



COURT OF APPEAL FOR ONTARIO

CITATION: Weisberg v. Dixon, 2021 ONCA 491

DATE: 20210706

DOCKET: C68364

Fairburn A.C.J.O., Lauwers and
    Harvison Young JJ.A.

BETWEEN

Dr. Fay Weisberg and Fay G.
    Weisberg Medicine Professional Corporation

Plaintiffs
    (Appellants
/

Respondents
    by way of cross-appeal)

and

Dr. Marjorie Dixon and 2435665
    Ontario Inc.

Defendants
    (Respondents/

Appellants
    by way of cross-appeal)

Arthur
    Yallen and James Lawson, for the appellants
/respondents by way of cross-appeal

Kevin
    OBrien, Lauren Harper and Marleigh Dick, for the respondents/appellants by way
    of cross-appeal

Heard: June 8, 2021 by video conference

On appeal from the judgment of Justice Shaun
    S. Nakatsuru of the Superior Court of Justice, dated April 24, 2020, with
    reasons reported at 2020 ONSC 2536.

REASONS FOR DECISION

Factual Overview

[1]

Dr. Fay Weisberg and Dr. Marjorie Dixon are
    fertility doctors who practised together for a number of years.

[2]

While the parties, along with another doctor, were once the officers and
    directors of First Steps Fertility Inc., that entity was defunct and had not
    filed income tax returns for some time. Dr. Dixon eventually planned to open a
    new fertility clinic at a new location.

[3]

In September 2014, Dr. Dixon incorporated
2435665
    Ontario Inc
. with the intention of naming her new fertility clinic
    First Steps Reproductive Health. This clinic was eventually named Anova
    Fertility & Reproductive Health. While she offered Dr. Weisberg the opportunity
    to invest as a minority shareholder in the new corporation, Dr. Weisberg
    eventually declined to do so on August 21, 2015.

[4]

On October 28, 2015, Dr. Dixon completed and submitted a funding
    application to obtain lucrative government funding for fertility treatments. Dr.
    Dixon stated that the name of the fertility clinic applying for funding was
    First Steps Reproductive Health. Therefore, the funding application was made
    for Dr. Dixons new fertility clinic. In that funding application, Dr. Dixon
    made reference to Dr. Weisberg and her experience and Electronic Medical
    Records data. While Dr. Weisberg testified at trial that she was unaware that Dr.
    Dixon had received and filled out the funding application until the day it was
    due and that she did not know that the application was filled out on behalf of
    the new fertility clinic, the trial judge rejected her evidence on this point,
    preferring the evidence of Dr. Dixon.

[5]

As well, although Dr. Weisberg testified that she never intended to move
    to the new location, the trial judge rejected her evidence on this point,
    instead finding that, while she was originally intending to move to the new
    location at the time of the preparation of the funding application, she changed
    her mind soon after receiving Dr. Dixons draft Senior Associate Agreement on
    January 20, 2016. This Agreement placed Dr. Dixon as the principal physician of
    the new fertility clinic, while Dr. Weisberg would be an associate. It also
    contained terms that Dr. Weisberg found to be insulting. On February 4, 2016,
    Dr. Weisberg informed Dr. Dixon that she would not be moving to the new fertility
    clinic. That conversation led to the breakdown of their professional
    relationship.

[6]

Dr. Weisberg sued Dr. Dixon, claiming that Dr. Dixon had filled out the
    government funding application without her knowledge, thereby depriving her of that
    funding. She said that this constituted a breach of fiduciary duty. Dr.
    Weisberg also claimed that Dr. Dixon was unjustly enriched by her actions. In
    lengthy and considered reasons, rooted squarely in factual findings linked to
    credibility assessments, the trial judge rejected Dr. Weisbergs arguments and dismissed
    the action.

Analysis

[7]

First, this appeal is predicated largely on objections to the trial
    judges findings of fact. According to Dr. Weisberg, the trial judge made
    numerous palpable and overriding errors in his factual determinations regarding
    the alleged fiduciary duty and unjust enrichment. We do not intend to explore
    every factual issue raised. In our view, Dr. Weisberg is attempting to
    relitigate the factual issues that were live before the trial judge, issues
    that he directly confronted and resolved. The trial judges factual findings
    are grounded in the evidence and solid assessments of credibility. As the trial
    judge said, he was not able to accept [Dr. Weisbergs] testimony on the key factual
    matters where it differed from Dr. Dixon.

[8]

It is not for this court to revisit those credibility assessments
    or factual conclusions. We have been shown no basis upon which to do so. Simply
    put, there are no palpable and overriding errors in the trial judges factual
    findings.

[9]

Second, Dr. Weisberg maintains that the trial
    judge erred by finding that Dr. Dixon did not owe her a fiduciary duty. We see
    no error in the trial judges approach to this issue. He correctly concluded
    that one of the fundamental prongs of a fiduciary relationship  an
    undertaking by the alleged fiduciary to act in the best interests of the
    beneficiary  was absent:
Alberta v. Elder Advocates of Alberta Society
,
    2011 SCC 24,
[2011] 2 S.C.R. 261, at para. 36
. On the evidence and the factual conclusions reached by the trial
    judge, the absence of an express undertaking or even an implied undertaking was
    fatal to the claim. Moreover, even if a fiduciary duty existed, Dr. Dixon did
    not breach that duty because, based on the trial judges factual conclusions, Dr.
    Dixon acted honestly and did what the parties agreed to do regarding the
    funding application.

[10]

Third, and finally, in claiming that Dr. Dixon
    was unjustly enriched by her actions at Dr. Weisbergs expense, Dr. Weisberg argues
    that the trial judge erred by concluding that there was a juristic reason for Dr.
    Dixons enrichment. The difficulty with this argument is that the trial judge
    concluded that Dr. Dixon filled out the application for government funding in
    an honest way, in accordance with the agreement of the parties. Specifically,
    the trial judge found as a fact that at the relevant time the funding application
    was made, Dr. Weisberg had agreed to move to the new fertility clinic at the
    new location, where she would benefit from the funding. It was only later that Dr.
    Weisberg changed course on this decision.

[11]

Therefore, we see no error in the trial judges
    approach to this issue, simply returning to the trial judges finding, as
    supported by the evidence, that Dr. Weisbergs ultimate exclusion from the
    funding arose from decisions she made before and after the funding had been
    obtained: she declined to invest as a minority shareholder in Dr. Dixons new
    corporation on August 21, 2015; and she ultimately decided not to move to the new
    fertility clinic on February 4, 2016.

[12]

It was open to the trial judge to find, based
    upon the factual backdrop at trial, that Dr. Dixon met her onus in establishing
    a juristic reason for her enrichment. As the trial judge said: morally, Dr.
    Dixons claim to the enrichment is not at all tenuous. There is no wrong-doing
    by her that she is profiting from. It was effectively decisions made by Dr.
    Weisberg that have led to the situation where she is unable to access
[the]
funding.

[13]

In light of our conclusions on the previous
    points, there is no need to address the alleged errors in the trial judges
    assessment of damages, an assessment he gave in the alternative should he have
    been found to have erred in dismissing the claim. We have concluded that he did
    not err, and so there is no need to reach the issues regarding damages. This is
    equally true as it relates to the cross-appeal, which need not be addressed.

Disposition

[14]

The appeal is therefore dismissed.

[15]

Costs will be paid to the respondents in the agreed
    upon amount of $15,000, inclusive of disbursements and applicable taxes.

Fairburn
    A.C.J.O.

P.
    Lauwers J.A.

A.
    Harvison Young J.A.


