



COURT OF APPEAL FOR ONTARIO

CITATION: JBN Medical
    Diagnostic Services Inc. v. 1527877 Ontario Inc.,

2014 ONCA 413

DATE: 20140521

DOCKET: C57602

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

JBN
    Medical Diagnostic Services Inc.,

Jojaz Holdings Inc. and
    William Nisker Holdings Inc.

Plaintiffs (Respondents)

and

1527877
    Ontario Inc., 1449312 Ontario Inc.,

Fausto
    Carnicelli, Werner Dingfeld,

Halton
    Family Health Centre Inc.

and
    Stresa Gruppo Inc.

Defendants (Appellants)

AND BETWEEN

1449312
    Ontario Inc.,

Fausto
    Carnicelli, Werner Dingfeld,

Halton
    Family Health Centre Inc.

And Stresa Gruppo Inc.

Plaintiffs by Counterclaim

(Appellants)

and

JBN
    Medical Diagnostic Services Inc.,

Jojaz
    Holdings Inc., William Nisker Holdings Inc.,

Joseph Berlingieri and
    William Nisker

Defendants by Counterclaim (Respondents)

Howard W. Reininger, for the appellants

Stuart M. Law, for the respondents

Heard: May 14, 2014

On appeal from the judgment of Justice Robert J. Nightingale
    of the Superior Court of Justice, dated August 21, 2013.

ENDORSEMENT

[1]

This appeal concerns the interpretation of a settlement agreement that
    resulted from a lawsuit about the personal appellants misappropriation of a
    business they owned jointly with the respondents. In accordance with the
    settlement agreement, the respondents obtained an accounting that indicated
    that the appellants owed an additional $528,113. The appellants disputed this
    accounting. As a result, the respondents brought a motion seeking an order that
    the appellants pay this amount under the settlement agreement. In the court
    below, Nightingale J. found in favour of the respondents and ordered the
    appellants to pay the additional $528,113 and partial indemnity costs for the
    entirety of the proceedings. The appellants now appeal.

[2]

The appellants grounds of appeal relate to the motion judges
    acceptance of the evidence from the respondents expert, an accountant named
    Mr. Mastroluisi. The appellants submit that the motion judge erred in finding
    there are additional monies owing to the respondents for:

1)

management fees,

2)

professional fees,

3)

benefits when payments
    were made by Halton Financial Health (HFH) from loans to HFH from the
    appellants.

[3]

In addition the appellants submit that the motion judges costs award
    should be varied and that the costs allowed for the expert should be varied as
    well.

[4]

We would not give effect to any of the appellants arguments. The issues
    raised are factual issues and deference is owed to the trial judges findings.
    The appellants submissions focus entirely on the alleged partiality of Mr.
    Mastroluisi and alleged frailties with his evidence. The appellants did not
    object to the admissibility of Mr. Mastroluisis report in the court below. While
    the appellants complain that the requirements of r 53.03(1) of the
Rules of
    Civil Procedure
concerning the admissibility of Mr. Mastroluisis report
    were not met, given that there was no objection to the admissibility of the
    report, the rule has no applicability here. The motion judge devoted
    considerable attention to assessing Mr. Mastroluisis credentials. Mr. Mastroluisis
    report was the only expert report adduced on the motion. The appellants chose not
    to file any expert report. The motion judge had a discretion as to how much
    weight to give to Mr. Mastroluisis report. He exercised that discretion and
    the appellants have not shown any error in principle on the part of the motion judge.
    The motion judge did not err in preferring Mr. Mastroluisis evidence to the
    evidence of Mr. Dingfeld, an interested party. The motion judges conclusions
    of fact are entitled to deference in the absence of palpable and overriding
    error. The appellants have in essence reargued the motion before us and have
    not pointed to any palpable and overriding error on the part of the motion judge.
    Similarly, the motion judge made no error in his award with respect to costs or
    expert fees.

[5]

Accordingly the appeal is dismissed. Costs of the appeal are to the
    respondents fixed in the amount of $18,000 inclusive of all disbursements and applicable
    taxes.

Karen
    M. Weiler J.A.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.


