



COURT OF APPEAL FOR ONTARIO

CITATION: Bielanski v. Mundenchira, 2020 ONCA 811

DATE: 20201215

DOCKET: C66706

van Rensburg, Hourigan and Brown JJ.A.

BETWEEN

Helena Bielanski and Edward Bielanski

Plaintiffs

and

Jocie Varghese Mundenchira, Sisily
    Mundenchira, Amitha Jocie

Mundenchira, Babitha Mundenchira,
    Anthony Vadakkanchery,

Suma Devassy, Bogdan Kaminsky and Suvendu
    Goswami

Defendants

AND BETWEEN

Jocie Varghese Mundenchira, Sisily
    Mundenchira, Amitha Jocie

Mundenchira, Babitha Mundenchira

Plaintiffs by Crossclaim

(Appellants)

and

Suvendu Goswami

Defendant by Crossclaim

(Respondent)

Harry S. Mann, for the appellants

James R.G. Cook and Scott K. Gfeller, for the respondent

Heard: November 20, 2020 by video conference

On appeal from the order of Justice William M. LeMay of
    the Superior Court of Justice, dated February 19, 2019, with reasons reported
    at 2019 ONSC 1162.

REASONS FOR DECISION

[1]

We dismissed this appeal with reasons to follow. These are our reasons.

[2]

The appellants are Jocie Mundenchira, who is a real estate agent and
    investor, and his wife and two adult daughters. They appealed the order of the
    trial judge awarding damages of only $5,000 and dismissing the balance of their
    crossclaim against the respondent, their former lawyer.

[3]

The trial judge concluded that the respondent breached his duty
    of care in acting for the appellants in the purchase of their home (the
    Bluestream property) in 2005. Through oversight in the legal description of
    the property in the deed, instead of receiving a conveyance of one severed 50-foot
    wide lot from the vendors (the Bielanskis), the appellants became the
    registered owners of an unsevered lot that was 100 feet wide, which included the
    property where the Bielanskis continued to live. The error was cured in 2012,
    after
the respondent obtained a consent to sever and after
the
    Bielanskis started an application to have their property transferred back to
    them.
The appellants settled the proceeding with the
    Bielanskis by transferring the severed lot and receiving payment from them for the
    property taxes the appellants had paid between 2005 and 2012 on the Bielanskis
    property.

[4]

The central issue at trial was whether the respondents breach of the
    duty of care caused any damage or loss to the appellants and, if so, the amount
    of damages. The trial judge awarded $5,000 in damages, which represented the
    refund of a retainer the appellants paid to the respondent in respect of the litigation
    with the Bielanskis.

[5]

In June 2009 the appellants listed the Bluestream property for
    sale at a price of $1.125 million, in anticipation of their move to a new
    custom home. The appellants eventually sold the Bluestream property to their
    friends in 2011.
In their crossclaim against the respondent
    the appellants claimed damages which included: (a) $235,000 for the reduction
    in the value of the Bluestream property due to the title defect; (b) $66,784 in
    carrying costs for the Bluestream property from the original listing date until
    it was sold; (c) $390,000 in business losses as a result of the equity of the
    Bluestream property being tied up between 2009 and 2012 and the lost
    opportunity to use the money to invest in condominiums; (d) interest on the
    property taxes they had recovered from the Bielanskis; (e) fees paid to the
    respondent and costs paid by the appellants to the new purchasers of the
    Bluestream property; and (f) damages for aggravation and mental distress in the
    sum of $200,000.

[6]

We are not persuaded that there was any palpable
    and overriding error in the trial judges conclusion that the damages claimed
    by the appellant (other than the $5,000 that was awarded) were not reasonably
    foreseeable, supported by the evidence, or caused by the respondent lawyers
    error.

[7]

First, there was no palpable and overriding
    error in the trial judges conclusion that the reason for the appellants delay
    in selling the Bluestream property was the fact that the propertys listing
    price was too high, and that there was no evidence linking the delay and any
    reduction in value to the title defect. As the trial judge noted, there was no
    reliable evidence on the record that potential purchasers were not making
    offers to purchase the Bluestream property because the property taxes were too
    high. Rather, he concluded that the reason the property did not sell in 2009
    was because Mr. Mundenchira had an unreasonable view of the value of the house:
    at para. 108. The trial judge explained why he was not persuaded by the
    appellants evidence (a package of listings of other custom-built homes with
    list prices ranging from $870,000 to $1.149 million), where it was impossible
    on the record before him to compare the relative features of the different
    houses to the Bluestream property: at para. 109. The trial judges findings of
    fact based on his assessment of the evidence and its weight is entitled to
    deference, absent a palpable and overriding error: see
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras.
    10, 11, 25. We see no such error in the trial judges conclusion on this point.

[8]

Second, the trial judge found that the
    appellants knew as early as 2005, but at the latest by 2009 when this discrepancy
    was noted on the June 2009 appraisal they obtained before listing the Bluestream
    property for sale, that they had received a conveyance of both halves of the unsevered
    lot rather than a single severed lot, yet they did nothing to rectify the
    problem until October 2010. This conclusion was open to the trial judge on a
    consideration of the evidence, including Mr. Mundenchiras email to MPAC in
    September 2009, stating, I have represented this since we bought the property
    in 2005 (
and referring to the records showing his property as being 100
    feet wide whereas his belief was that his property was only 50 feet wide),
as well as the trial judges rejection of Mr. Mundenchiras evidence
    on this point, which he found to be lacking in credibility.

[9]

Third, the trial judge did not err in refusing
    to accept, as expert evidence, the opinion of a business valuator purporting to
    calculate the appellants business losses that were alleged to have occurred as
    a result of the delay in the sale of the Bluestream property. The trial judge
    did not err in his identification of the test for admission of expert evidence
    or in its application. The trial judge observed that the proffered expert
    evidence was simply a mathematical calculation that flowed from assumptions by
    Mr. Mundenchira and his counsel and that there was no verification of inputs.
    Moreover, the appellants had refused to produce banking records and other
    financial information on discovery. In any event, the experts testimony was
    irrelevant once the trial judge had concluded that the alleged business losses
    were not caused by the title defect.

[10]

Finally, the appellants demonstrated no error in
    the trial judges conclusion that the respondent was not liable for the
    interest on the property taxes they were reimbursed by the Bielanskis, which
    they ought to have recovered from the Bielanskis, and that the claim for
    damages for aggravation and mental distress failed for lack of evidence.

[11]

For these reasons the appeal was dismissed. The respondent is
    entitled to his costs in the agreed amount of $15,000, inclusive of
    disbursements and HST.

K. van Rensburg J.A.

C.W. Hourigan J.A.

David Brown J.A.


