COURT FILE NO.: 2255/97
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
RICHARD JAMES MITCHELL
Bradley Stone, for the Plaintiff/Respondent on Appeal
Plaintiff/Respondent On Appeal
- and -
BRIAN NOAKES, c.o.b. as B & N AUTOMOTIVE
Gordon Good, for the Defendant/Appellant
Defendant/Appellant
HEARD: January 7, 2003
BROWNE J.:
[1] The defendant appeals the decision of the small claims court deputy judge dated November 20, 2001 which decision awarded to the plaintiff $6,000 being at the material time the upper limit of monetary jurisdiction of the Small Claims Court. In addition, the decision awarded costs to the plaintiff of $1,000 in total. The decision makes reference to the payment out of court of $1,500. Such an amount had been paid into court pursuant to the Repair and Storage Act but had been paid out prior to the commencement of these proceedings. The payment out was to the plaintiff who had made the payment into court. It was not necessary that the decisions deal with the $1,500.
[2] The trial took more than a year held over three trial days being March 2, 2000, April 27, 2000 with the conclusion of evidence May 22, 2001. At the end of the trial transcript, the Court requested written submissions. There were discussions regarding time frames for written submissions the particulars of which are not recorded in the transcript. I am advised and accept that counsel for the defendant requested time limits but that in the result there were no specific directions given for time limits for written submissions.
[3] The reasons for decision were delivered November 20, 2001, approximately six months after the conclusion of evidence. The plaintiff’s written submissions were delivered September 25, 2001. For whatever reasons, no submissions were filed on behalf of the defendant.
[4] In a simplistic sense, the appellant’s position is that the deputy judge does not deal, in her decision, with the submissions which the defendant might have made.
[5] The reasons for decision are absent comment upon submissions but the reasons were obviously shaped and tailored by the absence of submissions made on behalf of the defendant. The position of the defendant is dealt with briefly.
[6] The first reason for appeal is that the court was required to receive written submissions and that failure to receive the submissions was a denial of a substantive right. I agree with the principle found in Felker v. Felker, [1946] O.W.N. 368 (C.A.) where the sole ground for allowing an appeal and directing a new trial was that the trial judge gave judgment before giving counsel the right to present argument.
[7] It was a matter of discretion for the trial judge to consider times for written submissions or the order of submission. Absent any specific direction submissions should have been submitted within a reasonable time. In essence, the appellant had six months in which to submit its written position or if the defendant chose simply to respond, there was approximately eight weeks from September 25 to November 20. The total time frame of six months and the lesser time frame of eight weeks are both reasonable times. There is no evidence of any request for a time specific date for the submissions of the defendant’s written position subsequent to September 25, 2001. There has been no denial to the plaintiff of a substantive right to submit written argument. In this case there is no deprivation of the right to submit written argument, there is simply a failure to submit written argument within a reasonable time.
[8] The case involved motor vehicle repairs. The decision describes the plaintiff as a car aficionado. He was the owner of a 1971 Firebird and a 1979 Firebird. His goal was to restore the 1971 Firebird transferring to it the engine and drive train of the 1979 model. In August 1994, the defendant quoted $750 for the required work with payment to be in advance of the work. There was an initial deposit made of $150. Further payments were made over time for a total of $4,950. The last payment made was the amount of $3,000 April 26, 1995. The 1971 vehicle was in the possession of the defendant until June 1996, approximately two years.
[9] In describing the defendant’s position, the trial judge provides as follows:
The defence evidence underlines its proposition that the original oral contract to install the engine from the 1979 vehicle into the 1971 vehicle evolved to become, first, a contract to rebuild the 1971 vehicle’s power train, including its transmission and the engine from the 1979 vehicle, and, finally, an open-ended contract for restoration of the mechanics, and perhaps even the body, of the 1971 Pontiac Firebird.
This contract was, from the Defendant’s point of view, an ongoing arrangement, with work done being dependent upon monies received from the Plaintiff.
[10] From the defendant’s point of view, the trial judge found that even if using an open-ended contract that there was a breach. Accepting for this conclusion the concept of open-ended contract was a position favourable to the defendant.
[11] When the vehicle was returned in June 1996, it was not driveable. Proceedings had been commenced pursuant to the Repair and Storage Liens Act with the $1,500 previously referred to being paid into court by the plaintiff and subsequently paid out of court to the plaintiff. The defendant removed from the vehicle parts valued at $1,200 or $1,500 before the vehicle was released and trailed away. The decision found there had been a total failure of consideration, that the payments made were of no value with there being a total frustration of the contract. As indicated payments made totalled $4,950. After the return of the vehicle in 1996, the plaintiff had paid or was reasonably going to pay $6,000 to $7,000 to restore the vehicle to the desired condition. There was ample evidence to make the award of $6,000.
[12] The decision of the trial judge includes the following:
Based upon the evidence of the defence – especially that of the owner of B & N Automotive, Mr. Brian Noakes – which was so filled with internal inconsistencies that its weight was reduced almost to nil …
[13] The appellant’s position is that there were evidentiary discrepancies not supportive of the conclusion of the decision. In support of that position I was taken through many portions of the evidentiary transcript. As I have indicated, the reasons for decision must be viewed in the reality they were absent the written submissions of the defendant.
[14] The appellant relies upon Cyanamid of Canada Ltd. v. Bigelow Liptak of Canada Ltd., [1992] O.J. No. 2691 (Ont. C.A.) and the cases referred to therein for the concept that a reviewing court must determine from the record and the reasons for decision that the reasons deal with relevant evidence and appreciation thereof and/or whether such evidence is disregarded. These concepts are to be considered before there is intervention.
[15] Section 25 of the Courts of Justice Act provides:
The small claims court shall hear and determine in a summary way all questions of law and fact. It may make such order as is considered just and agreeable to good conscience.
[16] I am referred also to Carrier v. Cameron (1985), 6 C.P.C. (2d) 208 where Chief Justice Callaghan was sitting as a single divisional court judge on appeal from the provincial court (civil division). The judgment provides on p. 209:
On an appeal such as this, a new trial should not be directed unless some substantial wrong or miscarriage of justice has occurred.
[17] That was a case where the trial judge had not called upon counsel for argument and although acknowledged to be an error within the Felker decision, was not, in the circumstances of the particular case, a substantial wrong or miscarriage. In Carrier certain evidence had been ruled inadmissible and Chief Justice Callaghan concluded that that could not be cured by argument.
[18] There is evidence supporting the factual conclusions made by the trial judge. The terseness of the trial judge’s decision is understandable absent the receipt of written submissions from the defendant. I find there to be no substantial wrong or miscarriage of justice in this case.
[19] Various submissions were made with reference to costs of the trial. Section 29 of the Courts of Justice Act gives limits on costs of 15% of the amount claimed with a discretion in the court if it considers it necessary to penalize a party for unreasonable behaviour in the proceeding. My interpretation of the $1,000 in total award of costs is that there is a component of counsel fee and disbursements. The amount awarded plus disbursements would be well within the 15% of Rule 29.
[20] In my view, the better decision for the trial judge would have been the invitation for written submissions on costs as part of the decision. The award of costs was made absent any submissions dealing with costs, other than the written submission of the plaintiff requesting costs. The parties before me seem to agree that it would be technically appropriate to remit to the trial judge the issue of costs either by written or other submissions. Both counsel were in agreement that it would be preferable that I deal with costs at trial. In the result, I adopt the results of the decision that costs be in favour of the successful plaintiff fixed at $1,000 in total.
[21] The appeal is dismissed.
[22] Written submissions dealing with costs of the appeal may be submitted in writing within 30 days.
“Justice E. R. Browne”
Justice E. R. Browne
Released: January 09, 2003