Court File and Parties
COURT FILE NO.: 810/01
DATE: 20030121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BLAIR R.S.J., LANE AND CAPUTO JJ.
B E T W E E N:
STEPHEN SCHWARTZ
Plaintiff
- and -
TONY CHAO, PETER CHAO and ASIA FOODS CORPORATION LIMITED
Defendants
Irving Rosenberg, for the Respondent
Tony Chao, In Person
HEARD: January 21, 2003
Oral Reasons for Judgment
BLAIR R.S. J.: (Orally)
[1] Tony and Peter Chao and their corporation, Asia Foods Corporation Limited, appeal from the judgment of Mesbur J., dated December 3, 2001. In that decision, Justice Mesbur granted judgment in favour of the plaintiff for $7,000 and costs.
[2] Mr. Tony Chao argued the appeal for the appellants. He makes essentially four submissions, namely:
(i) that the trial judge erred in granting judgment because the plaintiff did not describe himself with his full name, Stephen A. Schwartz, in the statement of claim and the defendants did not know who was suing them;
(ii) that there was no agreement as alleged by Mr. Schwartz;
(iii) that there was no evidence Mr. Schwartz was the owner of the monies in question and,
(iv) that Mr. Schwartz was an officer of the Corporation, its lawyer and the lawyer for the two Chao brothers and breached his fiduciary and professional obligations in suing them.
[3] There is no merit in any of these submissions. Mr. Schwartz testified. He gave evidence that he is the plaintiff and that he had made an agreement with the defendant Tony Chao that he, Mr. Chao would hold the sum of $7,000 to be received by Mr. Schwartz in trust and that the monies would be deposited in a dormant account of Asia Foods for this purpose. This was done.
[4] Tony Chao did not testify. Peter Chao did testify but there was no evidence given to contradict Mr. Schwartz's testimony.
[5] The trial judge found as a fact that the defendants knew Mr. Schwartz, the plaintiff, and knew precisely who they were being sued by. She accepted that Mr. Schwartz caused the cheque to be deposited and found on the evidence before her that Mr. Schwartz was the beneficial owner of the funds and that there was an oral agreement between him and the defendant Tony Chao that Mr. Chao would hold the funds in trust for Mr. Schwartz and that Mr. Schwartz could deposit the money in the Asia Foods account where they would be held in trust. As noted the defendants did not testify to put their version of the story before the trial judge. Mr. Schwartz did. There was ample evidence to support the trial judge's findings and we cannot interfere with them. Nor can we conclude that there was any breach of fiduciary duty or professional obligations on the part of Mr. Schwartz. Certainly officers of corporations and lawyers owe a fiduciary duty to their clients in general but it does not follow that if a fiduciary duty arises in every situation.
[6] Here, there was no fiduciary duty between the parties that precluded Mr. Schwartz and Mr. Tony Chao from entering into the agreement in question and utilizing the corporation's account to put it into effect. It was a simple case of contract. Nor was there any breach of professional obligations by Mr. Schwartz on the evidence before the trial Judge.
[7] We can find no error on the part of the trial judge; the appeal is therefore dismissed. I have endorsed the record as follows: "For oral reasons delivered by Blair R.S.J., the appeal is dismissed. The respondent is entitled to its costs of the appeal, fixed at $2,000 plus GST."
BLAIR R.S. J.
LANE J.
CAPUTO J.
Date of Reasons for Judgment: January 21, 2003
Date of Release: January 27, 2003
COURT FILE NO.: 810/2001
DATE: 20030121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BLAIR R.S.J., LANE AND CAPUTO JJ.
B E T W E E N:
STEPHEN SCHWARTZ
Plaintiff
- and -
TONY CHAO, PETER CHAO and ASIA FOODS CORPORATION LIMITED
Defendants
ORAL REASONS FOR JUDGMENT
BLAIR R.S. J.
Date of Reasons for Judgment: January 21, 2003
Date of Release: January 27, 2003