



COURT OF APPEAL FOR ONTARIO

CITATION: Hornstein v. Kats, 2021 ONCA 293

DATE: 20210506

DOCKET: C68450

Huscroft, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Adriana Hornstein

Plaintiff (Appellant)

and

Anatoly Kats and Rachel Higgins

Defendant (Respondents)

Stephen R. Dyment, for the appellant

Mark A. Ross and Sharon A. Sam, for the
    respondent, Anatoly Kats

Rachel Higgins, acting in person

Heard: April 29, 2021 by video
    conference

On appeal from the judgment of Justice Carole
    J. Brown of the Superior Court of Justice, dated May 5, 2020.

REASONS FOR DECISION

[1]

This case arises out of an alleged partnership for
    the purchase of a residential property. The appellants argument that she was
    in a partnership with the respondent Kats was rejected by the trial judge
    following an 18-day trial. The trial judge found that, on an objective view,
    the appellants actions were not consistent with a partnership and that no
    partnership was created. The trial judge also found that the appellant had not
    contributed any monies to the purchase or maintenance of the property and had
    no beneficial interest in the property she alleged was owned by the
    partnership.

[2]

The trial judge found, further, that the
    appellant was not a credible witness, whereas she found that the respondent Kats
    was credible and preferred his evidence. She found that the appellant took
    advantage of Kats, his relative lack of sophistication in dealing with
    properties, and his difficulties with the English language. Among other things,
    the trial judge found that the appellant took out a second mortgage in Kats
    name, secured against his family home, without his knowledge.

[3]

The trial judges findings are entitled to
    deference. The appellant has not succeeded in establishing that the judge made
    any error, let alone a palpable and overriding error, requiring this courts
    intervention.

[4]

The appeal is dismissed as against the
    respondent Kats.

[5]

The trial judge found that the respondent
    Higgins had neither a claim for slander of title nor a claim for damages for
    breach of s. 132 of the
Land Titles Act
, R.S.O. 1990, c. L.5
. Nevertheless, she ordered the
    appellant to pay Higgins punitive damages in the amount of $35,000, citing the
    egregious, unreasonable, and malicious nature of the appellants actions.

[6]

It is well established that there is no basis
    for an award of punitive damages in the absence of an independent actionable
    wrong:
Whiten v Pilot Insurance Co.
,

2002 SCC 18, [2002] 1
    S.C.R. 595
. Punitive damages cannot be awarded simply on the basis
    of a partys misconduct. Given that the trial judge did not identify an
    independent actionable wrong, the award of punitive damages cannot stand.

[7]

Accordingly, the award of punitive damages must
    be set aside. The appeal is allowed only to this extent.

[8]

The respondent Kats is entitled to his costs on
    the appeal, fixed in the agreed amount of $15,000, all-inclusive.

[9]

It is not appropriate to award costs to the
    appellant against the respondent Higgins in this court, and no such costs are
    ordered. The costs order below remains unchanged.

Grant Huscroft
    J.A.

I.V.B. Nordheimer
    J.A.

Harvison
    Young J.A.


