CITATION: Barkacin v. Wasiak, 2009 ONCA 807

DATE: 20091112

DOCKET: C49949

COURT OF APPEAL FOR ONTARIO

Goudge, MacPherson and Blair JJ.A.

BETWEEN:

Kirkor Barkacin

Plaintiff (Respondent)

and

Grazyna Wasiak

Defendant (Appellant)

R. Breedon, for the appellant

F. Mendes, for the respondent

Heard: November 10, 2009

On appeal from the judgment of Justice D.J. Gordon of the Superior Court of Justice, dated December 31, 2008.

APPEAL BOOK ENDORSEMENT

[1] In our view a fair reading of the trial judge’s finding about the phone call that is central to the appellant’s submissions is that he accepted the respondent’s evidence about what he said, in preference to Ms. Borjkovic’s version, particularly in light of the respondent’s subsequent confirmatory conduct, and in the context of the balance of the remaining evidence. This finding was entirely open to the trial judge, and we would not interfere with it. On the entirety of the evidence, we find the trial judge’s conclusion that the established practice of the parties concerning lottery tickets, and the nature of their relationship meant that they were to share this prize equally to be entirely reasonable.

[2] The appeal is dismissed.

[3] Costs to the respondent of $10,000 all inclusive.