COURT FILE NO.: 561/06
DATE: 20080917
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., LEDERMAN AND KARAKATSANIS JJ.
B E T W E E N:
ALFIERI COGLIANO and I.C.M. MECHANICAL LIMITED
Respondents
(Plaintiffs)
- and -
SURYA PATEL and 1595759 ONTARIO LIMITED
Appellants
(Defendants)
Aliamisse O. Mundulai, for the Respondents (Plaintiffs)
Yadvinder Singh Toor, for the Appellants (Defendants)
HEARD at Toronto: September 17, 2008
THEN R.S.J.: (Orally)
[1] The appellant submits that the trial judge made findings of credibility and findings of fact not supported by the evidence. The appellant pointed to a number of findings that he said were based upon the trial judge misreading or misinterpreting the evidence.
[2] The issue before us is whether the trial judge made a palpable or overriding error. This was an oral contract. The trial judge, having heard the evidence, was unable to conclude what the original terms were based upon difficulties with the evidence of both the plaintiff and the defendant. However, she accepted the evidence of Mr. Cogliano which, in effect, is summarized at page 35 of the transcript where he stated:
“He came to my house, and we spent a long time in my office to go through everything what I done, what I spent. He had no objection whatsoever at the time.”
[3] The decision came down to what occurred at this meeting in March concerning the settling of accounts. In that respect, she accepted the evidence of the respondent that the appellant had no objection to the two invoices presented for both inside and outside work.
[4] We do not accept that the trial judge either misread or misinterpreted the evidence.
[5] The record illustrates that she was alive to the inconsistencies in the evidence of the respondent. She observed that neither of the appellant or his wife took any steps either by telephone or writing immediately after the March meeting to object to the reasonableness of the accounts. Moreover, she had the opportunity to observe the witnesses.
[6] Findings of credibility are within the purview of the trial judge, and in our view, there was evidence to support her findings of fact.
[7] Accordingly, we see no palpable or overriding error committed by the trial judge and the appeal therefore must be dismissed.
COSTS
[8] I endorse the Appeal Book and Compendium to read as follows: “This appeal is dismissed for oral reasons delivered this day. The respondent seeks costs for fees and disbursements in the amount of $7,302.00. We have taken into account the factors outlined in Rule 57.01(1). In our view, the time for preparation was somewhat excessive. Also, we note that a motion to dismiss for delay was brought by the respondent and lost. Costs were reserved to this panel. Finally, counsel for the respondent was late in arriving for this appeal. While the delay was explained, counsel for the appellant was required to attend for the entire day. Taking into account all of these matters, we are of the view that it is fair and reasonable to award costs in the amount of $2,000.00 for fees and disbursements.”
THEN R.S.J.
LEDERMAN J.
KARAKATSANIS J.
Date of Reasons for Judgment: September 17, 2008
Date of Release: September 24, 2008
COURT FILE NO.: 561/08
DATE: 20080917
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., LEDERMAN AND KARAKATSANIS JJ.
B E T W E E N:
ALFIERI COGLIANO and I.C.M. MECHANICAL LIMITED
Respondents
(Plaintiffs)
- and -
SURYA PATEL and 1595759 ONTARIO LIMITED
Appellants
(Defendants)
ORAL REASONS FOR JUDGMENT
THEN R.S.J.
Date of Reasons for Judgment: September 17, 2008
Date of Release: September 24, 2008