COUR D'APPEL

CANADA

PROVINCE DE QUÉBEC

GREFFE DE MONTRÉAL

PAR LA COUR

[1]           At trial, the appellants contested the validity of the fours loans in dispute on various grounds, alleging in particular that, as borrowers, they never received the funds and that the loan agreements had been released from escrow without their consent.

[2]           The judge heard conflicting evidence from representatives of the respondents and the appellants as to the business arrangement between the parties over a five-day trial. He had to decide, in particular, whether the loans were in fact made, given the testimony of Mr. Smiley, the principal witness for the borrowers, who claimed the funds were never received. The contrary position was advanced by a witness for the lenders, Mr. Jack Greenslade, a lawyer representing FSF (UK) Limited, a company that acted as a go-between for the borrowers and the lenders.

[3]           The judge was harsh in his evaluation of Mr. Smiley’s testimony, observing that it was vague on many issues and that it conflicted with the precise character of the testimony offered by that of Mr. Greenslade, whose version of the relevant events, in the judge’s estimation, was corroborated by the lenders’ written exhibits. The judge concluded on this point that the testimony of Mr. Smiley was to be given “no credibility” where it contradicted evidence brought by the lenders.

[4]           The judge found the loans to be valid, that the funds had been paid to the borrowers in spite of their denials and that Mr. Smiley had agreed to the release of the documents from escrow. He dismissed all the arguments brought by the appellants and held them liable, as borrowers and guarantors respectively, for capital and interest on the loan as well as for damages representing extrajudicial fees as stipulated in the agreements.

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[5]           The appellants’ principal argument on appeal is that the funds that the lenders were to remit under the contract of loan were never disbursed to them, so that the loan was invalid under article 2314 C.C.Q. They renew their claim on appeal that the lenders had released the funds to FSF - the go-between - but the money never reached the borrowers.

[6]           They submit that the judge erred in deciding that the funds were properly disbursed and that the agreements had been released from escrow.

[7]           The appellants have shown no reviewable error committed by the trial judge on either of these points.

[8]           It is trite law that an appellate court cannot review the finding of a trial judge on a matter of credibility lightly; that it owes due deference to conclusions of fact arrived at by trial judge who heard the evidence first-hand; and that in the absence of a palpable and overriding error, the judge’s findings of fact should not be disturbed (see, e.g., Regroupement des CHSLD Christ-Roi v. Comité provincial des malades, 2007 QCCA 1068; P.L. v. Benchetrit, 2010 QCCA 1505). The burden here on the appellants is to show a plain error made by the judge and how that error had an overriding effect on the judge's conclusion that the funds were disbursed and that the agreements were not in escrow. It is not enough to point to innocuous mistakes in the interpretation of the evidence, nor is it sufficient to allege that testimony is “incoherent”, “ambiguous” or “contradictory” without an exacting explanation as to how the judge’s conclusions were adversely affected by it.

[9]           In the present case, there was ample evidence, both documentary and by testimony, allowing for the judge to conclude that the funds had been disbursed directly or indirectly to the borrowers and that the agreements were not in escrow.

[10]        All of the subsidiary arguments advanced by the appellants are similarly without merit. They have pointed to no reviewable error committed by the judge.

FOR THE FOREGOING REASONS, THE COURT:

[11]        DISMISSES the appeal, with costs.