Hoy v., 2014 MBCA 62

Citation: Hoy v. 3894364 Manitoba Ltd. et al., Date: 20140613 2014 MBCA 62 Docket: AI 13-30-08058 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN: DR. MURRAY HOY ) ) D. R. Kochan (Plaintiff) Respondent ) for the Appellants ) - and - ) S. F.

Vincent ) for the Respondent3894364 MANITOBA LTD., 4953372 ) MANITOBA LTD. and DAREN LEE ) JORGENSON carrying on business under ) Appeal heard andthe name of FOUR RIVERS MEDICAL ) Decision pronounced:CLINIC and DAREN LEE JORGENSON ) June 13, 2014 ) (Defendants) Appellants ) MAINELLA J.A. (for the Court): [1] After a trial, the corporate appellants were found to have breached a contract by refusing to pay a finder’s fee to therespondent for doctors he recruited to work at the companies’ clinic. Mr.

Jorgenson, the sole officer, director, and shareholder of thecompanies, was also held liable in tort for inducing the breach of contract. Damages, pre-judgment interest as well as costs wereawarded in the sum of $67,837.60. [2] The appellants argue that the judge made palpable and overriding errors in finding that an agreement existed and inignoring inconsistencies in the respondent’s evidence. Mr. Jorgenson says he is not liable because he did not believe a contract existedand he did not pay the respondent in good faith to safeguard the best interests of the companies.

The appellants also argue that an awardof nine years of pre-judgment interest is unjust. [3] This was a handshake agreement not reduced to writing. The judge found the respondent to be a credible and reliablewitness. His evidence was supported by emails from Mr. Jorgenson acknowledging the agreement. In contrast, the judge made strongcredibility findings against Mr. Jorgenson. The judge found Mr. Jorgenson “brushed-off” the respondent and then “conjured up”excuses to pay the finder’s fee. The judge found Mr.

Jorgenson’s refusal to pay the finder’s fee served no legitimate corporate interest;rather, his dominant purpose was “to deprive Dr. Hoy of the benefits of the contract.” [4] This court will not lightly interfere with findings of fact and credibility (Permaform Plastics Ltd. et al. v. London &Midland General Insurance Co. et al. (1996), (MB CA), 110 Man.R. (2d) 260 at paras. 39-47 (C.A.)). A review ofthe judge’s reasons in light of the record confirms he properly understood the evidence as it related to the issues and carefully weighedthe materiality of inconsistencies in reaching his conclusions.

We have not been satisfied that he committed a palpable and overridingerror in arriving at his findings. [5] We also see no reason to interfere with his discretionary decision to award pre-judgment interest. The record is clear

that the nine-year delay in the conclusion of this dispute lies solely at the feet of Mr. Jorgenson. [ 6 ] The appeal is dismissed with costs. J.A. J.A. J.A.