Miller v. Taylor, 2010 ONCA 268

CITATION: Miller v. Taylor, 2010 ONCA 268

DATE: 20100413

DOCKET: C49810 and M38652

COURT OF APPEAL FOR ONTARIO

Goudge, MacFarland and LaForme JJ.A.

BETWEEN:

Suzanne Miller

Applicant (Respondent)

and

Kevin Taylor

Respondent (Appellant)

P. Summers, for the appellant

Joyce Harris, for the respondent

Heard and released orally: April 1, 2010

On appeal from the judgment of Justice Sarah Pepall of the Superior Court of Justice dated November 28, 2008.

ENDORSEMENT

The Fresh Evidence Motion

[1] The appellant seeks to tender fresh evidence on this appeal consisting of the transcript of the sentencing hearing of James Martin. Mr. Martin was called as a fact witness by the respondent, to give evidence about the rates he was aware of for servicing ATM machines. The fresh evidence is said to go to the issue of the compensation owed to the appellant.

[2] The trial judge accepted Mr. Martin’s evidence as the most reliable basis on which to measure the appellant’s contribution requiring compensation. She rejected the evidence offered by the appellant on the same subject for clearly expressed reasons that have nothing to do with Mr. Martin.

[3] In our view, while the fresh evidence could be said perhaps to be marginally relevant to the issue of compensation owed to the appellant, it could have no effect on the conclusion reached by the trial judge on this issue. The transcript is about Mr. Martin’s fraudulent raising of money from investors. It is not about the rates charged for servicing ATMs which was the subject of Mr. Martin’s evidence at trial.

[4] Moreover at trial, it was clear that Mr. Martin had experience in servicing ATMs beyond the machines for which he sought investors. This provided the experience in charging for servicing, about which he testified.

[5] The motion to admit fresh evidence is dismissed. There is therefore no need for an adjournment.

The Appeal

[6] On the appeal itself, the appellant’s primary argument is that the trial judge misapprehended the evidence in deciding the compensation owed to him. We do not agree. The trial judge was clearly aware of the various financial dealings between the parties. In concluding that, all things considered, the appellant was owed nothing more for the services he performed, she did not purport to apply a mathematical formula. Rather she concluded that in all the circumstances the appellant could not fairly be said to deserve any further compensation. That was her conclusion to draw. In coming to it there is no basis to find that she misapprehended the evidence.

[7] The appellant also challenges the trial judge’s finding on interest. In our view, there was ample evidence to sustain her determination that the loans in question were from the respondent to the appellant and therefore that he, not the company owed the interest. There is no basis for us to interfere with that finding.

[8] The appellant also challenges the trial judge’s application of the Partnership Act. Again, we see no error. There was much evidence to sustain her conclusion.

[9] Finally, we see no basis to interfere with her award of costs. The trial judge was well within her discretion, given the appellant’s conduct and his approach to the trial, to decide as she did.

[10] The appeal is dismissed. Costs to the appellant fixed at $15,000, inclusive of disbursements and GST.

“S.T. Goudge J.A.”

“J. MacFarland J.A.”

“H.S. LaForme J.A.”