Divisional Court No. DC-16-2172
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
B E T W E E N:
STEPHEN SORENSEN
Appellant
- and -
JOHN LEBLANCQ, MICHAEL LEBLANCQ and
NORMAND J. LEBLANCQ (2001) INC.
Respondents
P R O C E E D I N G S
BEFORE THE HONOURABLE JUSTICE SWINTON,
THE HONOURABLE JUSTICE WHITTEN, and
THE HONOURABLE JUSTICE MCCARTHY
on October 26, 2016, at OTTAWA, Ontario
APPEARANCES:
D. Adams Counsel for the Appellant
R. De Toni Counsel for the Respondents
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Page
Reasons for Judgment 1
Transcript Ordered:
October 27, 2016
Transcript Completed:
November 1, 2016
Ordering Party Notified:
November 1, 2016
Judicially Approved:
November 1, 2016
LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) Indicates preceding word has been spelled phonetically.
WEDNESDAY, OCTOBER 26, 2016
...PREVIOUS PROCEEDINGS NOT TRANSCRIBED
JUSTICE SWINTON: Mr. De Toni, we do not need to hear from you. Mr. Justice McCarthy will read the decision of the Court.
CITATION: Sorensen v. Leblancq 2016 ONSC 6839
R E A S O N S F O R J U D G M E N T
DIVISIONAL COURT, SUPERIOR COURT OF JUSTICE
Swinton, Whitten, McCarthy, JJ.
MCCARTHY, J. (Orally):
In the matter of Sorensen and Leblancq et. al., this is an appeal by the plaintiff appellant from the judgment of Minnema, J. of the Superior Court of Justice dated April the 1st, 2015, awarding the plaintiff $21,000 for breach of contract, and $32,000 in costs against the defendants, save and except for the defendant Michael Leblancq personally. That judgment was given after an uncontested trial on damages.
The appellant now seeks that the judgment be set aside and that this Court grant judgment for a higher amount to include an increased amount for breach of contract and punitive damages. The grounds of appeal include that the trial judge erred in failing to find fraud or fraudulent misrepresentation on the part of the defendant Leblancq, failed to determine the appropriate quantum of damages and failed to award both general damages for assault and punitive damages.
Questions of law are generally reviewed on a correctness standard, whereas findings of fact cannot be reversed unless the trial judge has made a palpable and overriding error.
We cannot give effect to the appeal for the following reasons. We can find no overriding or palpable error in the trial judge’s assessment of damages. He correctly summarized the law governing damages, assessments and default judgment hearings. The allegations of fact and the evidence at trial must entitle the plaintiff to judgment for the amount sought.
After awarding the entire cost of the flooring contract of $21,000 to the plaintiff, the trial judge went on to consider the time and materials component of the project. While he accepted that the removal of a support beam and load bearing wall were serious and even dangerous, the trial judge found no evidentiary basis upon which to award damages based on the cost of any remediation, actual or estimated.
The trial judge found that although the rates charged by the defendants were grotesque and obscene, the appellant had, with a willing mind, agreed to pay them. The trial judge declined to re-write the agreement arrived at, concluding that the plaintiff had simply made a poor bargain. His findings are entitled to deference from this Court.
Although the trial judge found that there was an assault in the technical sense, he was not prepared to award any damages because there was no evidence that the appellant experienced any pain, suffering, discomfort, stress or that he was left with any fear or apprehension of the defendant. The trial judge was perfectly within his rights to award no damages for a technical assault.
Under the head of punitive damages, the trial judge found that the defendants were incompetent, but he stopped short of finding that the incompetence amounted to fraud; nor could he find the existence of a fiduciary duty on the facts before him. The trial judge considered but dismissed the suggestion that the conduct of the defendant amounted to malicious or oppressive conduct. The findings of the trial judge were supported by the evidence. They are entitled to deference. There was no palpable or overriding error.
The request for a declaratory order under the Bankruptcy and Insolvency Act, and the issue of costs were abandoned by the appellant. So for the foregoing reasons, the appeal is dismissed.
JUSTICE SWINTON: Mr. De Toni, are you seeking costs?
MR. DE TONI: I am, Your Honour. I do have a costs outline here that I brought with me. You’ll see that the partial indemnity rate set out in the costs outline is $11,585. I’ve been out for, for some practicing since 1996, so it’s hard to believe it’s been 20 years now. It goes by really fast. Eytan Rip who, who provided me with some assistance on the matter has been practicing since 2005, so he’s been out for 11 years.
It may be a little bit more time then I would have ordinarily spent because I was not at – there at the trial, so there was a little more time in having to read through all of the materials and, and, and get a flavour for it. There was of course a number of issues that my friend had raised that needed to be addressed in the appeal and of course there was a voluminous amount of authorities that my friend had relied upon in support of his argument.
While I recognize that my friend will make some argument about the conduct of, of my client, and I acknowledge that my conduct – my client’s conduct is obviously a problem and not appropriate in the circumstances, that would be dealt with on a cost at trial, rather then on an appeal. We have an appeal here of the trial judge’s decision that was wholly supported by the evidence that was presented at trial. My friend tried to seek to overturn a decision basically alleging that there was an overriding impalpable error that the judge had made. And of course, this Court has found that there’s not.
In my submission, the, the failure was really the lack of evidence that was presented at trial, and therefore this extra step should not have been necessary in the circumstances. It all should have been dealt with at trial and therefore my client has had to go to this additional expense through no fault of, of, of his own. So my submissions that the, that my client would be entitled to costs in the, in the circumstances.
JUSTICE SWINTON: Mr. Adams.
MR. ADAMS: I have no, no quarrel with the, the bill of costs. It’s, I think, appropriate. I’ve reviewed it; it’s not dissimilar to my own. My only disagreement would be that it’d be my submission that the overall conduct of the, of the respondent is relevant for consideration here, and the arguments advanced were interesting, I would hope, in the least to this Court.
And perhaps after this Court assessed costs, you could provide me with some direction in any event with respect to is there any setoff with the outstanding cost orders that are currently in place as against Leblancq, which haven’t been paid. So there you have Justice Abrams, as well as His Honour’s order, which is not disturbed(ph) then so there are some elements there. Perhaps some direction from the Court as to whether we deal with it right now by way of a setoff or other format.
UNIDENTIFIED MALE SPEAKER: What do...
MR. ADAMS: I have...
UNIDENTIFIED MALE SPEAKER: ...you say about that.
MR. ADAMS: ...no suggestion substantially on that.
MR. DE TONI: I don’t, I don’t recall how much the cost order was, if my friend could...
MR. ADAMS: He....
MR. DE TONI: ...help me....
MR. ADAMS: Well His Honour’s cost order was 32....
UNIDENTIFIED MALE SPEAKER: (Indiscernible – over talking)....
MR. DE TONI: But the – on the – there was another one the motion...
MR. ADAMS: 13.
MR. DE TONI: ...to strike....
JUSTICE SWINTON: 13?
UNIDENTIFIED MALE SPEAKER: (Indiscernible – over talking)....
MR. ADAMS: Justice Abrams’ was 13,000. Yeah.
MR. DE TONI: I don’t think I would have any difficulty if it was setoff against each other.
JUSTICE SWINTON: With a setoff?
UNIDENTIFIED MALE SPEAKER: Mm-hmm.
MR. DE TONI: That, that, that makes sense. I mean, it’s fair in the circumstances.
MR. ADAMS: Sure.
...JUDGES CONFERRING
JUSTICE MCCARTHY: Right was the, the total amount of costs then against the defendant in the proceeding to date is $45,000, do I have that right?
MR. DE TONI: Yes, sir.
JUSTICE MCCARTHY: That’s fine. Thank you.
...JUDGES CONFERRING
JUSTICE SWINTON: I’ve endorsed the record. For oral reasons delivered today by Mr. Justice McCarthy, appeal is dismissed. Costs to the respondent fixed at $11,500, an amount that the appellant concedes is reasonable. This amount shall be setoff – I’m missing a word here. This amount shall be setoff against the $45,000 in costs ordered to the appellant by Mr. Justice Abrams and the trial judge. So we will – or the staff will provide you with a copy of that handwritten endorsement and as you know, you’ll get the transcription at, at some time too. So thank you for your submissions.
MR. DE TONI: Thank you.
MR. ADAMS: Thank you.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
EVIDENCE ACT
I, Christine Sauvé, certify that this document is a true and accurate transcript of the recording of Sorensen v. Leblancq in the Superior Court of Justice held at 161 Elgin Street, Ottawa, Ontario taken from Recording CD# 0411_CR37_20161026_092437__ 10_SWINTOK.dc, which has been certified in Form 1 by P. Ielapi.
(Date) Christine Sauvé
ACT #1070099798