



COURT OF APPEAL FOR ONTARIO

CITATION: Pirani v. Esmail, 2014 ONCA 145

DATE: 20140226

DOCKET: C55218

Weiler, Rouleau and Pepall JJ.A.

BETWEEN

Barkatali Nazarali Pirani

Respondent/Plaintiff

and

Yasmin Esmail, Tajdin Esmail and Alnaz Ismail
    Jiwa

Appellants/Defendants

Morris Cooper and Sabrina A. Bandali, for the appellants

John Philpott, for the respondent

Alnaz Ismail Jiwa, acting in person

Heard: September 10, 2013

On appeal from the judgments of Justice Susan E. Greer of
    the Superior Court of Justice, dated February 22, 2012 and May 31, 2012, and her
    cost order dated June 29, 2012.

Rouleau J.A.:

INTRODUCTION

[1]

A dispute arose out of the management and sale of a rental property that
    was subject to a trust. Almost 10 years after the sale of the property, the
    matter came to trial.

[2]

At trial, the appellants, Yasmin and Tajdin Esmail, and the respondent,
    Barkatali Pirani, called competing experts. Due to a lack of accounting records,
    both experts attempted to reconstruct the accounts for the rental propertys
    administration. The experts came to very different conclusions about the
    profitability of the rental property over the 13-year period prior to its sale.
    The appellants expert concluded that the rental property operated at a net
    loss and that the appellants were owed money. The respondents expert concluded
    that the rental property earned a profit and that the respondent was owed
    money.

[3]

The trial judge accepted the calculations of the respondents expert.  She
    found the appellants liable for breach of trust and breach of fiduciary duty,
    and awarded damages to the respondent based on the calculations of the
    respondents expert. She also awarded aggravated damages and substantial
    indemnity costs.

[4]

The Esmails appeal. They principally challenge the respondents experts
    report that the trial judge used to assess damages.

[5]

The trial judge also found the solicitor who acted for the Esmails on
    the sale, the cross-appellant Alnaz Jiwa, liable for breach of trust, breach of
    fiduciary duty and negligence.

[6]

Mr. Jiwa cross-appeals on the basis that he was retained only by Mrs.
    Esmail to carry out a real estate transaction. Mr. Jiwa argues that he never
    owed Mr. Pirani a duty of care, either in negligence or as a fiduciary.

[7]

For the reasons that follow, I would allow the appeal in part.  I would
    also allow the cross-appeal.

FACTS

[8]

The appellant, Tajdin Esmail, purchased a house (the property) on
    March 31, 1989, for $367,500. It was operated as a rental property without the
    necessary authorizations. The property had five tenancies at the time and was
    subject to a mortgage of $247,420.32. Shortly after buying the house, Mr.
    Esmail asked the respondent, Barkatali Pirani, to invest in the property. They
    agreed that Mr. Pirani would pay $54,666.66 to Mr. Esmail for a one-third
    interest in the property.

[9]

They then executed a declaration of trust, dated November 24, 1989. The
    terms of that trust agreement provide that Mr. Esmail was to hold the property
    in trust for himself as a two-thirds beneficiary, and for Mr. Pirani as a
    one-third beneficiary. The declaration of trust was prepared by their real
    estate lawyer, Mr. Nizar Fakirani, who had acted on the purchase of the
    property.

[10]

In
    the early years, Mr. Esmail periodically gave figures to Mr. Pirani concerning
    the performance of the investment. Mr. Esmail maintained that the property was
    operating at a loss. As a result, he made requests to Mr. Pirani for payment of
    his share of these losses. Based on the record before me, there is little doubt
    that the property was in fact operating at a loss at the outset.  Further
    details, however, are hard to come by. The actual amount of the loss suffered,
    how long the losses continued and how frequently or accurately the losses were
    reported to Mr. Pirani remains unclear.

[11]

Mr.
    Esmail did not maintain accounts for the property. He never operated a bank
    account in the name of the trust.  He never kept any receipts for expense
    payments. There were no records of the rental income. We do not know where the
    rent cheques were deposited. At his examination for discovery, Mr. Esmail
    undertook to seek records related to a Bank of Montreal account and to provide
    a list of names of each of the tenants from 1989 to 2002 as well as their last
    known telephone numbers. He failed to complete these undertakings.

[12]

In
    1990, financial difficulties prompted Mr. Esmail to refinance the mortgage on
    the property. Legal and other fees were paid out of the proceeds of the
    refinancing. The proceeds were also put towards overdue tax and interest
    arrears. The expenses paid out of the proceeds of the mortgage refinancing
    totalled $3,457.46.

[13]

In
    1991 and 1992, Mr. Pirani paid a total of $13,050.14 to Mr. Esmail to cover
    various expenses relating to the property. This amount includes a $3,000
    payment made to cover Mr. Piranis share of a $9,000 loss that Mr. Esmail
    claimed had been incurred. Mr. Pirani never saw proof that Mr. Esmail had
    contributed his $6,000 share of that loss.

[14]

Mr.
    Pirani also made payments to cover shortfalls in the payment of property taxes.
    From 1993 to 2002, Mr. Pirani paid a total of $32,397.42 in property taxes
    directly to the City of Toronto.

[15]

At
    one point, Mr. Esmail received an insurance payment of $5,000 for damages to
    the property caused by vandals. Although he claims to have credited Mr. Pirani
    with $1,666.66 representing Mr. Piranis one-third share, there is no record of
    such a payment having been made.

[16]

In
    1994, Mr. Esmail transferred title to the property to his wife. The transfer
    was effected because Mr. Esmail was having income tax problems at the time. Mr.
    Pirani was aware of the transfer. No consideration was exchanged between Mr.
    and Mrs. Esmail.

[17]

Mrs.
    Esmail understood that Mr. Pirani was, as she put it, a one-third partner in
    the property. She denied, however, ever reading the declaration of trust. After
    Mrs. Esmail obtained title to the property, she paid all of the bills except
    for the property taxes, which continued to be paid directly by Mr. Pirani. Mrs.
    Esmail took on management tasks relating to the property, including advertising
    for tenants and receiving rent cheques.

[18]

In
    2002, the parties decided to sell the property. Bill Thom, the real estate
    agent retained in the sale, was introduced to the Esmails by Mr. Pirani. Mr.
    Esmail testified that he let Mr. Pirani deal with the real estate agent, that the
    listing was prepared without input from the Esmails, that the $2,240 monthly
    rental figure in the listing was more or less accurate and that the listing
    agreement was completed and waiting for Mrs. Esmail when she attended at the
    office of the agent to sign it. Mrs. Esmail testified that Mr. Pirani was
    present at the real estate agents office when she signed the listing
    agreement. Her evidence was that Mr. Pirani showed her the listing that she was
    supposed to sign because she was the listed owner, and that she did so. Mrs.
    Esmail also testified that she did not provide any of the information that was
    included in the listing, and that she did not read the listing before signing
    it. On cross-examination by Mr. Esmail, who was then self-represented, Mr.
    Pirani agreed that he was the one who introduced Bill Thom to the Esmails. Mr.
    Pirani also testified that he met with the real estate agent and that he was
    present, along with Mrs. Esmail, when the listing agreement was signed. Mr.
    Pirani could not recall if Mr. Esmail was present at that time. Mr. Pirani was
    never directly questioned on his role in preparing the listing agreement, but never
    suggested that either of the Esmails were involved in the process. There was no
    conflict of evidence in this regard.

[19]

The
    Esmails retained the cross-appellant, Alnaz Jiwa, to act on the sale. Mr.
    Pirani retained Mr. Fakirani to protect his interest in the transaction.

[20]

Before
    the closing, Mr. Fakirani sent a copy of the declaration of trust to Mr. Jiwa,
    along with a covering letter informing Mr. Jiwa of Mr. Piranis one-third
    beneficial share in the property. The letter stated that Mr. Pirani was
    entitled to one third of the proceeds of the sale of this property, and that
    Mr. Jiwa should have a certified cheque for Mr. Piranis share of the sale
    proceeds ready for pick up on the closing date. Mr. Jiwa responded as follows:
    We have your instructions to pay your client one third of the net proceeds.

[21]

The
    sale was scheduled to close on September 20, 2002. The closing was delayed,
    however, when the purchaser discovered that the property was an illegal rooming
    house, that the water bill was in arrears and that insurance could not be
    obtained for the property because a portion of the garage had been converted
    into an illegal rental unit. Mr. Jiwa did not inform Mr. Fakirani of the delays
    or the discussions about how to respond to the purchasers concerns.

[22]

In
    October of 2002, the purchaser agreed to close the transaction in exchange for
    a rebate of $10,000 on the purchase price. Mr. and Mrs. Esmail agreed to the
    reduction without discussing it with Mr. Pirani. The closing went ahead on
    November 1, 2002. Out of the proceeds of sale, Mr. Jiwa paid the outstanding
    mortgage in the amount of $184,201.92, tax arrears of $7,143.20, water arrears
    of $1,962.58 and his legal fees of $615.25. The net proceeds were then
    distributed to Mr. Esmail, who received two thirds or $114,300.63, and Mr.
    Pirani, who received one third or $57,150.32. In the accompanying letter
    addressed to Mr. Fakirani, Mr. Jiwa noted that he was making the payment of Mr.
    Piranis share, but that the payment was subject to expenses incurred to
    maintain the property.

[23]

Sometime
    in 2002, Mr. Pirani gave Mrs. Esmail $500 to have the City of Toronto produce a
    property tax statement for the years 1989 and following. Mrs. Esmail, however,
    only had to pay $180 to the City for the statements.

[24]

In
    February of 2003, three and a half months after the closing, Mr. Fakirani wrote
    to Mr. Jiwa acknowledging receipt of the funds and stating that his client, Mr.
    Pirani, was eager to settle all outstanding matters with Mr. Esmail with
    respect to the property. Mr. Fakirani asked Mr. Jiwa to convey to Mr. Esmail
    Mr. Piranis request that he be provided with a full and proper accounting for
    the period during which the property was administered as partnership
    property.

[25]

It
    appears from the correspondence that Mr. Fakirani assumed that Mr. Esmail was
    Mr. Jiwas client. Mr. Jiwa in fact considered his client to have been Mrs.
    Esmail. Mr. Jiwa therefore forwarded Mr. Fakiranis letter to Mrs. Esmail.
    About four months later, Mr. Fakirani wrote again to Mr. Jiwa urging Mr. Jiwa
    to impress upon his client the importance of providing a full and proper
    accounting.

[26]

More
    than a year after raising the concern about the accounting, and having received
    no satisfactory response, Mr. Pirani issued a statement of claim against Mr.
    and Mrs. Esmail and Mr. Jiwa on April 5, 2004. The claim was for damages for
    breach of contract, breach of trust and breach of fiduciary duty in the amount
    of $100,000. Mr. Pirani also claimed out-of-pocket expenses as well as
    aggravated and exemplary damages. The claim for punitive damages was later
    withdrawn.

[27]

At
    trial, Mr. Esmail attempted to reconstruct the accounts for the administration
    of the property. He produced two spreadsheets but had little documentation
    backing up the figures contained therein. Mrs. Esmail produced some vouchers
    for advertising, but neither of the Esmails produced cancelled cheques or bank
    statements to prove expenses or the deposit of rents. Some documents the
    Esmails produced relating to the tenancies provide indications that rents for
    the various units in the period 1992 to 1996 ranged from $550 to $850.

[28]

Mr.
    Pirani retained Mr. Zafar, C.A., to prepare an unaudited report on the profit
    and loss for the property by reconstructing the accounts as best as he could
    using the information available. The Esmails hired Mr. Spagnuolo, C.G.A., who
    produced a report in response to Mr. Zafars expert report. Mr. Zafar then
    produced a revised report, and Mr. Spagnuolo produced a response to this
    revised report. Both experts testified at trial.

DECISION BELOW

[29]

The
    trial judge held that the declaration of trust had created a valid trust, and
    that Mr. Esmail was both a trustee and a beneficiary of the trust. As a
    trustee, he owed a fiduciary duty to Mr. Pirani. Mr. Esmail breached this duty
    by failing to prepare and keep proper accounts of his administration. Mr.
    Esmail committed a further breach of trust when he transferred the property to
    Mrs. Esmail in 1994 for no consideration.

[30]

The
    trial judge also found that Mrs. Esmail was not a
bone fide
purchaser
    for value, that she knew of the trust arrangement and that she therefore held
    the property in trust even though she was not a named trustee. Mrs. Esmail had
    taken on the administrative duties of operating the trust property from 1994 to
    2002 but failed to produce any related bank statements for this period. There
    were no records of the rents received or of the expenses incurred in the
    operation of the property.

[31]

The
    trial judge concluded that the Esmails were jointly and severally liable to Mr.
    Pirani for damages for breach of trust and breach of fiduciary duty.

[32]

In
    her reasons, the trial judge explained that she was unable to rely on any of
    the financial reconstructions prepared by Mr. Esmail and found that Mr. Esmail
    was not a credible witness. From the total absence of records, the trial judge
    drew the inference that Mr. Esmail had either destroyed or deliberately
    withheld his banking records. The trial judge determined that the transfer of
    the property to Mrs. Esmail was a fraudulent preference, and that like Mr.
    Esmail, Mrs. Esmail had obfuscated in her testimony and had destroyed or
    withheld relevant banking documents.

[33]

The
    trial judge drew the inference that after receiving the proceeds of sale, Mr.
    Esmail likely diverted the funds to Mrs. Esmail to protect himself from Mr.
    Piranis lawsuit. If Mr. Esmail indeed transferred the proceeds to Mrs. Esmail,
    the funds could be traced into her hands.

[34]

The
    trial judge determined that the proceeds of sale should have been held in trust
    by Mr. Jiwa until the issues of legal and beneficial ownership had been
    settled. She held Mr. Jiwa liable to Mr. Pirani in damages for breach of trust,
    breach of fiduciary duty and negligence in carrying out his duties as a
    solicitor. She found that Mr. Jiwa had placed himself in a relationship of
    sufficient proximity to Mr. Pirani so as to owe him a duty of care. This
    followed from the fact that Mr. Pirani had relied on Mr. Jiwa to act carefully
    and to keep him and Mr. Fakirani informed as to how the sale of the property
    was proceeding. Mr. Jiwa, however, had simply ignored the declaration of trust
    he had received from Mr. Fakirani, and did not keep Mr. Fakirani or Mr. Pirani
    informed about the delay in closing. Mr. Jiwa did not obtain consent from Mr.
    Pirani for the $10,000 reduction in the sale price. In addition, Mr. Jiwa did
    not consult with Mr. Fakirani or Mr. Pirani about paying the arrears of
    property taxes and water accounts out of the proceeds of sale.  Rather, Mr.
    Jiwa improperly deducted the cost of 50% of these arrears from Mr. Piranis
    share of the proceeds of sale. As a one-third owner, Mr. Pirani ought only to
    have paid one third of these debts. Finally, Mr. Jiwa also charged Mr. Pirani
    for 50% of the legal fees rather than one third in keeping with Mr. Piranis
    one-third ownership interest.

[35]

The
    trial judge also faulted Mr. Jiwa for having totally ignored Mr. Fakiranis
    request that Mr. Pirani be provided with a full and proper accounting of the
    administration of the trust property.

[36]

With
    respect to the expert reports and the testimony of the experts, the trial judge
    found that Mr. Spagnuolo was not an independent witness. In preparing his
    report, Mr. Spagnuolo had relied on information provided by the Esmails
    daughter despite the fact that there was little or no documentation to support
    the figures she provided. Further, Mr. Spagnuolo accepted Mr. Esmails
    assertion that Mr. Pirani had agreed to be responsible for the payment of all
    property taxes despite the absence of any contract or agreement to that
    effect.  The trial judge rejected Mr. Esmails testimony alleging such an
    agreement along with those parts of Mr. Spagnuolos reports based on the
    assumed existence of any such agreement.

[37]

As
    to Mr. Piranis expert, Mr. Zafar, the trial judge accepted Mr. Zafars
    reconstruction of the accounts for the operation of the property from 1989 to
    2002. She found Mr. Zafar to be an independent witness well qualified to carry
    out the work. She considered Mr. Zafars estimates of the rental increases and
    the vacancy rates to be drawn from reliable sources and reasonable in the
    circumstances. The trial judge also accepted Mr. Zafars calculations regarding
    the mortgage payments made over the 13-year period, and his calculation of the
    profits that would have been earned from rents. However, she rejected Mr.
    Zafars calculation of the appropriate amount of interest to be paid on the
    profits assumed to have been earned from rent but as yet unpaid to Mr. Pirani.
    In the trial judges view, there was no basis for Mr. Zafars assumption that
    Mr. Pirani had borrowed money for the investment at prime plus two per cent. As
    a result, she rejected the $109,751 in interest calculated by Mr. Zafar and
    concluded that Mr. Pirani would not be entitled to such a high rate of return.
    The trial judge considered that the more appropriate rate would be the
    prejudgment interest rate.

[38]

The
    trial judge awarded damages to Mr. Pirani as follows:

a)

$1152.68 representing 1/3 of the $ 3,457.46 in fees incurred in
    transacting for, and arrears paid out of, the refinancing of the mortgage in
    1990;

b)

$12,873 representing Mr. Piranis 1/3 share of the profits that would
    have been earned from the operation of the property based on Mr. Zafars
    reconstruction of the accounts;

c)

$45,958 representing the return to Mr. Pirani of property expenses he
    paid together with the return of the contribution he made to the losses
    incurred in the early years of the propertys operation. The trial judge
    reasoned that because, according to Mr. Zafars calculations, the property had
    ultimately generated a net profit of $38,619, Mr. Piranis contribution to the
    losses incurred and to the payment of taxes should have been reimbursed to him;

d)

$320 representing the over-payment made by Mr. Pirani to Mrs. Esmail to
    obtain the property tax statement from the City of Toronto;

e)

$1,666.66 representing 1/3 of the insurance proceeds relating to
    property damage received by Mr. Esmail that was never paid to Mr. Pirani;

f)

$2,522 representing the amount of expenses improperly paid by Mr. Jiwa
    out of Mr. Piranis share of the proceeds of sale of the property. As noted
    earlier, the trial judge concluded that he was charged for 50% of the arrears
    of property taxes and water bills as well as of the legal fees, rather than one
    third of these costs; and

g)

$3,333.33 representing one third of the $10,000 reduction of the sale
    price in the property.

[39]

To
    this the trial judge added pre-judgment interest in the amount of $15,215.11.

[40]

The
    trial judge also ordered Mr. Jiwa to pay damages of $15,000 together with
    pre-judgment interest in the amount of $3,155.40.

[41]

In
    her reasons, the trial judge stated that because of the delays in the trial,
    counsel had inadvertently failed to provide the court with case law relevant to
    the claim for aggravated damages. As a result, she invited both counsel to prepare
    brief legal submissions on this issue.

[42]

Following
    receipt of these submissions, the trial judge issued supplementary reasons. She
    found that Mr. Pirani had experienced distress as a result of the delay in
    getting to trial. She also found that the Esmails had ignored their legal and
    fiduciary obligations throughout the administration of the trust. The trial
    judge considered the Esmails conduct highhanded and egregious.  In her view,
    delays caused by the Esmails also kept the action in the legal system for seven
    years. The Esmails caused further delays by deciding to retain legal
    representation mid-trial.

[43]

As
    a result, the trial judge awarded Mr. Pirani $15,000 in aggravated damages, to
    be paid jointly and severally by the Esmails.

[44]

The
    claim for aggravated damages as against Mr. Jiwa was dismissed.

ISSUES

[45]

The
    appellants raise four issues:


i.

Did the trial judge err in her assessment of damages and in relying on
    the report of the respondents expert?


ii.

Should the award of aggravated damages be set aside?


iii.

Should Mrs. Esmail be jointly and severally liable for both the
    compensatory and aggravated damages awarded at trial? and


iv.

Should the award of substantial indemnity costs be set aside?

[46]

On
    the cross-appeal, the issue is whether a fiduciary duty or a duty of care
    existed between the cross-appellant and the respondent.

ANALYSIS

[47]

At
    the outset, it is worth noting that the trial judge faced significant
    challenges in this case. The appellants were self-represented. Mid-trial, they
    made the decision to retain counsel. The respondent changed lawyers twice.
    Moreover, the trial judge was called upon to settle the accounts of a trust in
    the almost total absence of records for the 13 years of the trusts operation. Further
    complicating the judges task was the fact that the trusts sole assetthe
    propertyhad been sold 10 years before trial.

[48]

With
    this in mind, I now turn to the issues on appeal.

i.        Did
    the trial judge err in her assessment of damages and in relying on the report
    of the respondents expert?

[49]

Many
    of the trial judges findings are not challenged on appeal. The existence of a
    trust and the appellants failure, as trustees, to maintain records and
    properly account for the administration of the trust were findings well
    supported in the evidence. Further, the trial judges findings that the
    appellants were not credible, and that they likely destroyed or failed to
    produce banking and other records, were reasonable and available on this
    record.

[50]

The
    trial judge properly rejected the Esmails experts report. It is based
    primarily on information provided by the Esmails. The trial judge found this
    information unreliable. The accuracy of the Spagnuolo report was therefore
    undermined, rendering it of little or no value.

[51]

The
    Esmails principle submission is that the trial judge ought to have rejected
    Mr. Piranis experts report as well. The Esmails argue that the trial judge
    erred in relying upon [Mr. Zafars report] as the basis for her calculations
    as to damages for two reasons. First, they argue that Mr. Zafar is not
    impartial and that his conclusions were a pure exercise in advocacy, not
    expert opinion. Second, they also argue that his report should be rejected as
    it created profits where none had been earned. Specifically, in their factum, the
    Esmails argue that Mr. Zafar:

·

failed or deliberately refused to consider the 2002 MLS Listing
    regarding the rental income

·

constructed an elaborate projection of rental income from one
    single piece of evidence, namely, the rent received during the month of
    November, 1989

·

applied his revenue formula on a straight-line basis, and did
    not adjust his rental calculations of light [
sic
] of the known rental
    income in 2002 and

·

made no attempt to compare the end result to the actual rents
    paid 11 years later when the property sold in 2002.

On this basis, the Esmails argue that [t]here is no
    evidence to substantiate Zafars conclusion that in 2002 the rental income
    would have been anywhere near $3,377 per month, which is the ultimate
    conclusion of his damage calculation, as accepted by Justice Greer in awarding
    damages.

[52]

Mr.
    Pirani argues that his expert, Mr. Zafar, was well qualified, impartial and
    based all of his calculations on assumptions that the trial judge found to be
    reasonable. The trial judge assessed Mr. Zafars testimony and found that he
    was in no way trying to be an advocate for Piranis position. The trial judge
    carefully reviewed the assumptions used by Mr. Zafar in preparing his report
    and these were found to be realistic and reasonable. As a result, Mr. Pirani
    submits that the trial judges reliance on the Zafar report was well founded
    and entitled to deference.

[53]

The
    Esmails also argue that the trial judge erred in rejecting Mr. Esmails
    evidence as to the existence of an oral agreement between him and Mr. Pirani to
    the effect that Mr. Pirani was responsible for the payment of realty taxes for
    the property, and that Mr. Esmail was responsible for the payment of all other
    expenses.

[54]

With
    respect to the Esmails allegation of an oral agreement as to the payment of
    taxes, I see no basis to interfere with the trial judges finding in this
    regard. Mr. Pirani denied the existence of such an agreement. Only Mr. Esmail
    testified to its existence. The trial judge rejected Mr. Esmails evidence and
    accepted the testimony of Mr. Pirani. As noted earlier, these findings of credibility
    are well supported and entitled to deference on appeal. In any event, it makes
    little sense that Mr. Pirani, who received none of the rental revenue, would
    agree to pay all of the property taxes without receiving any accounting from
    Mr. Esmail as to what he did with the rental income he was receiving.

[55]

In
    my view, however, the trial judge erred in accepting and relying on the Zafar
    report. I acknowledge that a trial judges factual findings are entitled to
    deference:
Housen v. Nikolaisen
, [2002] 2 SCR 23. However, factual
    findings are not subject to appellate deference where they are clearly wrong:
H.L. v. Canada (Attorney General),
[2005] 1 S.C.R. 401. Although the
    assumptions underlying Mr. Zafars rental calculations may appear reasonable in
    the abstract, his conclusions with respect to rental income do not withstand
    scrutiny when tested against the evidence led at trial. Because the amount of
    rental revenue derived from the property is a critical factor in determining
    whether the property generated a profit, that figure must be carefully
    assessed.

[56]

To
    start, Mr. Zafar accepted the rents listed in the Spagnuolo report for the
    property for 1989. He then assumed that the rents would increase, annually, by
    the maximum allowed by law. He discounted these increases by 25% in order to
    be conservative in his calculations. Mr. Zafar also applied publicly
    available vacancy data to account for the loss of rental revenue due to
    vacancies. Using this formula, he calculated the rental revenue for the
    property in each of the years from 1989 to 2002. Mr. Zafar estimated that the
    monthly rental revenue had reached $3,377.30 in 2002. According to Mr. Zafar,
    the annual rental revenue on the property was $40,527.60 in 2002.

[57]

The
    evidence at trial demonstrates that the monthly rental revenue from the
    property was closer to $2,240 in 2002. Thus, even if we assume that there were
    no vacancies whatsoever in 2002, the annual rental revenue would total $26,880.
    The difference in rental income between this number and Mr. Zafars estimate is
    $14,000 per year by 2002. There is simply no way to reconcile these figures.

[58]

The
    evidence showing that the rental revenue in 2002 was well below the $3,377.30
    assumed by Mr. Zafar is overwhelming, uncontradicted and corroborated in large
    measure by the written record. The evidence is as follows:

1.

The MLS listing
    for the sale of the property in 2002 was made an exhibit at trial. It states:
    Ideal for investors/users*apprx. $2,240/month (includes utilities). At trial,
    it was clear that Mr. Pirani selected the real estate agent, met with him to
    discuss the sale of the property and was present, along with Mrs. Esmail, when
    the listing agreement was signed. According to Mrs. Esmails testimony, it was
    Mr. Pirani who showed me the real estate listing that I am supposed to sign
    because I am the owner, so I signed it. She also testified that she did not
    provide any of the information that was included in the listing and that she
    did not read the listing before signing it.

2.

Mr. Esmail
    testified that the $2,240 monthly rental figure in the MLS listing was more or
    less accurate. Although the trial judge preferred Mr. Piranis evidence over
    the evidence of the Esmails, there was no conflict in their evidence with
    respect to the listing agreement. From the evidence, it is apparent that Mr.
    Pirani would have been most familiar with the contents of the listing agreement.
    Moreover, because the listing agreement was prepared well before the dispute
    arose, there would have been no reason for the Esmails or Mr. Pirani to
    misstate the rental income. In fact, both the Esmails and Mr. Pirani had an
    interest in reporting higher rental figures because rental revenue would be a
    significant factor in the purchase price of the property.

3.

Two
    acknowledgment from tenant forms dated October 31, 2002 were filed as
    exhibits. One lists the rent for the upstairs unit at $1,065. The other lists
    the rent for the basement unit at $623. Together, these figures total $1,688 in
    rent per month. There is no similar form for the garage unit. From the various
    records filed at trial, and accepted by both experts, it appears that the rent
    for the garage unit was similar to the rent being charged for the basement
    unit. This would put the monthly rental income for the entire property at
    approximately $2,311 per month.
[1]
Although neither of the acknowledgement from tenant forms is signed by the
    tenants, Mrs. Esmails signature appears on both forms, and the forms were
    accompanied on closing by a declaration made by Mrs. Esmail confirming the rent
    figures. The forms provided the tenants names should anyone have wished to
    confirm the rental rates.

4.

Mr. Jiwa, the
    lawyer who handled the closing of the sale of the property in 2002, testified
    that there were two tenants in the property, and that the only other unit, the
    unit in the garage was vacant at the time. He also confirmed that the
    acknowledgement from tenant documents and accompanying declaration by Mrs.
    Esmail were provided to the purchasers solicitor as part of the closing.

5.

Mr. Shaikh, who
    purchased the property in 2002, confirmed that he was provided with a copy of
    the closing documents. He testified that after purchasing the property he was
    making between $1,200 and $1,300 per month in rental income. This included
    rental income from the three bedroom unit upstairs and the basement unit. Mr.
    Shaikh testified that he was not collecting rent from the illegal garage unit
    because he had kicked out the tenants who were living there. This evidence
    suggests that the total monthly rental revenue from the property was even lower
    than the $2,240 shown in the MLS listing.

6.

The fact that,
    at the time of the sale in 2002, the property had only three tenancies rather
    than the five reported in Mr. Zafars report is supported by correspondence
    produced from Mr. Jiwas file. In the file was a copy of a letter from Standard
    Insurance and a letter from Mr. Sanwalka, the solicitor for the purchaser. Both
    letters comment on the fact that the property was not warranted for a
    triplex.

7.

The copies of
    rental cheques dated in 2002 that were produced by the Esmails confirm the
    names of some of the tenants and provide support for the rental income figures
    shown on the listing agreement and the information set out in the acknowledgement
    from tenant documents given to the purchaser on closing.

[59]

Why
    the trial judge did not deal with this evidence in any substantive way is not
    clear. The fact is, however, that it is apparent from the record that Mr.
    Zafars estimate of the rental income from the property is grossly overstated.
    For the final year alone, the income appears to be overstated by $14,000. Given
    the large difference between Mr. Zafars rent estimates and the rents reported in
    the evidence led at trial, the results of Mr. Zafars analysis and his estimate
    of profit simply do not withstand scrutiny. As an experts report is only as
    good as the underlying data and assumptions, Mr. Zafars report is virtually
    valueless: See
Di Martino v. Delisio
(2008)
, 168 A.C.W.S. (3d) 870 (Ont. S.C.), at para. 127. In my
    view, the statement expertise commands deference only when the expert is
    coherent applies to Mr. Zafars calculations: R.P. Kerans,
Standards of
    Review Employed by Appellate Courts
(Edmonton: Juriliber, 1994), cited with
    approval in
Canada (Director of Investigation and Research) v. Southam Inc.
,
    [1997] 1 S.C.R. 748. I therefore conclude that the trial judge ought to have
    rejected Mr. Zafars report given that the critical underlying assumption as to
    the rental income in 2002 cannot be reconciled with the uncontradicted oral and
    documentary evidence led at trial.

ii.

Should the award of aggravated damages be set aside?

a.

The Functus
    Issue

[60]

The
    Esmails argue that after issuing her initial judgment, the trial judge ought
    not to have sought further submissions on the issue of aggravated and exemplary
    damages. By the time the submissions on aggravated and exemplary damages were
    received by the trial judge, Mr. Piranis lawyer had already had the initial
    judgment issued and entered. In these circumstances, the Esmails argue, the
    trial judge was
functus
.

[61]

I
    disagree. The Supreme Court of Canada has explained the origin of the functus
    doctrine as follows:

The general rule that a final
    decision of a court cannot be reopened derives from the decision of the English
    Court of Appeal in
In re St. Nazaire Co.
(1879), 12 Ch. D. 88. The basis
    for it was that the power to rehear was transferred by the Judicature Acts to
    the appellate division:
Chandler v. Alberta Association of Architects
,
    [1989] 2 S.C.R. 848, at para. 19).

[62]

The
    underlying purpose of the functus doctrine is to allow finality of judgments
    from courts which are subject to appeal. If such courts could continually
    alter their decisions, they would assume the function of an appellate court
    and deny litigants a stable base from which to launch an appeal:
Doucet-Boudreau
    v. Nova Scotia (Minister of Education)
, 2003 S.C.R. 3, at para. 79. Thus,
    where a trial judge does not purport to alter a final judgment, the doctrine
    does not apply:
Doucet-Boudreau v. Nova Scotia
, at para. 76.

[63]

In
    the present case, the trial judge did not purport to alter or revisit her
    initial judgment. No additional evidence was called. The trial judge simply
    sought and received additional submissions on one issue, the issue of
    aggravated and exemplary damages. This was an issue that she had explicitly
    held open in her initial reasons. Her supplementary reasons dealt only with
    that outstanding issue. In other words, the supplementary reasons did not
    disturb the finality of the initial judgment.

[64]

In
    rejecting this ground of appeal, however, I should not be taken as encouraging
    such practices by trial judges. Issuing more than one judgment in a matter can
    place the parties in difficult situations and can give rise to additional
    costs. The losing party is called upon to decide whether to appeal the judgment
    without knowing the complete result and is also in the awkward position of
    having to decide whether to appeal even though the trial judge has yet to
    resolve all of the issues in dispute. Further, the losing party may, as in this
    case, have to incur additional costs because the original notice of appeal
    would have to be amended to add an appeal of the supplementary judgment. There
    is also a risk that, knowing the outcome on one or more of the issues, one of
    the parties may be at an advantage in formulating the supplementary
    submissions. Dividing judgment in this way should, therefore, be avoided. If
    doing so gives rise to real prejudice to a party, it may well constitute
    reversible error.

[65]

In
    the present case, however, the Esmails suffered no real prejudice as a result
    of the trial judges decision to seek supplementary submissions after issuing
    her initial judgment. The only consequence is that the Esmails incurred some
    small additional costs. As a result, I would dismiss this ground of appeal.

b.

The Aggravated
    Damages Award

[66]

The
    Esmails further argue that there was no legal or factual basis for the award of
    aggravated damages. I disagree. Aggravated damages are compensatory in nature,
    and take full account of the intangible injuries, such as distress and
    humiliation that may have been caused by the defendants insulting behaviour:
    S.M. Waddams,
The Law of Damages
, 2nd ed. (Toronto: Canada Law Book,
    1983) at p. 562, cited with approval in the judgment of McIntyre J. in
Vorvis
    v. Insurance Corp. of British Columbia
, [1989] 1 S.C.R. 1085, at para. 16.

[67]

The
    trial judge found the Esmails responsible for delaying and extending the length
    of the trial. Further, the trial judge viewed their conduct in administering
    the trust to be highhanded and egregious. They transferred the trust property
    without consent, ignored their duty to properly administer the trust and did
    not keep proper accounts. These findings were open to the trial judge and fully
    supported the award of aggravated damages in this case.

iii.      Should
    Mrs. Esmail be jointly and severally liable for both the compensatory and
    aggravated damages?

[68]

The
    appellants argue that Mrs. Esmail should not be liable for any damages as she
    had nothing to do with the trust arrangements between Mr. Esmail and Mr.
    Pirani. The Esmails also maintain that Mr. Pirani never asked Mrs. Esmail for
    an accounting and never considered her to be in a
fiduciary
relationship with him.

[69]

I
    disagree. The record supports the trial judges finding that, in 1994, when she
    received title to the property, Mrs. Esmail would have become aware of the
    declaration of trust and that the property being transferred was trust
    property. Her knowledge of the trust, her acceptance of title to the trust
    property and her administration of the property for eight years fully justify
    the trial judges conclusion that Mrs. Esmail owes a fiduciary duty to Mr.
    Pirani. Mrs. Esmails failure to maintain proper records and her failure to
    account to Mr. Pirani for her administration of the trust property constitute
    breaches of her trust obligations.

[70]

I
    do not, however, see any basis for making Mrs. Esmail liable to Mr. Pirani for
    damages incurred before she became involved with the property in 1994. Nothing
    suggests that she was aware of or participated in any of the breaches committed
    by Mr. Esmail before 1994. As a result, I would find Mrs. Esmail jointly and
    severally liable only for those damages incurred after the 1994 transfer to her
    of the trust property.

[71]

As
    to the aggravated damage award, I would not interfere with the trial judges
    finding that Mrs. Esmail is jointly and severally liable. These were awarded as
    a consequence of the conduct of both Mr. and Mrs. Esmail.

iv.      Should
    the award of substantial indemnity costs be set aside?

[72]

The
    trial judge awarded substantial indemnity costs of $87,655.14, four fifths to
    be paid by the Esmails and one fifth by the cross-appellant, Mr. Jiwa. The
    Esmails submit that the trial judge erred in awarding substantial indemnity
    costs, and that the costs award was excessive and well beyond the reasonable
    expectations of the parties. The Esmails explain that they could not have
    expected to pay such a large costs award because Mr. Piranis statement of
    claim contained no claim for costs, let alone a claim for costs on a
    substantial indemnity basis. The Esmails also argue that the trial judge was
    penalizing them twice for their breaches of trust and their conduct at trial. They
    argue that the award of aggravated damages was made to compensate Mr. Pirani
    for this conduct, and that the award of substantial indemnity costs on the same
    basis represents double recovery for Mr. Pirani.

[73]

In
    my view, the trial judge was entitled to rely on what she considered to be
    highhanded and egregious conduct on the part of the Esmails as the basis for
    both the award of aggravated damages and for the award of costs on a
    substantial indemnity basis. The same conduct may properly be the origin of
    both an award of aggravated damages and an award of substantial indemnity
    costs:
Leenen v. Canadian Broadcasting Corp.
, 54 O.R. (3d) 621 (C.A.); see
    also
Hughes v. Gemini Food Corp.
(1997), 97 O.A.C. 147, 27 C.C.E.L. (2d)
    204 (Ont. C.A.). The trial judge also properly considered the principles of
    fairness and reasonableness and proportionality.

[74]

The
    Esmails complaint that they could not have reasonably expected to pay such a
    high costs award because Mr. Pirani did not claim costs on a substantial
    indemnity basis in his statement of claim is also of no moment. In his written
    submissions on costs Mr. Pirani claimed substantial indemnity costs, giving the
    Esmails ample opportunity to argue against such an award, which they did. In
    their written submissions on costs, the Esmails do not appear to have raised Mr.
    Piranis failure to plead substantial indemnity costs in his statement of claim.
    It is raised for the first time on appeal. Such an argument should only be
    entertained if the court of appeal is persuaded that all of the facts necessary
    to address the point are before the court as fully as if the issue had been
    raised at trial:
767269 Ontario Ltd. v. Ontario Energy Savings L.P.
,
    2008 ONCA 350, at para. 3, citing
Ross v. Ross
, 1999 NSCA 162, at para.
    34. Had this argument been raised at trial, Mr. Pirani may have sought to amend
    his pleading or led evidence as to the Esmails knowledge or understanding with
    respect to costs. In the circumstances, therefore, it is not a ground that this
    court should entertain on appeal. In any event, the trial judge received
    comprehensive submissions on costs and properly considered and weighed the
    reasonable expectations of the parties. I would not give effect to this
    argument.

[75]

However,
    because I would reject the Zafar report and reduce the amount of the damages
    award, the basis on which the trial judge fixed the amount of costs has
    changed. It is appropriate, therefore, that I revisit the quantum of costs.

[76]

I
    would not interfere with the trial judges determination that substantial
    indemnity costs should be awarded. She reached that conclusion based on several
    factors, including her finding that the Esmails lied under oath and destroyed
    or secreted away every single bank statement each had received over the
    lifetime of the trust, the Esmails breach of their trust and fiduciary obligations
    and their egregious conduct during the trial. These are appropriate bases for
    awarding substantial indemnity costs: see
1505986 Ontario Inc. v. Surma
,
    2010 ONSC 6956, at paras. 17-20; see also
Prinzo v. Baycrest Centre for
    Geriatric Care
(2002), 60 O.R. (3d) 474 (C.A.), at para. 76.

[77]

In
    setting the amount, however, I have to consider that I am reducing the damages
    award, which serves to make the Esmails $50,000 offer to settle somewhat more
    reasonable. In addition, the reduction in the amount recovered by Mr. Pirani
    has to be weighed in assessing what the parties would reasonably expect to
    incur and pay in costs. Those expectations will be determined with reference to
    the factors historically referred to in determining costs and may include the
    factors outlined in Rule 57.01(1):
Hague v. Liberty Mutual Insurance Co.
,
    138 A.C.W.S. (3d) 804, at para. 15. I note one further consideration. Although
    the Esmails were responsible for delays, so was Mr. Pirani. The case was
    dismissed for delay by the registrar in 2007, and Mr. Pirani changed counsel
    several times, including during the trial. Both parties, therefore, contributed
    to the escalation in costs.

[78]

Given
    all of this, I would not interfere with the trial judges award of costs on a
    substantial indemnity basis, but would revise the amount awarded. The trial
    judge effected some small adjustments reducing the amount awarded to Mr.
    Pirani. I would make a more substantial adjustment for the reasons outlined. In
    my view, the award of substantial indemnity costs should be reduced to $60,000.

THE CROSS-APPEAL

[79]

The
    trial judge found that Mr. Jiwa owed a duty to the respondent on several bases,
    including that Mr. Jiwa:

a)

ignored the
    declaration of trust sent to him by Mr. Fakirani and therefore breached his
    duty to act in the best interest of the beneficiaries of trust;

b)

ignored Mr. Fakiranis
    letter requesting that the Esmails provide a full and proper accounting;

c)

did not consult Mr.
    Pirani before accepting instructions to complete the sale after effecting a
    $10,000 reduction in the sale price; and

d)

charged Mr. Pirani for
    50% of the arrears of taxes and water accounts for the property and 50% of the
    legal fees even though Mr. Pirani only owned a one third interest.

[80]

Mr.
    Jiwa argues that there is simply no basis for the trial judges finding that he
    is liable to Mr. Pirani. He explains that he was retained to act only on the
    sale of the property and that he took instructions from the registered owner of
    the property, Mrs. Esmail, as he was required to. Further, all of these
    instructions were confirmed by the trustee named in the trust document, Mr.
    Esmail. Mr. Jiwa submits that he neither participated in nor was aware of any
    breach of trust.

[81]

I
    agree. A solicitor owes a duty to his client. Here, the owner was Mrs. Esmail,
    and the trust document indicated that the trustee was Mr. Esmail. Mr. Jiwa was
    retained by the owner, Mrs. Esmail, and took instructions from her, as is
    proper. Those instructions were confirmed by Mr. Esmail. Mr. Jiwa was never
    told that Mrs. Esmail was not authorized to sell the property nor that either
    Mr. or Mrs. Esmail was in breach of their trust obligations.

[82]

Mr.
    Fakiranis letter advised Mr. Jiwa that Mr. Pirani had an interest in the
    property as a beneficiary of the trust. That letter, however, simply requested
    that all monies payable in respect of the said property be distributed in
    accordance with the percentages set forth in the terms of the trust agreement.
    As stated by Mr. Fakirani: [a]ccordingly, my client is entitled to one third
    of the proceeds of the sale of this property. Please have a certified cheque
    for my clients share ready for pickup by my office on closing. There was no
    suggestion that the sale had not been authorized, that the Esmails were in
    breach of trust or that Mr. Pirani, as beneficiary, was somehow entitled to
    give instructions or to be consulted on the sale or its terms.

[83]

Mr.
    Jiwa fully complied with Mr. Fakiranis request, and one third of the proceeds
    of sale of the property were forwarded to Mr. Fakirani after the sale.

[84]

Several
    months following the sale of the property, and long after Mr. Piranis share of
    the proceeds had been sent to Mr. Fakirani, Mr. Fakirani wrote again to Mr.
    Jiwa advising that:

My client is eager to settle all outstanding matters with your
    client with respect to this property and request that he be provided with a
    full and proper accounting for the period this property was administered by him
    as a partnership property so that all remaining issues between them can be
    resolved to satisfaction of both.

Kindly convey this request to your
    client with instructions to comply promptly.

[85]

At
    this stage Mr. Jiwa had no retainer from either Mr. or Mrs. Esmail.
    Nonetheless, Mr. Jiwa did not, as the trial judge suggested in her reasons,
    ignore Mr. Fakiranis letter. Within five days of receipt of the letter, he
    wrote to his former client, Mrs. Esmail, stating as follows:

Enclosed please find letter
    received from Mr. Fakirani. Would you be so kind as to respond to the issues
    outlined in this letter? Thank you.

[86]

Although
    it may have been wiser for Mr. Jiwa to simply advise Mr. Fakirani that he no
    longer acted for the Esmails, his actions do not, in my view, give rise to any
    duty to Mr. Pirani, nor to any breach thereof. As for the trial judges
    suggestion that Mr. Jiwa improperly charged Mr. Pirani for 50% of the overdue
    taxes and water accounts and 50% of the legal fees, it appears that the trial
    judge misunderstood the way in which the payments were made. The payment of
    overdue taxes and water bills and the payment of the legal fees were
    disbursements deducted from the proceeds of sale of the property before
    distribution to Mr. Jiwa and Mr. Esmail of their respective shares. Because
    these payments reduce the amount available for distribution to the owners, the
    impact is as to two thirds to the Esmails and one third to the respondent, and
    not 50% to each as found by the trial judge.

[87]

As
    a result, I would allow the cross-appeal and dismiss Mr. Piranis claim against
    Mr. Jiwa.

REMEDY

[88]

I
    turn now to the issue of the appropriate remedy. The Esmails argue that a new
    trial should be ordered. In my view, little is to be gained by ordering a new
    trial. The trial judge made all of the necessary credibility findings and I see
    no basis for interfering with them. The Esmails liability to Mr. Pirani was
    clearly established. The only issue remaining is the determination of the
    proper amount of damages to be awarded given that I have rejected the Zafar
    report.

[89]

A
    new trial should not be ordered unless some substantial wrong or miscarriage
    of justice has occurred:
Courts of Justice Act
, R.S.O. 1990, Chapter C.
    43, s. 134(6).

If a new trial is ordered here, there is no reason to
    expect that additional records of the administration of the trust will be
    available. In the absence of proper records, and given that the trial judge
    rejected the Esmails reconstruction of the accounts, there is simply no solid
    basis upon which a new expert could build an accurate accounting should a new
    trial be ordered. Further, the amounts involved are relatively small and do not
    warrant the very significant costs that a new trial would involve for both
    parties. In my view, therefore, it is in the interest of justice that this
    court set the amount of damages based on the record before us and the largely
    unchallenged findings of the trial judge:
Courts of Justice Act
, s.
    134(1)(c).

[90]

With
    respect to the quantum of damages, the most difficult issue is the
    determination of whether a net profit was generated by the rental of the
    property. Mr. Pirani alleges that the property turned a profit. Mr. Esmail
    alleges that the property generated a loss. Both seem to agree that the
    property was operating at a loss at the outset. The interest rate on the
    mortgage was very high, and the market had suffered a significant reversal.
    Within a few years, however, following the refinancing of the mortgage at a
    substantially lower interest rate, the annual deficit would certainly have been
    reduced and possibly erased. Rental rates would then likely increase somewhat
    over the years, although not at the rate assumed by Mr. Zafar for the reasons
    discussed above. The property would, therefore, likely have become profitable
    at some point. This suggests to me that it is reasonable to conclude that over
    the 1989 to 2002 period, the income matched the expenditures, and that there
    was neither a net loss nor a net gain. In other words, Mr. Pirani has not
    proven that a net profit was generated, and the Esmails have not shown that the
    property was operated at a loss.

[91]

The
    Esmails, as trustees, owed a duty to Mr. Pirani to account to him on their
    administration of the trust. They received money from Mr. Pirani but cannot
    show that it was needed to cover losses in the operation of the trust property.

[92]

Taking
    all of these factors into account, I would make no award to Mr. Pirani for
    profits from the rental property. Rather, I would order the Esmails to repay
    Mr. Pirani for the contributions he made to cover losses. This is consistent
    with my conclusion that the property generated no overall loss or profit during
    the relevant period of ownership.

[93]

At
    trial, it was established that Mr. Pirani made several payments directly to Mr.
    Esmail to cover losses that had been accumulated in the early years. From 1993
    onwards, Mr. Pirani also made several realty tax payments directly to the
    municipality. Based on my conclusion that the overall income generated by
    renting the property would have equalled the overall costs of operating the
    property, Mr. Pirani ought to have been reimbursed by the Esmails for his
    contribution to losses in the early years and for his tax payments.

[94]

These
    amounts are well documented. $13,050.15 was paid directly to Mr. Esmail and
    $32,397.77 was paid to the municipality. The total is $45,447.86.

[95]

Mr.
    Esmail produced no records showing that he had to make cash contributions to
    cover shortfalls in the operation of the property. Nor did Mr. Esmail account
    for the rental revenues he and Mrs. Esmail received. There is also no suggestion
    that the Esmails reimbursed Mr. Pirani for the tax payments he made, or for his
    payments made to Mr. Esmail in the early years. I would, therefore grant
    judgment to Mr. Pirani for the $45,447.86.

[96]

I
    now turn to the other elements of the damage award made by the trial judge and
    apply the same assumption that the property generated neither an overall gain
    nor an overall loss during the period at issue.

[97]

With
    respect to the 1990 refinancing of the mortgage, the trial judge awarded $1,152.68
    to Mr. Pirani. This represents one third of the $1,285.50 in legal costs
    incurred to effect the refinancing of the mortgage as well as one third of the
    $2,171.86 paid out of the refinancing proceeds for tax and mortgage interest
    arrears. I do not consider the costs of refinancing the property an ordinary
    expense. The refinancing resulted in a lower interest rate and benefitted both
    parties. As a result, it was appropriate to deduct the $1,285.50 in legal costs
    from the proceeds of the refinancing. However, the arrears of taxes and
    mortgage interest are operating expenses and ought to have been paid out of the
    rental revenues. They should not have been paid out of the proceeds of the
    refinancing. As a result, I would award Mr. Pirani $723.95 representing one
    third of the $2,171.86 paid for tax and mortgage interest arrears. Had the
    Esmails not allowed the arrears to accumulate, these expenses would not have
    been paid out of the refinancing proceeds.

[98]

The
    trial judge awarded $12,873 representing Mr. Piranis share of net rental
    income. As I conclude that there was neither a profit nor a loss in the
    operation of the property, I would reduce this amount to zero.

[99]

The
    next award made at trial was of $45,958, representing the amount Mr. Pirani had
    contributed to expenses. It appears that the trial judge made a small
    mathematical error and, as I have set out earlier, the proper amount should be
    $45,447.86.

[100]

The trial judge
    awarded $320 on account of Mr. Piranis overpayment to Mrs. Esmail to cover the
    cost of obtaining realty tax payment records from the municipality. I see no
    basis to interfere with the amount of that award.

[101]

The trial judge
    then awarded $1166.66 representing Mr. Piranis share of an insurance payment
    made to Mr. Esmail to cover the costs of repairing damage suffered by the
    property due to vandalism. Applying my finding that there was no profit or
    loss, I would set aside this award. The insurance proceeds were used to cover
    the cost of carrying out the repairs. The repairs would have been paid by the Esmails
    and so they should receive the recovery.

[102]

The next amount
    awarded was $2,522 for money improperly deducted by Mr. Jiwa from Mr. Piranis
    share of the proceeds of sale in 2002. As I have explained, this figure appears
    to result from the trial judges belief that Mr. Pirani was charged for half
    rather than one third of the expenses paid on closing. I would recalculate this
    award applying my finding that the property experienced neither profit nor loss
    overall. On this basis, the overdue realty taxes of $7,143.20 and the overdue
    water charges of $1,962.58 paid out of the proceeds of sale should have been
    paid out of the rental revenue received by the Esmails. These arrears ought not
    to have been paid out of the proceeds of sale. As a result, I would award Mr.
    Pirani $3,035.26 representing his one third interest. The balance of the
    payments made on closing was attributable to the sale of the property and
    properly deducted.

[103]

The final amount
    awarded is $3333.33, which is one third of the $10,000 reduction effected to
    the purchase price in response to the purchasers concerns that the property
    was being operated as an illegal rooming house. I would set aside this award.
    The Esmails were authorized to carry out the sale and the reduction in the
    purchase price was necessary to allow the closing to go ahead.

[104]

In summary,
    therefore, I would substitute the trial judges award of $67,815.67 with an
    award of $49,527.07 made up of the awards of $45,447.86, $723.95, $320 and
    $3035.26 as I have explained.

[105]

The failure to pay
    Mr. Pirani the sums he was entitled to receive cannot be attributed to the
    breach by either Mr. or Mrs. Esmail alone. They both owed Mr. Pirani a duty to
    reimburse him for advances he made to cover operating deficits in the early
    years and, in later years, realty taxes. Although I have concluded that Mrs.
    Esmail should not be jointly and severally responsible for damages flowing from
    breaches of trust committed by Mr. Esmail before 1994, the damages I am
    awarding to Mr. Pirani do not fall neatly into the pre or post 1994 periods.
    For example, the advances made by Mr. Pirani to Mr. Esmail before 1994 to cover
    deficits would logically be repaid to him from profits made in later years when
    Mrs. Esmail was receiving the rents and paying expenses. As a result, I would,
    as the trial judge did, hold Mr. and Mrs. Esmail jointly and severally liable
    for the full $49,527.07.

[106]

To this award I
    would add $48,000 representing four fifths of the $60,000 in trial costs I have
    set.

[107]

I have allowed
    Mr. Jiwas appeal and dismissed the action against him. Mr. Jiwa is entitled to
    his trial costs. He represented himself at trial and submits that because
    serious allegations were made against him, substantial indemnity costs are
    warranted. I disagree. Although he is entitled to his costs because he has
    ultimately succeeded, I see no basis to award substantial indemnity costs. The
    allegations were serious but not of such a nature as to attract a substantial
    indemnity award. If the parties cannot agree on appropriate amount, brief submissions
    not exceeding three pages are to be submitted within 14 days of these reasons.

[108]

I now turn to
    the costs of this appeal. Mr. Jiwa represented himself and was totally
    successful. He seeks substantial indemnity costs of $23,369.53. In my view, he
    is entitled to his costs, but I see no basis for awarding these on a
    substantial indemnity basis. As to the amount, this was a relatively
    straightforward appeal, and Mr. Jiwas role was fairly limited. In my view, the
    appropriate award of costs is $7,000 inclusive of disbursements and applicable
    taxes.

[109]

As between Mr.
    Pirani and the Esmails, the Esmails had some success on appeal but they remain
    liable for significant sums. As a result, I would award costs to Mr. Pirani but
    in a reduced amount. Mr. Pirani claims $18,143 in costs for the appeal. I would
    award costs on a partial indemnity basis fixed at $12,000 inclusive of
    disbursements and applicable taxes.

CONCLUSION

[110]

I would allow
    the Esmails appeal in part, and amend the judgement to show the Esmails
    jointly and severally liable to Mr. Pirani for $49,527.07. I would not
    interfere with the award of aggravated damages to Mr. Pirani of $15,000. I
    would also award Mr. Pirani costs as against the Esmails in the amount of $48,000
    for the trial, and $12,000 for the appeal. Both are inclusive of disbursements
    and taxes.

[111]

I would allow
    Mr. Jiwas cross-appeal and set aside the judgment made against him. I would
    award him costs of the appeal as against Mr. Pirani fixed at $7,000 inclusive
    of disbursements and taxes.

[112]

If the parties
    cannot agree on the appropriate amount of trial costs to be awarded to Mr.
    Jiwa, I would have Mr. Pirani and Mr. Jiwa submit brief written submissions not
    exceeding three pages within 14 days of the date of this judgment.

Paul Rouleau J.A.

I agree K.M. Weiler
    J.A.


Pepall J.A. (Dissenting):

[113]

I have read my
    colleagues reasons and I agree with his disposition of the Jiwa cross-appeal. 
    With respect, I am unable to agree with his disposition of the Esmails appeal.
    He determined that while the trial judge properly rejected the report of the
    Esmails expert, she committed a reversible error in relying on the report of
    the respondents expert on damages.  Accordingly, my colleague set aside the
    trial judges damages award of $67,815.67 and conducted his own assessment of
    damages.  This resulted in an award of $49,527.07 and an attendant reduction of
    the substantial indemnity costs awarded by the trial judge.

[114]

For the reasons
    that follow, I would dismiss the Esmails appeal in its entirety.

[115]

Following a
    12-day trial, the trial judge rendered detailed reasons for the decision (170
    paragraphs in length) in which she found that the Esmails (Tajdin and Yasmin)
    were in breach of trust and had breached their fiduciary duties to the
    respondent.  As mentioned, she ordered them to pay the respondent $67,815.67 in
    damages.

Findings of Fact

[116]

The trial judge
    made numerous findings of fact.

-  The
    appellant, Tajdin Esmail, purchased and operated an illegal rooming house with
    five tenancies. It was a three bedroom bungalow with an attached two car garage
    illegally divided into two rooms.

-  The
    respondent invested in the property, and, with Tajdin, executed a trust
    declaration.  Tajdin became a trustee for the respondent.

-  Tajdin kept
    no accounts of his administration of the trust on any regular basis. He never
    operated a bank account in the name of the trust, nor did he keep records. At
    para. 41, the trial judge found that [n]either [Tajdin] nor Yasmin, after she
    was on title of [
sic
] the property, ever kept receipts for payments made
    for any of the expenses for operating the property.  Additionally, [n]ot one
    bank book or bank statement was ever produced by [Tajdin] or Yasmin during the
    seven years of litigation.

-  Tajdin
    agreed to provide the respondent with the monthly expenses but this never took
    place. The trial judge accepted the respondents evidence that he often asked
    for an accounting but never received a proper set of accounts or banking
    records.

-  The
    respondent was kept totally in the dark about the propertys operation and who
    lived there.  He was never given a list of the tenants or the rents they
    paid.  He was also never given an outline of a budget or monthly expenses or
    any of the basics about the operation of the trust property.

-  All of
    Tajdins evidence regarding the various tenancies in the property came long
    after the property became the trust asset, and after the property was sold.  At
    trial, Tajdin was never able to say with any certainty what the rental income
    was each year or even monthly, nor how it was calculated or where it was
    deposited.  Indeed, on cross-examination, Tajdin could not remember where the
    rental monies were deposited.

-  The rent
    cheques were received in Yasmins name and she had to deposit them.  She had
    several bank accounts in her own name but claimed to have no banking statements
    and requested none from the bank. Yasmin failed to produce any of her bank
    statements for the years 1994 to 2002 to show what rent was received.

-  Tajdin kept
    no proper records and produced no cancelled cheques and few receipts for any
    expenses or records of rent received by him.  Some bits and pieces of documents
    relating to the tenancies were eventually produced by the appellants and show
    that the basement apartment rented for $550 per month and required repairs not
    done, another rented for $850, and a third apartment in 1992 rented for $575.
    Another document showed $850 in rent being paid in 1996.  None of the documents
    produced was in any sequence or constituted proof of the full tenancies.

-  Tajdin
    failed to comply with an undertaking he gave on his examination for discovery
    to provide a list of the names of each of the tenants and their last telephone
    numbers.  He failed to do so during the six years thereafter through and
    including the conduct of the trial.

-  The absence
    of records pointed to the appellants destruction of their own banking records
    so as to prevent the respondent and the court from knowing, among other things,
    the actual rents received, how much was in cash and how much was paid by
    cheque. Tajdin deliberately destroyed or withheld all banking information and
    documents that may have shed some light on what actually took place.  Yasmin
    also either destroyed or withheld producing all of the banking documents.

-  The trial
    judge accepted the respondents evidence in preference to that of the
    appellants where their evidence differed.

-  Tajdin was
    not a credible witness.

-  Yasmin was
    not a credible witness.

-  The
    appellants expert, Mr. Spagnuolo, and the respondents expert, Mr. Zafar, both
    agreed that there was a lack of source documents produced by the appellants and
    that major records such as annual financial returns, bank records and copies of
    rental cheques all were missing.

-  The trial
    judge considered the appellants expert, Mr. Spagnuolo.  She noted that he was
    critical of Mr. Zafars analysis in coming up with an amount owed by the
    appellants to the respondent.  At para. 136, she wrote: He consistently says
    that Zafar did not provide any evidence that he relied on independent
    analysis.  In my view, Zafar used all sources available to him and examined
    personally all documents available.  Although Zafar had to rely on [Tajdins]
    statement as to rents, as a beginning point, so did Spagnuolo.

-  Mr. Zafar
    was completely independent and was in no way trying to be an advocate for the
    respondents position.

-  Mr. Zafar
    properly used the vacancy rates from Canada Mortgage and Housing Corporation
    (CMHC) for the years 1989 to 1998 and, as CMHC did not provide statistics for
    the years 1999 to 2002, he used research conducted by the Sauder School of
    Business to determine rates for those years, which the trial judge accepted as
    reasonable.

-   As for the
    Esmails evidence that rooms which had  been rented separately were combined as
    one rental unit, the trial judge found that there was no clear evidence as to
    when and where this happened, and why the respondent was not told or consulted
    if this did take place.  For rental purposes, Mr. Zafar therefore used the
    original separate unit rental income to calculate gross rental income.  The
    trial judge accepted Mr. Zafars reasoning in para. 5 of his report about why
    he did not accept that rental figures went down or that there was a decrease in
    rentals, as Mr. Spagnuolo had asserted.

-        The
    trial judge accepted Mr. Zafars reasoning about the rentals.  As noted by my
    colleague, the trial judge considered Mr. Zafars estimates of the rental
    increases and the vacancy rates to be drawn from reliable sources and
    reasonable in the circumstances.

-  Mr. Zafar
    adjusted the rent figures by applying a 25% discount to rental increase rates
    which the trial judge considered reasonable and a further discount for vacancy
    rates.  She determined that $12,873 was owing to the respondent for rents.

[117]

Absent palpable
    and overriding error, a trial judges findings of fact are entitled to
    deference.

Discussion of Grounds of Appeal

[118]

The appellants
    outlined the grounds they intended to advance in their factum and the
    respondent responded to each of the issues in his factum.  There are four in
    number.

[119]

First, the
    appellants submitted that the trial judges conclusion regarding a 1993
    agreement between the parties was an error and undermined her findings as to
    damages, aggravated damages and substantial indemnity costs.  I agree with my
    colleague that effect should not be given to this ground of appeal.

[120]

Secondly, the
    appellants submit that Mr. Zafar was not an impartial expert and was an
    advocate for the respondent. I agree with my colleague that no effect should be
    given to this ground of appeal.

[121]

Thirdly, the
    appellants submit that there was no proper basis in fact and in law for
    aggravated damages and for Yasmin being jointly and severally liable to the
    respondent for both the compensatory damages and aggravated damages.  Again, I
    agree with my colleague that no effect should be given to this ground of
    appeal.

[122]

Lastly, the
    appellants submit that the trial judge erred by improperly inviting further
    submissions after rendering her judgment. Again, I agree with my colleague that
    this argument has no merit.

[123]

Assessment of
    damages was not one of the four issues identified.  That said, under the
    heading Was Mr. Zafar an Impartial Expert or Was he an Advocate, the
    appellants do question Mr. Zafars revenue projections and the absence of a
    consideration of the 2002 listing agreement by him. They state that his
    conclusions were a pure exercise in advocacy and not expert opinion.  They also
    state that the trial judge erred in relying on them. The appellants did not
    assert that there were any palpable and overriding errors arising as a result
    of the trial judges reliance on Mr. Zafars report.

[124]

The second
    ground of appeal raised Mr. Zafars independence and the trial judge found him
    to be independent.  At para. 137, she found that he was in no way trying to be
    an advocate for Piranis position.  She also said that Mr. Spagnuolo was not
    independent.

[125]

A trial judges
    decision on the independence of an expert is entitled to deference,
per
OConnor A.C.J.O. in
Alfano v. Piersanti
, 2012 ONCA 297, at paras.
    113-114. Recently, this court stated in
D.M. Drugs Ltd. v. Bywater
,
    2013 ONCA 356, at para. 47:

An appellate court will not interfere with the evidentiary
    findings of the trial judge unless they have no basis in the evidence: see
Goodman
    v. Viljoen
, 2012 ONCA 896, 299 O.A.C. 257, at para. 142.  This standard is
    equally applicable for the admissibility and weight to be attached to expert
    opinion: see
Piersanti
, at para. 113.

[126]

My colleague
    takes issue with Mr. Zafars reconstruction of the rental revenue.  However, I
    note that:

-

this would not
    be an issue had the appellants not withheld or destroyed the source documents
    on rental revenue;

-

the production
    of records reflecting rental income, including banking records, was in the
    control of the appellants, not the respondent;

-

the two experts
    had identical starting points for rental revenue;

-

in the absence
    of records, there is no basis to conclude, as my colleague does, that there was
    neither a net loss nor a net profit between 1989 and 2002;

-

Mr. Zafar
    discounted the rates by 25%, as discussed;

-

the maximum
    rental increase allowed by Mr. Zafar ranged between 2.6% and 6% during the
    relevant time period; and

-

the trial judge
    accepted Mr. Zafars methodology and  conclusions with the exception of his
    conclusions on an appropriate rate of interest on the amounts owing to the
    respondent, which she rejected.

[127]

My colleague
    relies on seven particular pieces of evidence in support of his conclusion that
    the monthly rental was closer to $2,240 than $3,377.30 in 2002. He states that
    the evidence in this regard is overwhelming, uncontradicted and corroborated in
    large measure by the written record.  With respect, I cannot agree.  This case
    was characterized by a complete failure on the part of the appellants to
    produce comprehensive records of any kind. Their evidence on rental income was
    selective and wholly lacking.  Moreover, the evidence relied upon by my
    colleague does not demonstrate that the trial judges findings of fact were
    clearly wrong or that there was palpable and overriding error.

[128]

Firstly, my
    colleague makes much of the listing agreement.   The trial judge was alive to
    the 2002 MLS listing, referring to it twice in her reasons.  Furthermore, the
    record is largely devoid of evidence on the listing agreement.  Significantly,
    there is no evidence on who provided the rental information contained therein
    or on its accuracy.  The trial judge made numerous findings to the effect that
    the Esmails never provided the respondent with proper, intelligible accounts
    and those findings are not in issue on this appeal.  As such, there is no
    explanation as to how the respondent would have known the monthly rental income
    in 2002 which knowledge my colleague in essence now purports to attribute to
    him.

[129]

Secondly, my
    colleague relies on the evidence of the appellants regarding the accuracy of
    the rental figures in the listing agreement.  The trial judge not only found
    that she preferred the respondents evidence to that of Tajdin, she also made
    separate and independent findings that each of Tajdin and Yasmin was not a
    credible witness. In oral argument, counsel for the Esmails stated that he did
    not seek to reverse these multiple adverse findings of credibility.

[130]

Thirdly, my
    colleague relies on the respondents presence when the listing agreement was
    signed and suggests that he would have been familiar with its contents.
    However, as mentioned, the respondent had no way of knowing whether the rental
    figures in the listing agreement were correct. Further, I do not agree that the
    parties had no reason to misstate the rental income in the listing. As the
    property was operated as an illegal rooming house with five tenancies, 
    understated monthly rental revenue would not be surprising.  For their part,
    the Esmails would have had an incentive to understate the rent given that net
    profits had not been paid to the respondent.

[131]

Fourthly,
    nothing should be properly drawn from the mere two acknowledgement of tenant
    forms in circumstances where the appellants undertook and failed to produce
    tenants names and contact information so that rental information could be
    confirmed.

[132]

Fifthly, unlike
    the appellants, the new purchaser did not lease the two illegal units in the
    garage. Mr. Jiwa, as solicitor for the vendor, wrote to Mr. Sanwalka, the
    solicitor for the purchaser, stating: The property has been in the same state
    since purchased by my clients about 14 years ago.  As noted by my colleague in
    para. 8 of his reasons, the property had five tenancies.  This reflected the
    facts outlined in the appellants factum and the trial judges findings of
    fact.

[133]

Sixthly, Mr.
    Zafar was not questioned on the 2002 listing agreement that contained the
    $2,240 monthly rental figure relied upon by my colleague.   He was never asked
    whether that document was relied upon and if not, why not.  In these
    circumstances, with respect, it cannot be said that his conclusions with
    respect to rental revenue do not withstand scrutiny.  Moreover, he did explain
    why he did not consider the few monthly rental cheques produced by the
    appellants (15 cheques in 13 years) to be reliable indicators of rental
    revenue.

[134]

In my view, it
    was open to the trial judge to make the factual findings she did and to accept
    the evidence proffered by Mr. Zafar in the circumstances of this case.  It is
    not for this court to reconstitute itself as the trial judge.  As the Supreme
    Court stated in
Canada (Attorney General) v. Bedford
, 2013 SCC 72, at
    para. 49, although admittedly in an entirely different context, the first
    instance judge determines the facts, while appeal courts review the decision
    for correctness in law or palpable and overriding error in fact; this division
    of labour is basic to our court system.  The trial courts responsibility for
    findings of fact is [t]he greatest functional distinction between a trial and
    an appellate tribunal: John Sopinka and Mark A. Gelowitz,
The Conduct of
    an Appeal
, 3rd. ed. (Toronto: LexisNexis, 2012), at p. 70.

[135]

A palpable and
    overriding error is one that is plainly seen and clearly wrong:
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 6;
H.L. v.
    Canada (Attorney General)
, 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 69
    The appellate court must be certain that the trial judge erred:
H.L.
, at
    para. 70.  The limited scope for appellate review of findings of fact by a
    trial court applies equally to findings based on expert testimony:
N.V.
    Bocimar S.A. v. Century Insurance Co. of Canada
, [1987]

1 S.C.R.
    1247
,
at p. 1249.  In my view, the trial judge made no error of law nor
    any palpable and overriding error in fact with respect to the Esmail action. 
    Deference is owed to the trial judges considered findings. Moreover, an
    assessment of damages based on the written record before us demands speculation
     an exercise that should be avoided.

[136]

For all of these
    reasons, I would dismiss the Esmails appeal. I would allow Mr. Jiwas
    cross-appeal on the terms proposed by my colleague.

Released:

FEB 26 2014                          S.E. Pepall J.A.

W





[1]
The upstairs had originally been rented as three separate rooms but had been
    consolidated into one rental unit sometime before 2002.


