2014 ONSC 3693, 2014 ONSC 3693

CITATION : Winick v. Memedovski, 2014 ONSC 3693 COURT FILE NO.: 7179/13 DATE: 2017/06/18 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) Donna Winick and Howard Winick ) ) ) Howard Winick in person ) Plaintiffs (Appellants) )) ) - and - ) ) ) Bajram Memedovski ) ) ) In person ) Defendant (Respondent) ) ) ) ) HEARD: May 20, 2014 The Honourable Justice C. A. Tucker DECISION ON APPEAL [ 1 ] The appellant seeks to overturn the decision of Deputy Judge Marshall dated April 23, 2013 on a number of grounds. The trial in this matter was held on April 19, 2013.

Pursuant to the deputy judge’s ruling the action was dismissed. [ 2 ] The sole issue on the trial was the quantum of damages the plaintiff would be entitled to as a result of the defendant’s breach of contract. It is clear that although Howard Winick spoke to the matter at trial, and testified and argued the appeal, he has no standing as a party to the action. He said he acted as his wife’s agent in negotiating the agreement of purchase and sale but she was the only one with a financial interest in the property. As such, the deputy judge is correct in finding Donna Winick was the only proper plaintiff. Mr.

Winick was a witness only. On the appeal, the respondent filed no materials and made a limited number of submissions. [ 3 ] The appeal, as noted, was argued by Mr. Winick on consent of the respondent and the court. Ms. Winick was reportedly in the hospital.

[ 4 ] It is the position of the appellants that Deputy Judge Marshall made “palpable and overriding errors” in his decision on a number of issues, many of which centred in credibility notwithstanding that the deputy judge’s decision centred in contractual

interpretation. [ 5 ] The appeal was heard in less than one hour. As noted, the respondent provided no effective response to the appeal. [ 6 ] The case centred in an agreement of purchase and sale whereby the plaintiff Donna Winick agreed to sell a property to the defendant. The defendant, having lost his job, backed out of the agreement and the plaintiff Donna Winick sought damages beyond the forfeiture of the $500 deposit the defendant paid. The plaintiff sought all of its costs in maintaining the property from the time of the aborted sale until just before the appeal was heard when Ms.

Winick had been able to rent the property. [ 7 ] I would note that the plaintiff in its appeal provided in detail the opinion of the pretrial judge which is, of course, not appropriate. [ 8 ] As noted, the plaintiff claimed that the deputy judge made palpable and overriding errors in: (

a) interpretation of the contract, specifically

Schedule “C” while not considering the whole of the Agreement of Purchase and Sale; (

b) not considering the defence filed by the respondent; (

c) not considering the totality of the transaction; (

d) failing to properly consider an affidavit filed by the plaintiff from their real estate lawyer, Mr. Cohn; (

e) finding the costs damages would be difficult to assess in the face of the information the plaintiff supplied on the trial as to the quantum of damages claimed. [ 9 ] I find that the deputy judge did not make any error that would result in his decision being overturned. [ 10 ] The deputy judge properly recognized that the case centred in damages and the

interpretation of the agreement, and in particular

Schedule “C” which dealt with the deposit.

Schedule “C” clearly provides, as the deputy judge found, “the Buyer forfeits the deposit”. The judge also correctly pointed out that the next two sentences of the contract

schedule do not make intrinsic sense with one sentence speaking of damages and the next providing that “if any further deposits are made after January 26, 2011, they are subject to return to the Buyer if he chooses not to complete this Agreement”. In other words, the liability of the plaintiff for failing to close the transaction would be in effect limited to the $500 deposit. The deputy judge points out that the document was drafted by the vendor’s lawyer. [ 11 ]

Schedule “C” related specifically to the deposit. Accordingly, the deputy judge was correct in not considering “the totality” of the agreement. The opinion expressed in an affidavit is irrelevant to the decision the judge is required to make and, as noted, what occurred in settlement conferences are not proper evidence on a trial or an appeal.

Since the trial judge concluded that the damages were limited to the $500 deposit, his comments concerning assessing damages were purely obiter to his decision and does not, I find, constitute any error of law. [ 12 ] Accordingly, the appeal is dismissed. ___________________________ Tucker J. Released: June 18, 2014 CITATION : Winick v. Memedovski, 2014 ONSC 3693 COURT FILE NO.: 7179/13 DATE: 2017/06/18

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Donna Winick and Howard Winick Plaintiffs (Appellants) - and – Bajram Memedovski Defendant (Respondent) DECISION ON APPEAL Tucker J. Released: June 18, 2014