COURT FILE NO.: 266/08
DATE: 20091217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MANOUCHER BARADARAN
Plaintiff/Appellant
- and -
MARY HYUN SOOK LEE
Defendant/Respondent
Orie H. Niedzviecki, for the Plaintiff/ Appellant
Antonios T. Antoniou, for the Defendant/ Respondent
HEARD At Toronto: December 17, 2009
dambrot j.: (Orally)
[1] Manoucher Baradaran appeals from the dismissal of the Small Claims Court action against Mary Lee for damages for professional negligence and breach of contract by Deputy Judge Freeman.
[2] Ms. Lee is a barrister and solicitor. She was retained by Mr. Baradaran to act for him on the closing of the purchase of a home for $1,200,000.00. The closing was delayed for four days. The appellant alleged that this delay was occasioned by the respondent’s negligence and caused him damages in the amount of $3,800.00. He also alleged that the fees and disbursements she charged him were in excess of the agreed upon amount. I note that no issue is raised regarding the second issue on this appeal.
[3] The trial judge concluded that the claim was frivolous. He said that the appellant had failed to prove any negligence whatsoever on the part of the respondent nor any damages. He also concluded that the delay in closing was the direct result of the appellant’s actions and that the fees charged were entirely reasonable, taking into account the amount in question and the time spent.
[4] The appellant raises the following grounds of appeal:
(i) The trial judge erred in finding that the delay in closing was the fault of the appellant.
(ii) The trial judge’s behaviour toward the appellant in the course of the trial resulted in a denial of due process.
[5] With respect to the first ground of appeal, I observe that even if the trial judge erred in finding that the delay in closing was the fault of the appellant, that would not, standing alone, establish negligence. That said, however, I conclude that there was ample evidence to support the trial judge’s finding and there is no basis to interfere with it. It certainly cannot be said that the trial judge made a palpable and overriding error, which is the standard of review on this issue.
[6] The core of the appellant’s argument is that on the date of closing, in the face of demands made by the vendor that were contrary to the agreement of purchase and sale, the respondent negligently failed to advise the appellant that one of his options was to tender and, that if he had done so, the deal would probably have closed that day and the appellant would not have suffered any damages.
[7] That argument overlooks the fact that despite the respondent’s advice, the appellant had not obtained fire insurance for the property. As a result, the respondent, acting on behalf of the appellant, could not have tendered the bank’s mortgage funds. In my view, this entirely defeats the appellant’s argument.
[8] The respondent outlined additional evidence that supports this finding of the trial judge in paragraph 59 of her factum. I agree that this additional evidence lends further support to the trial judge’s finding on this issue, but in view of what I have already said, it is not necessary for me to describe that evidence here. I repeat that there was ample evidence to support the trial judge’s finding on this issue and there is no basis to interfere with it.
[9] With respect to the second ground of appeal, it is true that the trial judge interjected frequently during the appellant’s cross examination of the respondent and during his argument. This was understandable, having regard to the appellant’s chaotic presentation of his case, his reluctance to ask questions during cross examination rather than make statements and his failure to directly answer the trial judge’s questions during argument.
[10] The trial judge’s interventions were intended to get the appellant to clarify his questions and to keep them relevant and helpful and to get the appellant to present a focused argument. There is no basis to conclude that the trial judge exhibited bias towards the appellant or prevented the appellant from presenting his case.
[11] For these reasons, the appeal is dismissed.
[12] Costs to the respondent fixed at $5,000.00.
DAMBROT J.
Date of Reasons for Judgment: December 17, 2009
Date of Release: December 22, 2009
COURT FILE NO.: 266/08
DATE: 20091217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MANOUCHER BARADARAN
Plaintiff/Appellant
- and -
MARY HYUN SOOK LEE
Defendant/Respondent
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: December 17, 2009
Date of Release: December 22, 2009