



COURT OF APPEAL FOR ONTARIO

CITATION: Wright v. Holmstrom, 2016 ONCA 360

DATE: 20160512

DOCKET: C60391

Strathy C.J.O., MacFarland and Brown JJ.A.

BETWEEN

Alexander James Wright

Applicant (Appellant)

and

Candice Anne Holmstrom

Respondent (Respondent in Appeal)

Jeanie DeMarco, for the appellant

Susan Adam Metzler, for the respondent

Heard: May 10, 2016

On appeal from the judgment of Justice Victoria Rose
    Chiappetta of the Superior Court of Justice, dated March 24, 2015.

ENDORSEMENT

[1]

This appeal is entirely fact-based. The appellant identifies no error of
    law. Instead, he asks this court to re-assess and re-weigh the evidence at
    trial concerning his interest, if any, in the Neville Park Boulevard house.

[2]

The appellants claim to a half interest was undocumented. As the trial
    judge noted, the resolution of his claim required her to make findings of fact
    based on conflicting evidence. This, in turn, called for the assessment of the
    credibility of the parties in the context of all the evidence, documentary and
    testimonial.

[3]

Having heard and seen the evidence of the witnesses, particularly the
    parties themselves, and having considered the extensive, but far from
    definitive, documentary record, the trial judge rejected the appellants
    evidence in support of his claim to an interest in the home. She found his
    evidence incredible, contrived and illogical. She recognized that there were
    inaccuracies and inconsistencies in the respondents evidence, but ultimately
    accepted her explanations and her evidence that the appellants payment of
    $130,000 to her was a gift.

[4]

The appellant submits we should come to come to different conclusions. In
    his factum and counsels submissions he points to bits and pieces of evidence
    which he says supported his position and were ignored, misunderstood or
    misapprehended by the trial judge. We do not accept these submissions. The trial
    judge considered and evaluated all the evidence, weighed the evidence on both
    sides, and found the respondents evidence credible and the appellants
    evidence incredible. She performed her task and, absent palpable and overriding
    error, her decision is entitled to deference.

[5]

The appellant identifies two principal errors which he says were
    overriding, in the sense that they affected the outcome. First, he says that
    the respondents lawyers file is strong evidence in support of his version of
    the facts and against the respondents. We disagree. The file establishes, at
    best, that at one time the respondent may have contemplated that the appellant
    would acquire an interest in her house. But the respondents evidence, which
    the trial judge accepted, was that the appellant gave the money to her as a
    gift. This finding was clearly open to the trial judge and it is not
    inconsistent with the evidence in the lawyers file.

[6]

The second alleged error was that the trial judge should not have
    rejected the appellants evidence on the origin of the Declaration of Shared
    Ownership and should not have found that he created the document only for the
    purpose of the lawsuit, in an unsuccessful attempt to corroborate a story that
    was not believable. The trial judge articulated a number of reasons why she rejected
    the appellants evidence on this issue. We see no error in her reasoning.

[7]

We do not find it necessary to review any of the other alleged errors
    identified by the appellant. None of them, individually or collectively, come
    close to being dispositive. The trial judge gave ample reasons for rejecting
    the appellants evidence and for accepting the respondents, not the least of
    which was the implausibility of the appellants explanation of why his alleged
    interest in the home was undocumented.

[8]

For the same reasons, we find that the appellant has identified no error
    in the trial judges conclusions on the breach of trust claim. Those
    conclusions, set out at paras. 86-91 of her reasons, were open to her.

[9]

Nor would we interfere with the order that the appellant pay $3,000 for
    the damage he caused to the Neville property. That claim was plainly before the
    trial judge and was supported by the evidence, including the appellants own
    written acknowledgment.

[10]

We also see no basis on which to interfere with the trial judges exercise
    of her discretion to award no costs. She observed that success was divided on
    the several issues before her, each party had made unfounded allegations
    against the other and each had engaged in misconduct in the course of the
    proceedings. She considered the relevant factors and her decision is entitled
    to deference.

[11]

The appeal is therefore dismissed.

[12]

The appellant stated that she did not intend to pursue the cross-appeal
    if the appeal was dismissed. Accordingly, the cross appeal is dismissed as
    abandoned.

[13]

The respondent is entitled to her costs of the appeal, fixed in the
    amount of $17,776.93, inclusive of disbursements and all applicable taxes. We
    see no reason to make any reduction to account for the dismissal of the
    cross-appeal.

G.R. Strathy C.J.O.

J. MacFarland J.A.

D.M. Brown J.A.


