



COURT OF APPEAL FOR ONTARIO

CITATION: Garcha v. Mundi, 2014 ONCA 156

DATE: 20140227

DOCKET: C53024

Laskin, Epstein and Pardu JJ.A.

BETWEEN

Manjit Garcha

Plaintiff (Respondent)

and

Parminder Singh Mundi and Bindra Mundi

Defendants (Appellants)

Risa Sokoloff and Tamara Ramsy, for the appellants

Fernand A. Majid, for the respondent

Heard and released orally:  February 21, 2014

On appeal from the judgment of Justice Douglas K. Gray of
    the Superior Court of Justice, dated November 23, 2010.

ENDORSEMENT

[1]

Mr.
    and Mrs. Mundi appeal the judgment of Justice Gray awarding the plaintiff,
    Garcha, $231,963 for loans he advanced to the Mundis.  The Mundis main
    submission on appeal is that the trial judge erred in law by relying on
    evidence of settlement discussions, which took place before a mediator, a guru,
    in India.  They argue that those discussions were inadmissible because of
    settlement privilege.

[2]

At
    trial, the Mundis acknowledged that Garcha advanced the money in question. 
    Their contention, however, was that the money advanced was a business
    investment for which they were not liable.  Garcha maintained that the Mundis
    were personally liable for the money he advanced.

[3]

In
    attempting to resolve that dispute, the trial judge was faced with a great deal
    of conflicting evidence and little documentary evidence to support either
    sides position.  The Mundis acknowledge this to be so and submit that in this
    context, the trial judges reliance on the discussions in India tipped the
    balance in the trial judges finding of liability.

[4]

The
    trial judge did not accept that Garcha could sue on the settlement of $300,000
    reached in India.  He did, however, rely on the discussions in India as one
    piece of evidence showing that the Mundis owed Garcha a considerable amount of
    money.  In our view, the trial judge did not err in using the evidence of the
    settlement discussions in that way.

[5]

Early
    in the trial, counsel for the Mundis did raise a preliminary objection about
    the admissibility of this evidence.  However, he accepted the trial judges
    observation that if the objection was to be pursued, then counsel for the
    Mundis should raise it later in the trial.  He never did so.  Instead, he led
    evidence from his clients about the settlement discussions in India and relied
    on that evidence in support of his position that conditions were attached to
    the repayment of the money, conditions that were not met.  Further, in his
    closing submissions at para. 78, counsel for the Mundis said:

Therefore, the only value that could be ascribed to the
    settlement meeting is the argument that the evidence represents an intention to
    repay loans and wages.

This was the very use the trial judge made of the
    evidence.

[6]

Therefore,
    in our view, even if settlement privilege might otherwise attach to those
    discussions in India, a point we need not decide, that privilege was waived. 
    The trial judge was thus entitled to consider the evidence of those discussions
    for the limited purpose he explained at para. 300 of his reasons.

[7]

The
    Mundis also point to other evidence that they say is inconsistent with the
    trial judges finding of liability.  However, the trial judge considered this
    evidence and explained why it did not affect his conclusion that the Mundis
    were personally liable.  Instead, he relied on other evidence to support his
    conclusion.  We have not been persuaded that he committed any palpable and
    overriding error in doing so.

[8]

Accordingly,  the appeal is dismissed with costs fixed at $25,000 all inclusive.

John Laskin
    J.A.

Gloria
    Epstein J.A.

G. Pardu
    J.A.


