



COURT OF APPEAL FOR ONTARIO

CITATION: Himel v.
    Molson, 2015 ONCA 405


DATE: 20150605

DOCKET: C58944

Juriansz, Lauwers and Huscroft JJ.A.

BETWEEN

Evelyn Himel

Plaintiff (Respondent/

Appellant by way of cross-appeal)

and

David Molson
and Leslie Toth

Defendants (
Appellant/

Respondent by way of cross-appeal
)

and

Lee Edward Fingold

Third Party

Charles Sinclair, for the appellant David Molson

Harvey J. Ash, for the respondent Evelyn Himel

Heard and released orally: June 1, 2015

On appeal from the judgment of Justice David L. Corbett
    of the Superior Court of Justice, dated May 23, 2014.

ENDORSEMENT

[1]

We find the appellants grounds of appeal to be without merit, for the
    following reasons:

[2]

First, the trial judge applied the correct standard of proof, which is
    the balance of probabilities:
F.H. v. McDougall
,
2008 SCC 53, [2008] 3 S.C.R. 41, at
    para. 40.

[3]

Second, it is not for this court to review the trial judges credibility
    findings in the absence of a palpable and overriding error, which the appellant
    has not made out.

[4]

Third, the trial judge had the discretion to draw the adverse inferences
    he did from Mr. Molsons failure to testify in response to the evidence of Dr. Toth
    and Mr. Fingold, and his failure to explain the presence in his file of the allegedly
    forged direction not to seek an appraisal of the investment property:
Lawyers
    Professional Indemnity Co. v. Geto Investments Ltd
. (2007), 51 C.C.L.I.
    (4th) 74, at para. 93. It appears that Mr. Molsons failure to testify was a
    tactical defence decision, and there is no reason to relieve him of the
    consequences of that call.

[5]

Similarly, it was open to the trial judge to refuse to draw an adverse
    inference from the respondents failure to call the vendors of the investment
    property, the Holdens, or their lawyers as witnesses.

[6]

Finally, no submissions were made against the punitive damages award and
    we see no reason to disturb it.

[7]

Both issues raised by the respondent in the cross-appeal were within the
    trial judges discretion. First, although the trial judge had discretion to
    order a higher interest rate than that provided for in the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43, he expressly declined to do so in view
    of his decision to award punitive damages at $30,000. This remedial structure
    was open to the trial judge.

[8]

Second, in deciding to award substantial indemnity costs in the amount
    of the respondents full bill of costs, the trial judge noted that this was a
    straightforward claim, the costs were high relative to the judgment amount, and
    the trial did not require the most senior solicitors. These are relevant
    factors and the trial judge did not err in taking them into account.

[9]

Accordingly, the appeal and the cross-appeal are dismissed.

[10]

Costs
    are fixed at $14,000, all inclusive, to the respondent.

R.G.
    Juriansz J.A.

P.
    Lauwers J.A.

Grant
    Huscroft J.A.


