CITATION: Luxterior Design Corp. v. Gelfand, 2020 ONSC 446
DIVISIONAL COURT FILE NO.: 172/18
DATE: 20200224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aitken, Pattillo, Penny JJ.
BETWEEN:
Luxterior Design Corp.
Appellant/Respondent by Cross Appeal
– and –
Janna Gelfand, mark gelfand and the toronto dominion bank
Respondents/Appellants by Cross Appeal
Vanessa Ibe for the Appellant
Kevin Sherkin and Jeremy Sacks for the Respondents
HEARD: January 16, 2020
reasons for decision
BY the court:
Overview
[1] Both parties have appealed the decisions of Morgan J. dated March 8 and October 17, 2018 in this matter, incorporated into one order issued on April 16, 2019. On March 8, 2018, Morgan J. granted, in part, the motion of Janna and Mark Gelfand (the respondents), opposing confirmation of the report of Master Weibe of August 6, 2015. The motion judge reduced the amount the Master awarded to Luxterior (the appellant) by $72,000 and reduced the prejudgment interest awarded by the Master from 3.1 % per annum to the stipulated rate of 0.5% under the Courts of Justice Act, R.S.O. 1990, c. C.43. On October 17, 2018, following further submissions by the parties, the motion judge reduced the Master’s cost award in favour of the appellant from $485,000 to $236,574.20.
[2] For the reasons that follow, the Luxterior appeal is allowed and the Gelfands’ appeal is dismissed.
Background
[3] The Gelfands purchased a luxury condominium in Yorkville. They hired Luxterior to provide design services for the completion of the interior of the condominium. Following a 29-day trial in 2013 and 2014, Master Wiebe granted judgment in Luxterior’s construction lien claim in the amount of $243,000 and dismissed the Gelfands’ counterclaim of $275,000 in its entirety. As noted, he also awarded prejudgment interest at the rate of 3.1% and costs to Luxterior of $485,000.
[4] Credibility was a significant issue in this case. In his decision, the Master assessed the credibility of the appellant’s witnesses (which included its principal, Mr. Zallan) and the respondents. He preferred the evidence of the appellant’s witnesses, finding that the respondents’ evidence lacked credibility and reliability.
[5] One of the many issues involved was whether a particular supplier in Italy (Baldo) had ever intended to be paid for design work he did on the finishings for the luxury condominium. The Gelfands took the position that Baldo had no expectation of being paid – all he did was put in a proposal which the Gelfands never accepted. They argued that Mr. Zallan put Baldo up to submitting an invoice during an email exchange on December 2, 2009, after Luxterior had a falling out with the Gelfands. The Gelfands claimed that they encountered Baldo at a wedding in Europe in 2010, where Baldo told Mrs. Gelfand that he never expected to be paid for the design work he had done.
[6] Master Wiebe rejected the Gelfands’ evidence on this point. One of Master Wiebe’s several reasons for doing so was his conclusion that the Baldo invoice had already been issued in April of 2009 before the discussion at the wedding. That was incorrect. The invoice was issued on December 4, 2009. It did not predate the email exchange between Mr. Zallan and Baldo but was several days later.
[7] The motion judge concluded that this was a palpable and overriding error of fact which tainted the Master’s credibility findings. He found, in particular, that it tainted the Master’s finding that Luxterior was entitled to payment for an “extra” of about $72,000 said to be incurred to do work Baldo was to have done on the condominium’s interior design. The motion judge re-analysed all of the evidence on this issue and concluded that Luxterior’s disputed invoice was not an extra but was for work already subject to the parties’ 10% commission contract. The motion judge therefore overturned the Master’s award of this amount and reduced the overall judgment by $72,000.
[8] The motion judge also found that this same error tainted the Master’s assessment of prejudgment interest at 3.1%. Accordingly, the motion judge reduced interest to 0.5%.
[9] When it came to costs, the motion judge found that the Master had, in addition to the respondents’ conduct and other things, considered, in awarding substantial indemnity costs, an offer to settle made by Luxterior which was for an amount less than the amount it was awarded by Master Wiebe following the trial. When the $72,000 was deducted from the award, the net award was not more than the offer to settle. The motion judge then went on to reconsider costs in their entirety, including the mistake that he found tainted the Master’s view of the Gelfands, and placed significant weight on the principle of proportionality. The motion judge, as a result, reduced Luxterior’s costs to $236,574.20.
[10] The Gelfands’ counterclaim was based on 16 alleged deficiencies and the cost of marble that had to be removed from the vanities in Mrs. Gelfand’s ensuite. The Master analyzed the claims in detail and concluded that Luxterior had no responsibility for any of them and dismissed the counterclaim.
[11] On the motion to oppose confirmation, the Gelfands did not challenge the Master’s dismissal of the counterclaim.
[12] It is from these decisions of the motion judge that Luxterior and the Gelfands appeal.
[13] Luxterior submits that the motion judge erred in incorrectly applying the standard of palpable and overriding error with respect to the factual findings of Master Wiebe. It further submits that the motion judge erred both in finding that Luxterior was not entitled to the $72,000 fee for design services and in reducing the cost award and the prejudgment interest amount.
[14] The Gelfands’ appeal on the basis that, having found the Master’s palpable and overriding error about the date of the Baldo contract tainted the Master’s assessment of credibility, the motion judge did not go far enough in merely setting aside the award of $72,000 for the alleged “extra” for doing work that Baldo was going to do and reducing prejudgment interest and costs. The Gelfands argue that the error about the date of the Baldo contract was central to the Master’s rejection of the Gelfands’ evidence as a whole. The Gelfands could not be sure they received a fair trial if the assessment of their credibility was based on a factual error. The only thing to do at that point, they argue, was to order a new trial.
Standard of Review
[15] It is common ground that the standard of review applicable to a motion to oppose confirmation is the same as the standard of review applicable to an appeal from an order arising from a motion to oppose confirmation. Findings of fact are not to be overturned in the absence of a palpable and overriding error. On a pure question of law, the standard of review is correctness, RSG Mechanical Incorporated v. 1398796 Ontario Inc., 2015 ONSC 2070 (Div. Ct.) at paras. 22 and 23.
The Issue
[16] The issue which is determinative of Luxterior’s appeal is whether the motion judge erred in law when he found that the mistake about the Baldo contract date was both palpable and overriding, and that this error warranted reassessing not only the Master’s credibility findings as a whole but also specific awards for: a) services performed; b) prejudgment interest; and c) costs.
Analysis
[17] It is trite law that findings of fact of a trial judge (or, in this case, Master) should not be overturned on appeal unless there is a palpable and overriding error. A palpable error is one that is obvious, plain to see, or clear. And overriding error is an error that is sufficiently significant to vitiate the challenged finding of fact. Inconsistencies which are in fact minor details in what is otherwise a lengthy, thorough and well-reasoned decision cannot be viewed as palpable or overriding sufficient to justify appellate intervention, Homewood Development Inc. v. 2010999 Ontario Inc., 2014 ONSC 4437.
[18] The conclusion of the motion judge at para. 17 of his reasons, that the error (which seems to have arisen from a transposition error of month and day – 12/4 as opposed to 4/12) was palpable, is inescapable. The mistake is obvious, plain and clear.
[19] The issue of whether the error was “overriding” in the context of the Master’s overall assessment of credibility, however, is less clear. The motion judge did not explicitly address this issue in his reasons. He appears to have concluded the error was overriding on the basis that it was one of the grounds upon which the Master concluded that he did not accept the Gelfands’ evidence. The motion judge referred to the Master’s finding that Mrs. Gelfand lacked all credibility as having been “based on” this error. He also found that the Master drew adverse inferences about the Gelfands’ liability for numerous billings by the appellant, “all based on the supposed fabrication told by Mrs. Gelfand regarding the nature of the Defendant’s dealings with Baldo,” (para 18).
[20] In reaching these conclusions, the motion judge ignored the fact that there were many other grounds relied on by the Master for his credibility findings which were far more serious and material to the issues than the date of the Baldo invoice.
[21] The Master acknowledged in his decision that much of the case turned on credibility because the positions of the parties as to what happened in relation to the issues conflicted throughout the trial. He summarized the factors to consider in weighing credibility including demeanour, honesty, forthrightness, openness, spontaneity, firm memory, accuracy and evasiveness as well as consistency with documentary and other evidence. He described in considerable detail how these factors were applied in his weighing of the evidence and his assessment of credibility, not only of Mrs. Gelfand but also of Mr. Zallan, Mr. Gelfand and others. Among other things, he found that the Gelfands had less credibility because they “relied primarily on their own verbal evidence” which was largely unsupported by any documentary evidence. As parties, he noted, they had an obvious potential bias but “there were many other concerns.”
[22] The Master found that Mrs. Gelfand’s evidence was “largely unsubstantiated, contradictory and self-serving.” He supported this conclusion with many examples from the evidence.
[23] Mrs. Gelfand insisted she was “nothing but a housewife” without the capacity to make hiring and management decisions about the improvements; she only “cooked and cleaned.” But the evidence was that Mrs. Gelfand had leading positions in many of the Gelfands’ companies and that she was an active manager of her own company, Nefertiti Inc., which owned a spa. Master Weibe found that Mrs. Gelfand had been heavily involved in the negotiations of all the main contracts, including Luxterior, Baldo, DGM and Arca, the latter two being the two largest contracts on the project. Even Mr. Gelfand admitted that he always consulted Mrs. Gelfand before making payments and admitted that he authorized large payments simply because Mrs. Gelfand wanted them made.
[24] Mrs. Gelfand’s evidence with respect to the Arca supplier was particularly “puzzling and troubling.” The agreement was that Luxterior would be paid 10% on all improvements post-acquisition of the condominium. Arca was an Italian millwork supplier. Mrs. Gelfand signed a contract with Arca for millwork at a price of €829,181. There were also extras billed by Arca. This was the single most expensive improvement to the condominium. At trial, Mrs. Gelfand claimed that she had subsequently negotiated a special deal with Arca whereby it reduced the contract price to about €450,000. Mrs. Gelfand therefore claimed that Luxterior was not entitled to its 10% on the full contract price.
[25] Master Weibe found that Mrs. Gelfand had not been forthright in her evidence about the payments made to Arca. He found that her claim to a reduced purchase price lacked credibility. Among other things, the Gelfands did not produce any witness from Arca to corroborate this “special deal.” The documentary evidence relied upon by Ms. Gelfand did not support her theory of a reduced price. There was evidence that the Gelfands paid Arca the full contract price but in an indirect way. Among other things, the Gelfands had a loan agreement with a firm called Newington. Newington was regularly used by the Gelfands to pay trade accounts. A wire transfer document from the Gelfands to Newington for €600,000 was marked by Mrs. Gelfand “Arca.” The wire transfer from Newington to Lugano Bank in Italy was again marked by Mrs. Gelfand as a “payment to Arca.” At trial, Mrs. Gelfand denied that the payments to Newington were for the purpose of paying the final Arca invoice, claiming that her notes were “a mistake.” Master Weibe noted that all this happened after the Luxterior litigation began. He found that the Gelfands had paid the full purchase price as well as a number of extras to Arca. He held that “this evidence about the [indirect] payments to Arca not only undermined Mrs. Gelfand’s credibility on this point completely, it also suggested deviousness on the part of the Gelfands that was troubling.”
[26] There were other aspects of Mrs. Gelfand’s evidence that undermined her credibility. For one thing, Master Weibe did not accept Mrs. Gelfand’s evidence that her October 7, 2009 email to Mr. Zallan was a termination notice, given that she had sufficient business knowledge to know that a notice of termination had to be clear and should not be made using “sarcasm.” There was also late production of handwritten invoices, which cast the bona fides of those invoices into doubt. Finally, there was the Gelfands’ general lack of documentary corroboration of their oral evidence.
[27] Master Weibe found that Mr. Gelfand equally lacked credibility, if not more so. His evidence was also self-serving, contradictory and unreasonable. Documentary evidence made it clear that Mr. Gelfand was actively involved in negotiating proposals with Luxterior, contrary to his assertion that he was not. Further, his evidence changed over the course of the proceeding. The Gelfands’ statement of defence denied that there was any commission agreement. Mr. Gelfand testified at trial that while he discussed a 10% commission, he was only concerned with a bottom- line price. In closing argument, the Gelfands’ counsel conceded there was an understanding or an arrangement about a 10% commission.
[28] Mr. Gelfand’s evidence on important points was often blatantly inconsistent with the documentary evidence. Further, he made assertions about Mr. Zallan’s obligations under the contract that were not documented and were, on their face, “commercially unreasonable.”
[29] With respect to the date of the Baldo invoice itself, it is important to put this issue in context. Whether Baldo did or did not expect to be paid for the design work and proposals he prepared was irrelevant to the substantive issues at trial. The Baldo invoice only came up as a collateral matter because of the Gelfands’ claim: a) that Baldo told them at a wedding they all attended that he had no expectation of payment; and b) their allegation that Mr. Zallan put Baldo up to submitting his invoice. The credibility of these statements was challenged, leading to the Master’s findings.
[30] As Master Weibe noted, there were “many problems with this evidence.” First, there was no documentary corroboration of these discussions with Baldo. Second, this evidence was important to the Gelfands’ defence that Mrs. Gelfand had no general contracting responsibility for the management of the improvements, yet they did not call Baldo as a witness. Third, the Gelfands’ behaviour was that of a party who hired Baldo to do the flooring and millwork. Further, the Gelfands did not blame Luxterior for Baldo’s delays until after the litigation commenced. The date of the invoice was only a part of the fourth reason for not accepting Mrs. Gelfand’s evidence on this issue. And it was not the last. Master Weibe also went on to find that Baldo expended considerable effort in producing the two design catalogues for the improvements and travelled to Toronto to observe the site in detail, things no reasonable supplier would have done for free. This, Master Wiebe found, was not the conduct of a family friend performing a favour. It was on the basis of all of these factors that Master Weibe “discounted Mrs. Gelfand’s evidence on this point entirely and began doubting her overall credibility.”
[31] Master Wiebe began the relevant passage in which he relied on the mistaken date with the sentence, “Most importantly, the documentary evidence showed that Baldo himself did not behave in accordance with this story.” He then cited the incorrectly dated invoice from April. He went on, however, to say “the subsequent email exchange in November 2009 did not change this fact.” The motion judge took a different view of the “subsequent emails.” In those emails, the motion judge wrote, Mr. Zallan “appears to be expressly egging Baldo on to submit a bill to the defendants.” In our view, the emails, read in their entirety and in context, clearly show that Baldo, unprompted by Mr. Zallan, felt he had done a lot of work for the Gelfands, expected to be paid, was annoyed that he had not been paid and submitted an invoice for his services to Luxterior. He initially blamed Mr. Zallan for the lack of payment. All Mr. Zallan then did was agree with Baldo that he ought to be paid and advise Baldo to send his invoice directly to the Gelfands, as Luxterior was not responsible for this payment.
[32] In addition, during the trial, objection was taken to Mrs. Gelfand’s evidence about what Baldo told her during the meeting at the wedding in Europe on the basis that it was hearsay. Master Wiebe found that her evidence had “no indicia of reliability.” She was a party and had a stake in the outcome. There were no documents, contemporaneous or otherwise, supporting Mrs. Gelfand’s evidence. There was no evidence Baldo was incapable of attending at trial and giving evidence. Furthermore, during Mrs. Gelfand’s cross-examination at trial, she was read, and acknowledged, a passage from her examination for discovery which took place only a few months after the alleged discussion with Baldo:
Question: And you didn’t talk about the invoice of 120,000? [this is the invoice in question]
Answer: Absolutely not.
Question: And from the time that you received this invoice to the time you met him in the summer you and your husband didn’t have any communications with him regarding this invoice?
Answer: I do not remember.
Thus, Mrs. Gelfand’s evidence on discovery about what Baldo said during their encounter at the European wedding was completely inconsistent with her evidence at trial.
[33] The motion judge owed the Master considerable deference in relation to findings of credibility. On a motion to oppose confirmation of a report, the judge ought not to interfere with the results unless there has been an error in principle, an absence or excess of jurisdiction or some patent misapprehension of the evidence, RSG Mechanical, supra.
[34] It is not the role of the motion judge on a motion opposing confirmation to interfere with a conclusion based on inferences to be drawn from the evidence presented before the trier of fact, to reassess the weight to be assigned to underlying facts presented at trial or to interfere with the findings of credibility that are based on observation of the witnesses and their evidence. It is not the role of the motion judge to interfere with factual conclusions with which he or she may have a difference of opinion regarding the weight to be assigned to the evidence and the underlying facts. The court hearing the motion to oppose confirmation must not, in short, retry the case or any aspect of it, Homewood Development Inc. v. 2010999 Ontario Inc., 2014 ONSC 4437 at paras 4 and 6; Pagebrook Inc. v. Lawson, 2009 ONCA 371 at paras 8 and 9.
[35] In our view, the motion judge failed to address the question of whether the mistake about the date of the Baldo invoice, while palpable, was also overriding, in the sense that it was sufficient to vitiate the Master’s conclusion about Mrs. Gelfand’s credibility. Had the motion judge analysed this question in the context of the Master’s decision and analysis of the evidence as a whole, we are confident that he could not have reasonably come to any other conclusion but that the Master’s mistake about the date was a palpable but not an overriding error.
[36] The mistaken date was a relatively minor issue in the scheme of things. It was, in any event, overwhelmed by numerous other, more important and material considerations, set out, explained and supported in the Master’s Reasons, which amply supported the Master’s rejection of Mrs. Gelfand’s evidence.
[37] However, having found (incorrectly in our view) that the central credibility issue in the Master’s mind was the mistaken date, the motion judge then went on to reassess the evidence and re-analyse the conclusions reached on several issues:
(1) the $72,000 “extra”;
(2) prejudgment interest; and
(3) costs.
[38] Regarding the $72,000 invoice, the motion judge found that the Master had laid his interpretation “directly at the feet of his own credibility finding” and that the Master’s conclusion (accepting Mr. Zallan’s evidence that this invoice was an “extra” not included in the 10% commission) was pinned on his view that “nothing the Gelfands said was credible.” Having found that the Master’s mistake “tainted” his view of the Gelfands’ credibility, the motion judge assumed the role of trial judge, came to his own conclusion, assessing credibility and weighing the evidence differently, and disallowed the appellant’s claim for the amount of this invoice.
[39] As we have found, the Master’s view that the Gelfands lacked credibility was well-founded on a breadth and depth of evidence altogether apart from the mistake about the Baldo invoice date. The Master was well within his rights as the trier of fact to make the findings he did, given the support for these findings as set out in his extensive reasons. It was an error of law for the motion judge to make his own assessment of credibility, weigh the evidence and come to his own conclusion about the validity of this particular claim.
[40] The Master relied on s. 130 of the Courts of Justice Act to award a rate of prejudgment interest that was higher than the default or standard rate prescribed under s. 128. The motion judge acknowledged the discretionary nature of this relief but focussed, in particular, on the Master’s credibility findings about the Gelfands. The motion judge found that this “negative view” arose from a “misapprehension of the evidence” that was the sole basis for the Master’s grant of prejudgment interest under s. 130 of the CJA. The motion judge also found that “were it not for this negative view of the Gelfands’ credibility regarding their relationship with Baldo, the Master would likely have imposed the standard CJA rate of prejudgment interest.”
[41] It is clear from the Master’s Decision on Costs and Prejudgment Interest that he did not rely solely on the Gelfands’ lack of credibility in awarding prejudgment interest under s. 130. Nor, in any event as stated above, did he rely solely on the mistake in the date of the Baldo invoice. The principal justification for the award of 3.1% interest was that it “properly compensates [Luxterior] for the period in question given the market rates of interest during that time.” In other words, the Master used a blended rate of interest for the period covered by the non-payment rather than a rate pegged to when the litigation was first commenced. The motion judge’s intercession into the determination of the appropriate prejudgment interest rate was premised on the so-called “misapprehension of the evidence” which we have found did not constitute an overriding error and which did not vitiate the validity of the Master’s overall assessment of the Gelfands’ credibility.
[42] It was, in the circumstances therefore, an error of law for the motion judge to purport to re-examine the exercise of the Master’s discretion and come to his own decision, based on his own assessment of the evidence, the circumstances and the parties’ conduct, about the appropriate award of prejudgment interest.
[43] Finally, there is the issue of costs. The motion judge, having incorrectly reduced the Master’s award by $72,000, found that the award no longer exceeded the offer to settle which the appellant had made. Further, the motion judge found that “without the mistake, the assessment of the Defendants’ credibility would have been different” and that his assessment of conduct in the context of costs would also have been different. Again, a reading of the Master’s Reasons on Costs makes it clear that he relied on “conduct” which encompassed much more than just the issue of the Baldo invoice date. Indeed, while the issue of the Baldo relationship was referred to, the Baldo invoice date per se is not mentioned at all in support of the Master’s cost award.
[44] We have found that the “mistake” did not vitiate the Master’s conclusions about the Gelfands’ credibility and that the motion judge ought not to have reduced the Master’s award by the amount of the $72,000 invoice. It therefore follows that the motion judge’s interference with the Master’s award of costs also cannot stand.
[45] The Master was well aware that his award of costs was significant. He was also well aware that an award of costs that was greater than the monetary award on the lien claim might be regarded, at first blush, as “disproportionate.” But the Master went on to give careful and thoughtful reasons, supported by the evidence, for his conclusion that $485,000 was an appropriate award. On the issue of proportionality specifically, the Master relied on the decision of Gray J. in Cimmaster v. Piccione, 2010 ONSC 846 at para 19:
…the principle of proportionality should not normally result in reduced costs where the unsuccessful party has forced a long and expensive trial. It is cold comfort to the successful party, who has been forced to expend many thousands of dollars and many days and hours fighting a claim that is ultimately defeated, only to be told that it should obtain a reduced amount of costs based on some notional concept of proportionality.
[46] The Master went on to say at para. 24 of his November 12, 2014 reasons:
I agree with this quotation. It would indeed be unfair to a successful party, forced by the other side to deal with numerous issues, to be left with only a fraction of its costs on the grounds that the award was much less than the party’s costs and that the other side did not have the same level of costs. That an award of costs exceeds the judgment should not by itself be grounds for denying costs as long as the claimed costs are reasonable in the circumstances of the case. Otherwise, unreasonable conduct on the part of the losing party would be encouraged citing Daley J. in A&A Steelseal Waterproofing Inc. v. Kalovski [2010 ONSC 2652](https://www.canlii.org/en/on/onsc/doc/2010/2010onsc2652/2010onsc2652.html) at para [21](https://www.canlii.org/en/on/onsc/doc/2010/2010onsc2652/2010onsc2652.html#par21) and Bonaiuto v. Pilot Insurance Co. [2010 ONSC 1248](https://www.canlii.org/en/on/onsc/doc/2010/2010onsc1248/2010onsc1248.html) at para [7].
[47] As with the previous two issues, the linchpin of the motion judge’s reassessment of costs was the so-called error regarding the mistaken invoice date and its relation to the Master’s overall assessment of the Gelfands’ credibility. There was no overriding error in the Master’s credibility assessment. It was, therefore, an error of law for the motion judge to reassess findings of credibility, conduct his own weighing of the evidence and formulate his own conclusion in the exercise of his own discretion, to interfere with the Master’s award of costs.
[48] For these reasons, Luxterior’s appeal is allowed.
Gelfands’ Cross-Appeal
[49] In the Gelfands’ cross-appeal they seek:
(a) an order for a new trial; or
(b) an order that Morgan J. erred when he refused to overturn the Master’s award of commission on “post-termination items.”
New Trial
[50] The argument for an order for a new trial is based on the proposition that, having found that the Master’s assessment of the Gelfands’ credibility was based on a mistake, the motion judge did not go far enough. The motion judge in effect found, they say, that the Master viewed the Gelfands’ evidence through a “tainted lens” giving rise to a reasonable apprehension of bias on the basis that the mistake “infected” every aspect of the Master’s decision-making, including each and every one of his adverse findings regarding the Gelfands.
[51] The Gelfands submit that a fair trial was lost to them after the Master began doubting Mrs. Gelfand’s overall credibility on the basis of what turned out to be a mistake of fact. Given the contradictory evidence on the issues, the Gelfands submit that the result of the trial could have been the “total opposite” if the Master did not find Mrs. Gelfand to be totally lacking in credibility. As a result, they submit, the only reasonable remedy is an order for a new trial and that it was an error of law for the motion judge to decline to make that order.
[52] We do not agree. As we have concluded above, the Master’s assessment of credibility in this case was not solely based on the mistaken invoice date. This was, in the scheme of things, a minor error on a totally collateral issue. There were many, far more significant, factors supporting the Master’s negative view of the credibility and reliability of the Gelfands’ evidence.
[53] The record does not support the Gelfands’ allegations of reasonable apprehension of bias. There was no “tainted lens.” The Master’s findings were not “infected” by the mistaken date.
[54] The mistake, while palpable, did not give rise to an overriding error. It did not vitiate the Master’s credibility findings which were based on ample evidence altogether apart from the date of the Baldo invoice.
[55] Because the Master committed no error, there is no basis for ordering a new trial. The respondents’ appeal on this issue is dismissed.
The award of commission on “post-termination items”.
[56] The Gelfands argue the Master’s interpretation of the contract that entitled Luxterior to receive commission on improvements that were “delivered or installed” after contract termination on November 19, 2009 was unreasonable.
[57] The Master gave extensive reasons for his conclusion that 14 of the 16 disputed items were improvements that Luxterior had been “involved with” to a sufficient extent that the 10% commission rate applied regardless of when delivery or installation actually took place. He also gave extensive reasons for his rejection of the respondents’ “delivered or installed” approach to the threshold for payment under the commission arrangement.
[58] The motion judge considered the arguments and Master Wiebe’s reasons. Acknowledging that he might have assessed the evidence differently, the motion judge also recognized that this was not a trial de novo. The motion judge, correctly in our view, concluded that the Master’s analysis and conclusions on this issue fell within the “bounds of commercial reasonableness” and should not be interfered with on the motion to oppose confirmation.
[59] We can find no error in the motion judge’s assessment of this issue. Accordingly, the respondents’ appeal on this issue is also dismissed.
Conclusion
[60] In conclusion, for the foregoing reasons the Luxterior appeal is allowed and the Master’s disposition of the $72,000 “extra” invoice, prejudgment interest and costs is restored. The Gelfands’ appeal is dismissed.
Costs
[61] The appellant sought $17,533.92 in partial indemnity costs. The respondents’ cost outline requested $22,547.35 partial indemnity costs. In the circumstances, the appellant’s request is both fair and reasonable. Costs are awarded to the appellant in the amount of $17,533.92.
Aitken J.
Pattillo J.
Penny J.
Released: February 24, 2020
CITATION: Luxterior Design Corp v. Gelfand, 2020 ONSC 446
DIVISIONAL COURT FILE NO.: 172/18
DATE: 20200224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aitken, Pattillo, Penny JJ.
BETWEEN:
LUXTERIOR DESIGN CORP.
Appellant/Respondent by Cross Appeal
– and –
JANNA GELFAND, MARK GELFAND AND THE TORONTO DOMINION BANK
Respondents/Appellants by Cross Appeal
REASONS FOR decision
Released: February 24, 2020