QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB Date: 2007 01 03 Docket: Q.B. 50/2006 Judicial Centre: Yorkton BETWEEN: PIERRE TAMBELLINI and WALLY ZENKEWICH Counsel: Ryan O. Malley for the appellant Bernard N. Stephaniuk for the respondent JUDGMENT KRAUS J. January 3, 2007 [1] This is an appeal, pursuant to s. 39 of The Small Claims Act, 1997, S.S. 1998, c. S-50.11, from judgment given January 19, 2006. [2] As ground of appeal, the appellant asserts palpable and overriding error by the learned trial judge in accepting, and finding as fact, part of the testimony of witness (that an amount was owing by the appellant to the respondent) but not accepting the further testimony of the witness that an amount was also owing to the appellant by the respondent. [3] The respondent argues that there was no error of law nor unreasonable finding of fact by the trial judge, and that his conclusions are not so clearly wrong as to make the decision unreasonable. [4] The trial judge found that the appellant admitted owing $1,685.86 to the respondent who accepted that amount as being the correct quantum of his counterclaim; judgment was given to the respondent for that amount. There is no issue taken about that part of the judgment. [5] As to the issue under appeal, in his judgment the trial judge referred to the appellant’s evidence of loaning the respondent $1,900.00 in 2003 for the purpose of funding repairs to the respondent’s car. He also referred to the testimony of Tammy McKay, part-time employee of the appellant, who related conversation she had overheard between the parties in 2004, in the presence of two other people; the trial judge said this: She stated that Pierre asked Wally when he was going to pay him back the $1,900.00 and Wally said “I have bills for you too, why don’t you come into town and we’ll discuss it?” He went on to hold that the statement by the respondent to the appellant in the presence of the witness Tammy McKay “. appears to be to the effect that some amount to be owing .” to the appellant. However, the trial judge then held that he was not satisfied “. as to the particulars of the transaction or the amount”, and dismissed the claim of the appellant. [6] Indeed, it does seem that the trial judge accepted most of the testimony of the witness Tammy McKay, including her evidence as it related to an implied admission by the respondent of some existing indebtedness owing to the appellant. Nor did he expressly reject her testimony as to the amount, $1,900.00. However, there was other testimony, contradictory, before the court on that point: the transcript clearly shows that the respondent unequivocally denied any loan made to him by the appellant. [7] This appeal is not new trial but an appeal on the record: Kitzul v. Ungar (1991), 1991 CanLII 7678 (SK QB), 90 Sask. R. 239 (Sask. Q.B.). The trial judge “. has an immense advantage in assessing evidence and arriving at findings of fact .”, and “. court of appeal must extend very substantial deference to the findings of fact of trial judge”: Board of Education of Long Lake School Division No. 30 v. Schatz (1986), 1986 CanLII 3292 (SK CA), 49 Sask. R. 244 (Sask. C.A.). The standard of appellate review “. is that of palpable and overriding error and its functional equivalents, including ‘clearly wrong’, ‘unreasonable’, and ‘not reasonably supported by the evidence’” H.L. v. Canada (Attorney General), 2005 SCC 25 (CanLII); [2005] S.C.R. 401. [8] In my view, the trial judge preferred the respondent’s denial of the alleged debt to the witness’s testimony on that point. The respondent’s evidence, accepted by the trial judge and unrelated to the witness, was sufficient basis for determining that the onus of proof upon the appellant had not been met. The trial judge was not required to accept the entirety of the witness’s testimony, despite having accepted most of it, particularly in light of the contradictory evidence of the respondent denying the sum claimed by the appellant. Moreover, the denial by the respondent of the appellant’s claim, accepted by the trial judge, was fatal to the appellant’s onus of proving mutual understanding and absolute acknowledgement of the alleged debt between the parties, well established principle of jurisprudence: Larder v. Farquhar (1888), 20 N.S.R. 454 (C.A.); Armitage v. Vivian (1885), 1885 CanLII 177 (MB CA), Man. R. 360 (C.A.); Bloomley v. Grinton (1851), U.C.C.P. 309 (C.A.). That principle of law and case authorities were not before the trial judge nor argued on this appeal. [9] am not persuaded that the judgment is not reasonably supported by the evidence. There is no palpable or overriding error in the judgment. [10] The appeal is dismissed. [11] There is no order as to costs.
This is an appeal pursuant to s. 39 of The Small Claims Act, 1997. The appellant asserts a palpable and overriding error by the learned trial judge in accepting, and finding as fact, part of the testimony of a witness but not accepting the further testimony of the witness that an amount was also owing to the appellant by the respondent. HELD: The appeal is dismissed. The trial judge was not required to accept the entirety of the witness's testimony, despite having accepted most of it, particularly in light of the contradictory evidence of the respondent denying the sum claimed by the appellant. The denial by the respondent of the appellant's claim, accepted by the trial judge, was fatal to the appellant's onus of proving a mutual understanding and absolute acknowledgement of the alleged debt between the parties.