Dovbush et al. v. Mouzitchka et al., 2016 ONCA 381

• Judge: Hoy, A.C.J.O., Blair and Roberts, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 21, 2016
• Jurisdiction: Ontario
• Citations: 2016 ONCA 381;(2016), 349 O.A.C. 383 (CA)

Dovbush v. Mouzitchka (2016), 349 O.A.C. 383 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. MY.021

Vitaliy Dovbush and Alexander Faltschuk (plaintiffs/appellants) v. Bogdan Mouzitchka, Alexandra Mouzitchka and IMB+Records Inc. (defendants/respondents)

(C59791; 2016 ONCA 381)

Indexed As: Dovbush et al. v. Mouzitchka et al.

Ontario Court of Appeal

Hoy, A.C.J.O., Blair and Roberts, JJ.A.

May 20, 2016.

Summary:

Dovbush and his brother Faltschuk entered into negotiations with Bogdan and Alexandra Mouzitchka regarding the purchase of a certain percentage of IMB+Records Inc. Dovbush made several payments to the Mouzitchkas totalling $600,000. When the relationship fell apart, Dovbush and Faltschuk sued to recover those payments.

The Ontario Superior Court, in a decision with neutral citation 2014 ONSC 6480, held that the payments were a non-refundable down payment on the brothers' investment and dismissed their action. The brothers appealed seeking to set aside that decision, although only Dovbush actively pursued the appeal.

The Ontario Court of Appeal allowed the appeal. It appeared that the trial judge may have mischaracterized the central issue for determination. His reasons did not permit the court to conduct a meaningful appellate review to assess whether that was the case or to understand why he arrived at the findings and conclusions he did, including his credibility findings. The judgment was set aside, and a new trial was ordered.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - See paragraphs 19 to 35.

Practice - Topic 5442

Judgments and orders - Operation and effect of judgments and orders - Persons affected - See paragraph 36.

Practice - Topic 8803

Appeals - General principles - Whether trial judge must give reasons for rejecting evidence or for credibility findings - See paragraphs 28 to 29 and 34.

Practice - Topic 8817

Appeals - General principles - Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment - See paragraphs 19 to 35.

Practice - Topic 9228

Appeals - New trials - Grounds - Reasons for judgment insufficient - See paragraphs 19 to 35.

Counsel:

Sergiy Timokhov, for the appellants;

Stephen M. Werbowyj, for the respondents.

This appeal was heard on April 21, 2016, before Hoy, A.C.J.O., Blair and Roberts, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered the following judgment which was released on May 20, 2016.