Court of Appeal for Ontario

CITATION: Wright v. Holmstrom, 2016 ONCA 360

DATE: 20160512

DOCKET: C60391

Strathy C.J.O., MacFarland and Brown JJ.A.

BETWEEN

Alexander James Wright

Applicant (Appellant)

and

Candice Anne Holmstrom

Respondent (Respondent in Appeal)

Jeanie DeMarco, for the appellant

Susan Adam Metzler, for the respondent

Heard: May 10, 2016

On appeal from the judgment of Justice Victoria Rose Chiappetta of the Superior Court of Justice, dated March 24, 2015.

ENDORSEMENT

[1] This appeal is entirely fact-based. The appellant identifies no error of law. Instead, he asks this court to re-assess and re-weigh the evidence at trial concerning his interest, if any, in the Neville Park Boulevard house.

[2] The appellant’s claim to a half interest was undocumented. As the trial judge noted, the resolution of his claim required her to make findings of fact based on conflicting evidence. This, in turn, called for the assessment of the credibility of the parties in the context of all the evidence, documentary and testimonial.

[3] Having heard and seen the evidence of the witnesses, particularly the parties themselves, and having considered the extensive, but far from definitive, documentary record, the trial judge rejected the appellant’s evidence in support of his claim to an interest in the home. She found his evidence incredible, contrived and illogical. She recognized that there were inaccuracies and inconsistencies in the respondent’s evidence, but ultimately accepted her explanations and her evidence that the appellant’s payment of $130,000 to her was a gift.

[4] The appellant submits we should come to come to different conclusions. In his factum and counsel’s submissions he points to bits and pieces of evidence which he says supported his position and were ignored, misunderstood or misapprehended by the trial judge. We do not accept these submissions. The trial judge considered and evaluated all the evidence, weighed the evidence on both sides, and found the respondent’s evidence credible and the appellant’s evidence incredible. She performed her task and, absent palpable and overriding error, her decision is entitled to deference.

[5] The appellant identifies two principal errors which he says were overriding, in the sense that they affected the outcome. First, he says that the respondent’s lawyer’s file is strong evidence in support of his version of the facts and against the respondent’s. We disagree. The file establishes, at best, that at one time the respondent may have contemplated that the appellant would acquire an interest in her house. But the respondent’s evidence, which the trial judge accepted, was that the appellant gave the money to her as a gift. This finding was clearly open to the trial judge and it is not inconsistent with the evidence in the lawyer’s file.

[6] The second alleged error was that the trial judge should not have rejected the appellant’s evidence on the origin of the “Declaration of Shared Ownership” and should not have found that he created the document only for the purpose of the lawsuit, in an unsuccessful attempt to corroborate a story that was not believable. The trial judge articulated a number of reasons why she rejected the appellant’s evidence on this issue. We see no error in her reasoning.

[7] We do not find it necessary to review any of the other alleged errors identified by the appellant. None of them, individually or collectively, come close to being dispositive. The trial judge gave ample reasons for rejecting the appellant’s evidence and for accepting the respondent’s, not the least of which was the implausibility of the appellant’s explanation of why his alleged interest in the home was undocumented.

[8] For the same reasons, we find that the appellant has identified no error in the trial judge’s conclusions on the breach of trust claim. Those conclusions, set out at paras. 86-91 of her reasons, were open to her.

[9] Nor would we interfere with the order that the appellant pay $3,000 for the damage he caused to the Neville property. That claim was plainly before the trial judge and was supported by the evidence, including the appellant’s own written acknowledgment.

[10] We also see no basis on which to interfere with the trial judge’s exercise of her discretion to award no costs. She observed that success was divided on the several issues before her, each party had made unfounded allegations against the other and each had engaged in misconduct in the course of the proceedings. She considered the relevant factors and her decision is entitled to deference.

[11] The appeal is therefore dismissed.

[12] The appellant stated that she did not intend to pursue the cross-appeal if the appeal was dismissed. Accordingly, the cross appeal is dismissed as abandoned.

[13] The respondent is entitled to her costs of the appeal, fixed in the amount of $17,776.93, inclusive of disbursements and all applicable taxes. We see no reason to make any reduction to account for the dismissal of the cross-appeal.

“G.R. Strathy C.J.O.”

“J. MacFarland J.A.”

“D.M. Brown J.A.”