Foster, deceased

Defendants by Counterclaim (Appellants/Respondents by Cross-Appeal)

Paul D. Amey and Heather A. Hall for the appellants

G. Edward Oldfield and Jennifer Breithaupt for the respondent

Heard and released orally: October 22, 2008

On appeal from the judgment of Justice P.B. Hambly of the Superior Court of Justice dated November 16, 2006.

ENDORSEMENT

[1] The parties, Carol Cressman Foster and Monica Furniss, along with Ms. Cressman Foster’s husband Peter Foster, who died on March 10, 2001 after a tragic accident at his farm, were involved in an optometry practice in Kitchener. After Dr. Foster died, the two remaining optometrists could not get along together. On December 15, 2001, Dr. Furniss left the practice and started a new practice about five kilometres away.

[2] Unfortunately, the rupture in the practice provoked wide-ranging and acrimonious litigation between Dr. Cressman Foster and Dr. Furniss. Following a 29 day trial, Hambly J. upheld claims by each party against the other. He also awarded damages to each party, with the ultimate result being a net award of $6,000 to Dr. Cressman Foster. He declined to award costs to either party.

[3] Again unfortunately, the parties decided not to accept the ‘draw’ the trial judgment essentially established. Both parties appealed the judgment on a variety of grounds.

Dr. Cressman Foster’s appeal

[4] The trial judge held that there was an “income partnership” among Dr. Foster, Dr. Cressman Foster and Dr. Furniss from September 1, 1999 to Dr. Foster’s death in March 2001. Dr. Cressman Foster contests this finding. She contends that there was never a partnership involving the three optometrists.

[5] Although a full-equity partnership agreement with an effective date of September 1, 1999, which was being negotiated, was not signed before Dr. Foster’s death, we see nothing wrong with the trial judge’s comprehensive analysis of the many factors that cumulatively led him to conclude that an “income partnership” existed throughout the relationship. In our view, on this record, it was open to the trial judge to conclude that the actual business relationship among the three practitioners bore the indicia of an income partnership, although this term was not used by the parties. The absence of a signed partnership agreement in this case is not fatal to the existence of a form of partnership – an income partnership.

[6] Contrary to Dr. Cressman Foster’s submission, this is not a case where the trial judge determined liability on a basis neither supported by the evidence nor developed at trial. Unlike the authorities relied on by Dr. Cressman Foster, the central issue in this case was clear from the outset and throughout the entire proceeding: what was the nature of the relationship among the parties? The parties led evidence and made submissions at trial accordingly.

[7] Dr. Cressman Foster also appeals the ‘no costs’ award of the trial judge. This is a contingent ground of appeal that would flow from success on the partnership issue. Accordingly, it cannot succeed.

Dr. Furniss’ cross-appeal

[8] Dr. Furniss contends that the partnership continued after March 10, 2001 and became an equal partnership between her and Dr. Cressman Foster, entitling her to profits, as well as present and future income. She says that her damages should have been around $600,000.

[9] We disagree. The trial judge’s conclusion that the partnership ended with Dr. Foster’s death on March 10, 2001 is amply supported by the evidence he reviewed. Hence Dr. Furniss’ claim for present and future income could not be sustained. As well, the trial judge’s description of the partnership from September 1, 1999 to March 10, 2001 as an “income partnership” is, as discussed above, supportable on the record.

[10] Dr. Furniss contends that the trial judge erred by finding that she defamed Dr. Cressman Foster and in awarding general damages of $35,000 and aggravated damages of $20,000 to Dr. Cressman Foster.

[11] We disagree. Dr. Furniss’ unfortunate statements about Dr. Cressman Foster were clearly defamatory in that they were false and intended to damage her reputation. Moreover, the general damages award is entitled to deference in light of the trial judge’s full review of the relevant factors. The same can be said of the award for aggravated damages that flowed from an entirely supportable finding that Dr. Furniss’ statements were motivated by malice towards Dr. Cressman Foster. We note that Dr. Furniss pleaded that the statements at issue were true. At trial, she maintained this position and in fact denied many of the statements alleged. In these circumstances, given the trial judge’s finding of actual malice, the aggravated damages award is unassailable.

[12] Finally, Dr. Furniss appeals the no costs order of the trial judge on the basis that he did not take proper account of her offer to settle. We disagree. In our view, the trial judge considered Rule 49.10 in a proper fashion and made a fair costs order in light of the divided success in a very long trial.

[13] The appeal and the cross-appeal are dismissed. No costs on the appeal or the cross-appeal.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”