COURT OF APPEAL FOR ONTARIO

CITATION: Weisberg v. Dixon, 2021 ONCA 491

DATE: 20210706

DOCKET: C68364

Fairburn A.C.J.O., Lauwers and Harvison Young JJ.A.

BETWEEN

Dr. Fay Weisberg and Fay G. Weisberg Medicine Professional Corporation

Plaintiffs (Appellants/ Respondents by way of cross-appeal)

and

Dr. Marjorie Dixon and 2435665 Ontario Inc.

Defendants (Respondents/ Appellants by way of cross-appeal)

Arthur Yallen and James Lawson, for the appellants/respondents by way of cross-appeal

Kevin O’Brien, Lauren Harper and Marleigh Dick, for the respondents/appellants by way of cross-appeal

Heard: June 8, 2021 by video conference

On appeal from the judgment of Justice Shaun S. Nakatsuru of the Superior Court of Justice, dated April 24, 2020, with reasons reported at 2020 ONSC 2536.

REASONS FOR DECISION

Factual Overview

[1] Dr. Fay Weisberg and Dr. Marjorie Dixon are fertility doctors who practised together for a number of years.

[2] While the parties, along with another doctor, were once the officers and directors of First Steps Fertility Inc., that entity was defunct and had not filed income tax returns for some time. Dr. Dixon eventually planned to open a new fertility clinic at a new location.

[3] In September 2014, Dr. Dixon incorporated 2435665 Ontario Inc. with the intention of naming her new fertility clinic “First Steps Reproductive Health”. This clinic was eventually named “Anova Fertility & Reproductive Health”. While she offered Dr. Weisberg the opportunity to invest as a minority shareholder in the new corporation, Dr. Weisberg eventually declined to do so on August 21, 2015.

[4] On October 28, 2015, Dr. Dixon completed and submitted a funding application to obtain lucrative government funding for fertility treatments. Dr. Dixon stated that the name of the fertility clinic applying for funding was “First Steps Reproductive Health”. Therefore, the funding application was made for Dr. Dixon’s new fertility clinic. In that funding application, Dr. Dixon made reference to Dr. Weisberg and her experience and Electronic Medical Records data. While Dr. Weisberg testified at trial that she was unaware that Dr. Dixon had received and filled out the funding application until the day it was due and that she did not know that the application was filled out on behalf of the new fertility clinic, the trial judge rejected her evidence on this point, preferring the evidence of Dr. Dixon.

[5] As well, although Dr. Weisberg testified that she never intended to move to the new location, the trial judge rejected her evidence on this point, instead finding that, while she was originally intending to move to the new location at the time of the preparation of the funding application, she changed her mind soon after receiving Dr. Dixon’s draft “Senior Associate Agreement” on January 20, 2016. This Agreement placed Dr. Dixon as the principal physician of the new fertility clinic, while Dr. Weisberg would be an associate. It also contained terms that Dr. Weisberg found to be “insulting”. On February 4, 2016, Dr. Weisberg informed Dr. Dixon that she would not be moving to the new fertility clinic. That conversation led to the breakdown of their professional relationship.

[6] Dr. Weisberg sued Dr. Dixon, claiming that Dr. Dixon had filled out the government funding application without her knowledge, thereby depriving her of that funding. She said that this constituted a breach of fiduciary duty. Dr. Weisberg also claimed that Dr. Dixon was unjustly enriched by her actions. In lengthy and considered reasons, rooted squarely in factual findings linked to credibility assessments, the trial judge rejected Dr. Weisberg’s arguments and dismissed the action.

Analysis

[7] First, this appeal is predicated largely on objections to the trial judge’s findings of fact. According to Dr. Weisberg, the trial judge made numerous palpable and overriding errors in his factual determinations regarding the alleged fiduciary duty and unjust enrichment. We do not intend to explore every factual issue raised. In our view, Dr. Weisberg is attempting to relitigate the factual issues that were live before the trial judge, issues that he directly confronted and resolved. The trial judge’s factual findings are grounded in the evidence and solid assessments of credibility. As the trial judge said, he was “not able to accept [Dr. Weisberg’s] testimony on the key factual matters where it differed from Dr. Dixon.”

[8] It is not for this court to revisit those credibility assessments or factual conclusions. We have been shown no basis upon which to do so. Simply put, there are no palpable and overriding errors in the trial judge’s factual findings.

[9] Second, Dr. Weisberg maintains that the trial judge erred by finding that Dr. Dixon did not owe her a fiduciary duty. We see no error in the trial judge’s approach to this issue. He correctly concluded that one of the fundamental prongs of a fiduciary relationship – “an undertaking by the alleged fiduciary to act in the best interests of the beneficiary” – was absent: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 36. On the evidence and the factual conclusions reached by the trial judge, the absence of an express undertaking or even an implied undertaking was fatal to the claim. Moreover, even if a fiduciary duty existed, Dr. Dixon did not breach that duty because, based on the trial judge’s factual conclusions, Dr. Dixon acted honestly and did what the parties agreed to do regarding the funding application.

[10] Third, and finally, in claiming that Dr. Dixon was unjustly enriched by her actions at Dr. Weisberg’s expense, Dr. Weisberg argues that the trial judge erred by concluding that there was a juristic reason for Dr. Dixon’s enrichment. The difficulty with this argument is that the trial judge concluded that Dr. Dixon filled out the application for government funding in an honest way, in accordance with the agreement of the parties. Specifically, the trial judge found as a fact that at the relevant time the funding application was made, Dr. Weisberg had agreed to move to the new fertility clinic at the new location, where she would benefit from the funding. It was only later that Dr. Weisberg changed course on this decision.

[11] Therefore, we see no error in the trial judge’s approach to this issue, simply returning to the trial judge’s finding, as supported by the evidence, that Dr. Weisberg’s ultimate exclusion from the funding arose from decisions she made before and after the funding had been obtained: she declined to invest as a minority shareholder in Dr. Dixon’s new corporation on August 21, 2015; and she ultimately decided not to move to the new fertility clinic on February 4, 2016.

[12] It was open to the trial judge to find, based upon the factual backdrop at trial, that Dr. Dixon met her onus in establishing a juristic reason for her enrichment. As the trial judge said: “morally, Dr. Dixon’s claim to the enrichment is not at all tenuous. There is no wrong-doing by her that she is profiting from. It was effectively decisions made by Dr. Weisberg that have led to the situation where she is unable to access [the] funding”.

[13] In light of our conclusions on the previous points, there is no need to address the alleged errors in the trial judge’s assessment of damages, an assessment he gave in the alternative should he have been found to have erred in dismissing the claim. We have concluded that he did not err, and so there is no need to reach the issues regarding damages. This is equally true as it relates to the cross-appeal, which need not be addressed.

Disposition

[14] The appeal is therefore dismissed.

[15] Costs will be paid to the respondents in the agreed upon amount of $15,000, inclusive of disbursements and applicable taxes.

“Fairburn A.C.J.O.”

“P. Lauwers J.A.”

“A. Harvison Young J.A.”