Court of Appeal for Ontario
Citation: 2014 ONCA 413 Date: 2014-05-21 Docket: C57602
Before: Weiler, Hourigan and Pardu JJ.A.
Between
JBN Medical Diagnostic Services Inc., Jojaz Holdings Inc. and William Nisker Holdings Inc. Plaintiffs (Respondents)
and
1527877 Ontario Inc., 1449312 Ontario Inc., Fausto Carnicelli, Werner Dingfeld, Halton Family Health Centre Inc. and Stresa Gruppo Inc. Defendants (Appellants)
And Between
1449312 Ontario Inc., Fausto Carnicelli, Werner Dingfeld, Halton Family Health Centre Inc. And Stresa Gruppo Inc. Plaintiffs by Counterclaim (Appellants)
and
JBN Medical Diagnostic Services Inc., Jojaz Holdings Inc., William Nisker Holdings Inc., Joseph Berlingieri and William Nisker Defendants by Counterclaim (Respondents)
Counsel: Howard W. Reininger, for the appellants Stuart M. Law, for the respondents
Heard: May 14, 2014
On appeal from the judgment of Justice Robert J. Nightingale of the Superior Court of Justice, dated August 21, 2013.
Endorsement
[1] This appeal concerns the interpretation of a settlement agreement that resulted from a lawsuit about the personal appellants’ misappropriation of a business they owned jointly with the respondents. In accordance with the settlement agreement, the respondents obtained an accounting that indicated that the appellants owed an additional $528,113. The appellants disputed this accounting. As a result, the respondents brought a motion seeking an order that the appellants pay this amount under the settlement agreement. In the court below, Nightingale J. found in favour of the respondents and ordered the appellants to pay the additional $528,113 and partial indemnity costs for the entirety of the proceedings. The appellants now appeal.
[2] The appellants’ grounds of appeal relate to the motion judge’s acceptance of the evidence from the respondents’ expert, an accountant named Mr. Mastroluisi. The appellants submit that the motion judge erred in finding there are additional monies owing to the respondents for:
- management fees,
- professional fees,
- benefits when payments were made by Halton Financial Health (HFH) from loans to HFH from the appellants.
[3] In addition the appellants submit that the motion judge’s costs award should be varied and that the costs allowed for the expert should be varied as well.
[4] We would not give effect to any of the appellants’ arguments. The issues raised are factual issues and deference is owed to the trial judge’s findings. The appellants’ submissions focus entirely on the alleged partiality of Mr. Mastroluisi and alleged frailties with his evidence. The appellants did not object to the admissibility of Mr. Mastroluisi’s report in the court below. While the appellants complain that the requirements of r 53.03(1) of the Rules of Civil Procedure concerning the admissibility of Mr. Mastroluisi’s report were not met, given that there was no objection to the admissibility of the report, the rule has no applicability here. The motion judge devoted considerable attention to assessing Mr. Mastroluisi’s credentials. Mr. Mastroluisi’s report was the only expert report adduced on the motion. The appellants chose not to file any expert report. The motion judge had a discretion as to how much weight to give to Mr. Mastroluisi’s report. He exercised that discretion and the appellants have not shown any error in principle on the part of the motion judge. The motion judge did not err in preferring Mr. Mastroluisi’s evidence to the evidence of Mr. Dingfeld, an interested party. The motion judge’s conclusions of fact are entitled to deference in the absence of palpable and overriding error. The appellants have in essence reargued the motion before us and have not pointed to any palpable and overriding error on the part of the motion judge. Similarly, the motion judge made no error in his award with respect to costs or expert fees.
[5] Accordingly the appeal is dismissed. Costs of the appeal are to the respondents fixed in the amount of $18,000 inclusive of all disbursements and applicable taxes.
“Karen M. Weiler J.A.” “C.W. Hourigan J.A.” “G. Pardu J.A.”