



COURT OF APPEAL FOR ONTARIO

CITATION: Omcon Investments Limited v. 1100828
    Ontario Limited,

2012 ONCA 154

DATE: 20120309

DOCKET: C53145

Winkler C.J.O., Armstrong and LaForme JJ.A.

BETWEEN

Omcon Investments Limited

Plaintiff (Appellant)

and

1100828 Ontario
    Limited, Ron A.V. Guidolin,

David Guidolin, R.
    Guidolin Industries Limited,

530547 Ontario
    Limited, Jacinta Investments Limited
and

Katharina Karen Tarantino, Estate Trustee
    of the Estate of

Ron Guidolin

Defendants (Respondents)

Gregory W. Roberts, for the appellant

Vito S. Scalisi, for the respondents

Heard and released orally: March 7, 2012

On appeal from the judgment of Justice M. Edwards of the
    Superior Court of Justice, dated December 6, 2010 with reasons reported at
    [2010] O.J. No. 5870.

ENDORSEMENT

[1]

Omcon appeals the judgment of Edwards J. dismissing its action.  The
    action was essentially for declaration that: (1) Omcon is the beneficiary of a
    trust created by an agreement in October 1994 and (2) Omcon is a beneficial
    owner of a 50 per cent interest in the plaza.

[2]

Omcon has not satisfied us that the trial judge made any palpable and
    overriding errors in his assessment of the evidence in support of the findings
    of fact he made.  This standard of review demands strong appellate deference to
    the findings of a trial judge.  Moreover, this standard applies to all factual
    findings whether based on credibility assessments, weight of competing evidence
    or drawing of inference from primary facts.  See
Housen v. Nicolaisen
[2002] 2 S.C.R. 787
.  As this court has
    reminded litigants repeatedly, this courts function is not to retry a case or
    to substitute its view of the evidence for those of the trier of fact.  That is
    what is being sought on this appeal.

[3]

As for the argument of Omcon on the issue of spoliation, the trial
    judges finding that the agreement was [never] executed by all the parties
    such that it became a binding agreement is a full answer to that issue.

[4]

Finally, the trial judge did not have to rely on the hearsay statements
    to decide the case as he did.  There was virtually no independent evidence as
    to the existence of a fully executed trust agreement.  Further, there were
    numerous inconsistencies with Omcons version of events and the trial judge was
    entitled to disbelieve its evidence.

[5]

Accordingly, we are not prepared to interfere with the decision of the
    trial judge and the appeal is dismissed.

[6]

The respondents are entitled to their costs as agreed to by the parties
    in the amount of $20,000 inclusive of disbursements and all applicable taxes.

Winkler C.J.O.

Robert P. Armstrong J.A.

H.S. LaForme
    J.A.


