) ) ASHIF CHOWDHURY Plaintiff/Appellant – v. –, 2023 ONSC 4765

CITATION: Chowdhury v. Chowdhury, 2023 ONSC 4765 COURT FILE NO.: 091/23 DATE: 20230818 ONTARIO SUPERIOR COURT OF JUSTICE Divisional Court BETWEEN: ) ) ASHIF CHOWDHURY Plaintiff/Appellant – and – REZAUL CHOWDHURY Defendant/Respondent ) ) ) ) ) ) ) ) Ismail Idowu Salih, for the AppellantAaron Crangle, for the Defendant/Respondent ) ) HEARD: August 15, 2023 REASONS FOR DECISION schabas J. Background [1] This is an appeal from the judgment of Deputy Judge Amy Westland, dated January 16, 2023.

Following a trial in the SmallClaims Court, the Deputy Judge dismissed the plaintiff’s action against his father, the defendant. [2] The plaintiff, Ashif Chowdhury (“Ashif”), claimed that his father, Rezaul Chowdhury (“Rezaul”), was liable to repay hisson’s student loans provided by the Ontario Student Assistance Program (OSAP) when Ashif was enrolled in an engineering degreeprogram at the University of Ontario Institute of Technology (UOIT). [3] The plaintiff’s evidence, in brief, was that he did not wish to enroll in the program but did so at the insistence of his father.He applied for and obtained student loans, some of which were used to pay tuition and the rest helped to pay Ashif’s expenses.

However,Ashif found the course difficult, his grades were poor, and he did not complete the degree. [4] When the loans came due, a dispute emerged over who should pay them back. Ashif’s position was that his father promisedhim “many times” that he would pay the loans if he studied engineering, and that Rezaul was now estopped from reneging on hispromise because Ashif had relied on it to his detriment.

Rezaul’s position was that he promised to repay the loans if Ashif completed theprogram, and that as he had not done so Rezaul is not liable to repay the loan. [5] The trial judge resolved this issue by finding that Ashif’s evidence on the nature of his father’s promise was not credible andthat Ashif had not satisfied the court that Rezaul had promised to repay the loan so long as “he studied” engineering. The trial judge wasalso not satisfied that Ashif relied on such a representation to his detriment in taking out the loan.

The trial judge also rejected any claimfor damages due to injury to Ashif’s feelings or emotional distress. Issues and standard of review [6] The appellant raised a number of issues in his notice of appeal, but they were distilled into two points at the hearing: 1. that the trial judge erred in misapplying the doctrine of promissory estoppel to the facts and evidence; and 2. that the trial judge erred in dismissing the “personal injury” claim for harm to Ashif’s feelings and emotional distress. [7] It is not disputed that the standard of review is governed by the Supreme Court’s decision in Housen v.

Nikolaisen, 2002SCC 33 , [2002] 2 SCR 235. Questions of law are reviewed on a correctness standard, if an appellate judge disagrees with a trialjudge’s finding on the law, it can substitute its own view (Housen, paras. 8 and 9). Findings of fact by a trial judge are, however, entitledto deference; there is a presumption that trial judges are just as able to decide factual questions as appellate judges and, moreover, have

the advantage of having heard the evidence and being more familiar with the case. Thus, an appellate judge should only reverse a trialjudge’s findings of fact if it can be established that the judge made a “palpable and overriding error” (Housen, paras. 10 -15). Questionsof mixed fact and law involve applying a legal standard to a set of facts, and the palpable and overriding error standard also applies.However, the correctness standard applies if the judge erred in his characterization of the law, but only where the error is readilyextricated from the factual findings (Housen, paras. 26-36).

Promissory estoppel [8] Ashif’s counsel submitted that “as the sole focus of the decision below was on the

interpretation and implementation of thelaw on promissory estoppel to the facts before the court, the fundamental issue on this appeal is a question of law, reviewable on acorrectness standard.” However, counsel’s statement articulates a question of mixed fact and law, and at the hearing of the appeal hissubmissions were focused, exclusively, on the trial judge’s findings of fact, which are subject to review on a palpable and overridingerror standard. [9] In her reasons, the trial judge correctly stated the law on promissory estoppel as set out in Scotsburn Co-op. Services v.

W.T.Goodwin Ltd., (SCC), [1985] 1 SCR 54, and applied the facts to the three elements that the plaintiff was required toestablish: “(

a) the content of the alleged representation; (

b) that Ashif relied on the representation when he took out the loan; and (

c) thattaking the loan was to Ashif's detriment.” [10] I find no palpable and overriding error in the trial judge’s conclusions on each of these three issues. [11] First, the trial judge had to resolve the conflicting evidence about what promise was made by the defendant. She consideredrelevant factors in assessing credibility and found that Ashif’s evidence was not credible for several reasons, grounded in the evidence,which she explained in her reasons.

These findings are entitled to deference, and there is no basis to find that the trial judge made apalpable and overriding error in finding that Ashif had not established that “it is more likely than not” that Rezaul had promised to repaythe loan if Ashif merely “studied” engineering but did not complete the degree. [12] Second, the trial judge considered the history of the relationship between Ashif and Rezaul, including Ashif’s lack of trust inhis father which predated the obtaining of the loan and, as the evidence also showed, continued after the loan had been approved andwhile funds were being advanced to Ashif.

The Deputy Judge also referred to and relied on Ashif’s knowledge of his parents’ limitedfinances in concluding that she was “not satisfied that it is more likely than not that a reasonable person in Ashif's position would haverelied on his father's representation when taking out a student loan, nor that Ashif did in fact rely upon his father's representation when hetook out the loan.” Again, this finding was grounded in the evidence, is entitled to deference and there is no basis to conclude the trialjudge made a palpable and overriding error, or even erred at all. [13] Third, the trial judge was not satisfied that Ashif suffered loss or damage as a result of any promise by his father.

Ashif’s ownevidence at the trial was that he saw benefits in studying engineering and obtaining a degree, as this would allow him to get a higherpaying job. Although he did not end up completing the program, Ashif attended university with the support of the loan and the judge’sfinding that Ashif had not demonstrated a loss or detriment is supported by the evidence. Again, there is no basis to conclude that thetrial judge made a palpable and overriding error, or that she erred at all.

The “personal injury” claim [14] The appellant characterized the claim for damages for injury to feelings and emotional distress as a “personal injury” claim.However, it was not pleaded as a separate cause of action, but simply as a head of damages arising from the claim for breach of contract.As there was no breach of contract, no damages follow. [15] In any event, the trial judge made a finding of fact that Ashif led insufficient evidence linking his alleged mental andemotional distress to Rezaul’s refusal to pay.

In making this finding, the trial judge referred to the lack of psychiatric evidence, as well asthe lack of evidence of costs or expenses or other losses Ashif had suffered. The trial judge’s findings on this issue are also findings offact and entitled to deference. Again, her findings are grounded in the evidence, or lack of evidence, and there is no basis to find thejudge erred, let alone made a palpable and overriding error, on this issue either. Conclusion [16] The appeal is dismissed. The respondent is awarded costs in the agreed amount of $2,500. Paul B. Schabas J. Released: August 18, 2023

CITATION : Chowdhury v. Chowdhury, 2023 ONSC 4765 COURT FILE NO.: 091/23 DATE: 20230818 ONTARIO SUPERIOR COURT OF JUSTICE Divisional Court ASHIF CHOWDHURY Plaintiff/Appellant – and – REZAUL CHOWDHURY Defendant/Respondent REASONS FOR DECISION Schabas J. Released: August 18, 2023