Court of Appeal for Ontario

CITATION: Sievert & Sawrantschuk LLP v. Hommel, 2014 ONCA 317

DATE: 20140423

DOCKET: C56918

MacPherson, Blair and Pepall JJ.A.

BETWEEN

Sievert & Sawrantschuk LLP

Plaintiff (Appellant)

and

Boston Hommel

Defendant (Respondent)

AND BETWEEN

Boston Hommel

Plaintiff by Counterclaim (Respondent)

and

Bryon Sievert and Sievert & Sawrantschuk LLP

Defendants to the Counterclaim (Appellant)

Counsel:

J.C. Rioux and John Philpott, for the appellant

Evan L. Tingley, for the respondent

Heard and released orally: April 22, 2014

On appeal from the judgment of Justice James M. Spence of the Superior Court of Justice, dated March 18, 2013.

ENDORSEMENT

[1] The appellant partnership appeals from the March 18, 2013 judgment of Spence J. in which he dismissed the partnership’s action and awarded the respondent’s former partner $80,416.50 in damages plus prejudgment interest on his counterclaim.

[2] The appellant advances three grounds of appeal.

[3] First, the appellant submits that the trial judge erred in his application of the Partnership Agreement when calculating the value of the goodwill attributable to the respondent’s capital account. It is conceded by the appellant that the partnership did not actually apply the language of the relevant provisions of the Partnership Agreement. Based on the record before him and the positions taken by the parties, we see no legal error in the trial judge’s conclusion.

[4] Secondly, the appellant submits that the trial judge erred in concluding that the respondent’s share of the equity of the subsidiaries was not already included in his capital account.

[5] The trial judge relied on the financial statements prepared by the partnership in support of his conclusion and also preferred the respondent’s evidence on this issue to that of the partnership. It was open to him to do so. We see no error in his approach and we would not give effect to this ground of appeal.

[6] Thirdly, the appellant submits that the trial judge erred in calculating the goodwill for clients retained by the partnership.

[7] The standard of review in this regard is palpable and overriding error. Based on the state of the record before him, we are not persuaded that the trial judge erred.

[8] In the circumstances, it is unnecessary to address the respondent’s limitations submission.

[9] The appeal is dismissed. Costs of $10,000 inclusive of disbursements and applicable tax are to be paid by the appellant to the respondent.

“J.C. MacPherson J.A.”

“R.A. Blair J.A.”

“S.E. Pepall J.A.”