CITATION: Saftarov v. Hohots Watt, 2013 ONSC 4925
DIVISIONAL COURT FILE NO.: 528/12
DATE: 20130723
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
HASAN SAFTAROV Plaintiff (Appellant)
– and –
HOHOTS WATT LLP VIKTOR HOHOTS Defendants (Respondents)
Howard Binsky, for the Plaintiff (Appellant)
Robert Watt, for the Defendants (Respondents)
HEARD at Toronto: July 23, 2013
LEDERER J. (orally)
[1] This is an appeal from a judgment of the Small Claims Court. The plaintiff (the appellant) sued the defendant law firm (the respondent) for $14,000 he said he had paid as a retainer for services the law firm never provided.
[2] The law firm acknowledges that it received $9,000 but says that it was on account of rent owed to it by Lilia Kossovan, a sub-tenant of space within its offices. Lilia Kossovan gave evidence at trial. She confirmed that she received a total of $14,000, only $9,000 of which was given to the law firm as rent. The remaining $5,000 was given to her by the plaintiff in cash and used by her for advertising for her business, fixing her car and other things.
[3] The trial judge accepted the evidence of Lilia Kossovan and found in favour of the law firm. It is this judgment from which the appeal is taken. Counsel for the appellant (the plaintiff) began by bringing a motion for the admission of fresh evidence being:
(i) The business cards of Lilia Kossovan, which referred to her business (Canadian Insolvency and Credit Alliance Inc.), and the address at which it was located being the offices of the law firm. What was said by counsel to be new and indicative of a direct business relationship between Lilia Kossovan and the law firm was the fact that the cards provided telephone numbers, fax number and e-mail address that are the same as that of the law firm.
(ii) Advertising done by the law firm. This advertisement refers to the law firm doing “bankruptcy” and works of subsiduary to personal bankruptcy. This too was said to demonstrate a direct business relationship between Lilia Kossovan and the law firm. This work was representative of what she did rather than activities of the law firm. The problem is that this advertisement was utilized fully three years after Lilia Kossovan had withdrawn from the offices of the law firm.
(iii) The transcript of a criminal trial that arose out of allegations made by Lilia Kossovan, that during December 2010, the appellant (the plaintiff) threatened her with death and bodily harm. The trial took place on May 6, 2011, a year and six months before the trial now being appealed from was heard (October 31, 2012). The appellant (the plaintiff) was acquitted. Counsel says the reason the transcript of the criminal trial was not available at the civil trial is because there was no indication that Lilia Kossovan would be so inconsistent in the evidence she provided and the appellant did not have the funds available to pay for the transcript. The inconsistencies are said to be with respect to when Lilia Kossovan met the appellant whether she introduced the plaintiff to the law firm and whether any money was given by him to the law firm. For the most part there is no inconsistency. The money that was said to be paid to the law firm was $6,000, acknowledged to have been paid on account of rent. The difference in their having met was said to be between “May 2009” in the criminal trial and “March, April, perhaps May 2009” in the civil trial.
It is clear that the appellant did attend at the offices of the law firm.
[4] The motion was dismissed. There was no reasonable explanation as to why this evidence was not available at the trial, except of course for the advertisement which was only utilized shortly before the trial.
[5] More importantly, there is simply no reason to believe that this evidence would have affected the assessment made by the trial judge as to the evidence, and in particular his acceptance of the evidence of Lilia Kossovan.
[6] The motion was followed by the appeal. It too is dismissed. In short, the appeal relies on arguments that suggest the narrative as accepted by the trial judge was not reasonable. How could it be that so shortly after meeting Lilia Kossovan the appellant (the plaintiff) would have paid for her rent? No courtship practice would have this happen so quickly. These sort of submissions would require me to reassess the evidence and credibility of the witnesses. This is not proper on an appeal. In short, it was open to the judge to accept the evidence of Viktor Hohots, a partner in the law firm as corroborated by Lilia Kossovan. There was no palpable and overriding error.
[7] Finally, counsel suggested that there was insufficient explanation by the trial judge, in his reasons, as to why he accepted the evidence he did. As the trial judge understood it, this situation was informed by a social relationship between the appellant (the plaintiff) and Lilia Kossovan, rather than a solicitor/client relationship between the appellant and the law firm.
[8] The trial judge also relied on the fact that later, after the events leading to the trial, the appellant went back and retained the law firm. Why would he go back and hire “scoundrels” who had taken advantage of him? This is explanation enough.
[9] The appeal is dismissed.
[10] The respondents (the defendants at trial), as the successful party, on this appeal seek costs. The cost requested are in the amount of $7,200, being $300 times 23 hours for preparation and one hour for the appearance today.
[11] In making this finding, I am mindful of the submission made by counsel for the appellant that in some fashion, counsel for the respondent was acting on his own behalf as a partner of the firm that was the respondent in the appeal and the defendant at the trial.
[12] I am also cognizant of the directive in Rule 57.01 that the amount of costs should be what the unsuccessful party could reasonably expect to pay in respect of this appeal and Rule 1.04 which speaks to proportionality being a consideration in these matters. This was afterall, a small claims court trial where the value at issue was $14,000.
[13] I must say as well that to me the request for 23 hours of time seems high.
[14] Taking all of these matters into account, a reasonable award of costs would be $2,000. Costs to the respondent in the appeal, the defendant in the action, payable by the appellant in the action in the amount of $2,000, plus HST.
LEDERER J.
Date of Reasons for Judgment: July 23, 2013
Date of Release: July 30, 2013
CITATION: Saftarov v. Hohots Watt, 2013 ONSC 4925
DIVISIONAL COURT FILE NO.: 528/12
DATE: 20130723
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER J.
BETWEEN:
HASAN SAFTAROV Plaintiff (Appellant)
– and –
HOHOTS WATT LLP VIKTOR HOHOTS Defendants (Respondents)
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: July 23, 2013
Date of Release: July 30, 2013