



COURT OF APPEAL FOR ONTARIO

CITATION: Sabongui v. Soon-Shiong, 2019 ONCA 64

DATE: 20190128

DOCKET: C65426

Rouleau, van Rensburg and Benotto JJ.A.

BETWEEN

Andre Sabongui and Maribeth Sabongui

Plaintiffs/ Defendants by Counterclaim
(
Respondents
)

and

Dr. Greg Soon-Shiong and
    Pinnacle Diagnostics Inc.

Defendants/Plaintiffs by Counterclaim
(
Appellants
)

Jeffrey Kaufman, Bradley Adams and Diana Blesko, for the
    appellants

Jamie Spotswood and Anna-Catherine Norwood, for the
    respondents

Heard: January 25, 2019

On appeal from the judgment and order of Justice Markus Koehnen
    of the Superior Court of Justice, dated March 29, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The appellants argue that the trial judge erred in finding that they had
    been unjustly enriched by the transfer for no payment of two valuable licenses.
    They maintain that the parties had tried but were unable to reach a contractual
    agreement.

[2]

In their submission where, as in this case, there is a failed contract
    negotiation, a court cannot use unjust enrichment to, in effect, impose a
    contract on the parties. In that regard, the appellants rely on
Skibinski
    v. Community Living British Columbia
, 2012 BCCA 17.

[3]

We reject this submission. This is, in effect, the same submission that
    was made and rejected at trial. As explained by the trial judge, the
    circumstances in
Skibinski
were materially different than those of the
    present case.
Skibinski
did not involve obtaining a valuable asset
    without consideration and the court in that case found that there was no
    reasonable expectation of payment.

[4]

In the present case, the trial judge found as a fact, based on the
    record before him, that the appellants had no reasonable expectation that they
    were to receive the licenses for nothing.

[5]

The appellants further argue that the trial judge erred in reaching this
    conclusion. They submit that in making the finding that at the time of the
    transfer of the licenses, the appellants had no reasonable expectation of receiving
    the licenses for nothing, the trial judge improperly relied on post transfer
    evidence. We disagree. The trial judge was entitled to and in fact, required to
    consider all admissible evidence in making his findings.

[6]

The appellants further submit that the equitable remedy was not
    available because the respondents  having misrepresented facts to the Ministry
     did not come to the court with clean hands. Again, we disagree. The
    respondents conduct of which the trial judge was aware, did not relate to the
    benefit conferred on the appellants and did not bar the claim.

[7]

The appellants also challenge the damage award. They allege the trial
    judge erred in including $5,871 for which there were not receipts, in
    allocating only 17.6% of the expenses to the respondents and in awarding
    $25,000 for Mr. Sabonguis services. We disagree. The trial judges assessment
    of damages is entitled to deference.

[8]

In determining the amount for expenses, the trial judge relied on the
    evidence of Ms. Zidel, hired by the appellants who was tasked with reconciling
    the respondents expense claim. She was able to reconcile $55,913.01 of
    expenses before her departure and the trial judge accepted that a further
    $50,993.62 of expenses were supported by invoices. Although invoices for a
    small amount of expenses may have been missing, there was oral evidence
    supporting the expenses.

[9]

As for the allocation, the appellants argue that it is based on an
    incomplete calendar of diagnostic appointments prepared by Ms. Zidel. Because
    it was based on an incomplete calendar, the appellants argue that, that claim
    should have been dismissed. The appellants however acknowledged that the
    respondents were entitled to some reimbursement. The trial judge was entitled
    to do the best with the evidence he had to arrive at a reasonable allocation.

[10]

We
    would also not interfere with the award of $25,000 for Ms. Sabonguis services.
    The trial judge accepted that services were provided, that the award was in the
    circumstances modest compared to what was claimed.

[11]

For
    these reasons, the appeal is dismissed.

[12]

Costs
    to the respondents fixed at $20,786.59 inclusive of disbursements and
    applicable taxes.


