Kuban v. Royal Bank of Canada
Liability as found by the trial judge was upheld; the damages award was reduced because carrying costs were fully offset by notional occupation rent (no evidence to support a lower rent), interest on the five-year loss in value was disallowed, and the pre-judgment interest rate was set at the market average of 6%...
Source-derived case information.
- Citation
- C24727
- Parties
- Respondent: Steve Kuban; Appellant: Royal Bank of Canada; Appellant: George Spence; Appellant: Leigh Lysak
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 24 September 1998
- Procedural Posture
- Collection / Appeal Court of Appeal Decision
- Outcome
- Appeal allowed in part; trial judge's liability finding upheld; damages reduced and interest rate modified; appellant awarded 50% of appeal costs.
- Legal Topics
- Damages, Pre Judgment Interest, Occupation Rent, Liability, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Steve Kuban
Respondent
Royal Bank of Canada
Appellant
George Spence
Appellant
Leigh Lysak
Appellant
Procedural Posture
Collection / Appeal Court of Appeal Decision
Legal Issues
- 1 Whether the trial judge erred in finding liability
- 2 Whether the trial judge erred in the computation of damages
- 3 Whether carrying costs should be offset by notional occupation rent
Ratio Decidendi
Liability as found by the trial judge was upheld; the damages award was reduced because carrying costs were fully offset by notional occupation rent (no evidence to support a lower rent), interest on the five-year loss in value was disallowed, and the pre-judgment interest rate was set at the market average of 6% rather than the 10% applied by the trial judge. The court awarded $113,000 plus 6% pre-judgment interest from January 1, 1996 to trial and 6% on $62,000 from December 1990 to trial, allowed the appeal in part, and granted the appellant 50% of its appeal costs.
Court Disposition
Appeal allowed in part; trial judge's liability finding upheld; damages reduced and interest rate modified; appellant awarded 50% of appeal costs.
Orders
- Respondent awarded $113,000 (loss in value of the house) plus pre-judgment interest at 6% on that amount from January 1, 1996 to date of trial
- Respondent awarded an amount equal to 6% of $62,000 (the notional net proceeds of the loss of sale) from December 1990 to date of trial
Full Case Text
Judgment text and source record
1 paragraphs
Kuban v. Royal Bank of Canada Collection Decisions of the Court of Appeal Date 1998-09-24 Docket numbers C24727 Judges Brooke, John Watson; Laskin, John Ivan; Charron, Louise Vivianne Subject Civil Decision Content Date: 19980924 Docket: C24727 COURT OF APPEAL FOR ONTARIO RE: STEVE KUBAN (Plaintiff (Respondent)) and THE ROYAL BANK OF CANADA, GEORGE SPENCE AND LEIGH LYSAK (Defendants (Appellant)) BEFORE: BROOKE, LASKIN AND CHARRON JJ.A. COUNSEL: Garth D. Walkden for the appellant D.G. Martin for the respondent HEARD: September 18, 1998 ENDORSEMENT [1] We are not persuaded that the trial judge erred in his finding of liability. [2] On the question of damages, although we agree that the respondent is entitled to some compensation, we think that the trial judge's award was too high. In addition to some small mathematical errors that are easily corrected, we are of the view that the trial judge made three errors of substance in his award. [3] First, he permitted the respondent to recover his carrying costs for the period in question with only a partial offset for notional occupation rent. No evidence was led to support a figure for occupation rent. Moreover, the respondent has stayed in the house and enjoyed the benefit of the house without any apparent effort to seek lower priced accommodation. In these circumstances, we think that the occupation rent should be equivalent to the carrying costs and we therefore make no allowance for carrying costs in the award. [4] Second, the trial judge erred in awarding interest over the five-year period on the loss in value of the house. [5] Third, the trial judge erred in awarding an interest rate of 10% when the average rate for the period was only 6%. [6] In the result, in our opinion, the respondent was entitled to damages as follows: (1) $113,000 (the loss in value of the house) plus pre- judgment interest of 6% on that amount from January 1, 1996 to the date of trial; and (2) an amount equal to 6% of $62,000 (the notional net proceeds of the loss of sale) from December 1990 to the date of trial. The appeal is allowed in part in accordance with this endorsement. The appellant is entitled to 50% of its costs of the appeal.