COURT FILE NO.: 03-1185

DATE: 2006/11/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BROCKVILLE DIVISIONAL COURT

B E T W E E N:

DR. KENNETH DALE WALFORD

Dr. Kenneth Dale Walford, self-represented

Appellant/Plaintiff

• and -

STONE & WEBSTER CANADA LP

Katharine L. Byrick, for the Respondent

Respondent/Defendant

HEARD: In Brockville, Friday October 27, 2006

POWER J.

REASONS FOR DECISION

The Appeal

1The Plaintiff/Appellant appeals to this Court from the judgment of Deputy Small Claims Court judge E.M. Osborne dated September 17, 2003 wherein she dismissed the claim of Dr. Walford for damages arising out of his alleged wrongful dismissal. The Plaintiff/Appellant subsequently amended his notice of appeal to include an appeal from Deputy Judge Osborne’s November 21st, 2003 Decision on Costs in which she awarded costs in favour of the Defendant/Respondent fixed at $1,500.00 plus disbursements of $1,299.33 and G.S.T. of $89.20 for a total award of costs of $2888.53.

2It is difficult to set out with precision the various grounds of appeal. The following is my best attempt to do so:

(a) Alleged misconduct on the part of legal counsel for the Defendant/Respondent (I do not intend to go into any detail with respect to this ground of appeal. Suffice it to say that the allegations are nothing short of scandalous. There is no merit to any of these allegations);

(b) Judicial misconduct (It would be inappropriate for me to repeat some of the statements made by Dr. Walford in his notice of appeal and factum. Again, suffice it to say, the allegations of wrongdoing against the trial judge are also scandalous);

(c) The judgment is not “just and agreeable to good conscience”;

(d) There is no evidence that the trial judge “read or considered these submissions and rebuttal argument with authorities submitted by the Plaintiff”;

(e) Failure of the trial judge to properly and fairly consider all the evidence;

(f) Failure of the trial judge to allow the Plaintiff’s claim for overtime pay;

(g) Failure of the trial judge to consider the “fiduciary duty of care” owed to the Plaintiff by the Defendant;

(h) Failure of the trial judge to properly consider the evidence concerning the alleged bad faith of the employer;

(i) Failure of the trial judge to consider the evidence concerning violent attacks on the Plaintiff/Appellant and the violent behaviour of officers or other employees of the Defendant/Respondent;

(j) Failure of the trial judge to interpret the ambiguous employment contract in favour of Dr. Walford; and

(k) The trial judge ordered costs in excess of the alleged maximum allowable award.

The Main Appeal

3As noted above, the Appellant’s claim in this proceeding is for damages for alleged “wrongful and unjust dismissal” and the employer’s failure to pay for overtime work. Dr. Walford’s claim is founded on a written contract of employment. Unfortunately, Dr. Walford, at trial and on appeal, has failed to appreciate that the merit of his claims must be determined according to that contract. Much of his argument at trial, and on appeal, was irrelevant.

4The Appellant, also in my view, fails to appreciate that the proceeding before me was/is one by way of appeal and was/is not an opportunity for him to have his case retried.

5Despite his lengthy submissions and voluminous documentation, the Appellant has failed to demonstrate that the decision of the trial judge was wrong or, indeed, clearly wrong, with respect to her findings of fact or mixed fact and law. In addition, the Appellant has failed to persuade me that the trial judge made any reviewable errors of law either in her conduct of the trial or in her Reasons for Judgment.

6In my opinion, Deputy Judge Osborne’s handling of the trial demonstrates a significant effort on her part to accommodate a self-represented litigant who had difficulty staying on point – i.e. his tendency to embark upon irrelevant issues. Dr. Walford’s submission that there was inappropriate judicial interference in the trial is completely baseless. Quite clearly, Dr. Walford received a fair trial. The suggestion by him that the judge failed to read the two hundred legal precedents submitted by him was, in some fashion, deficient, is, quite simply, frivolous. Indeed, Dr. Walford argued that courts are biased against unrepresented people. He laid no foundation whatsoever for such a proposition.

7I am of the opinion that the trial judge’s decision was a correct one.

8In its defence to the wrongful dismissal claim, the Defendant/Respondent relied on the terms of the written contract. The first issue arises out of the contractual right to terminate the contract. Section 9 reads as follows:

“Upon initial employment with the Company, the Employee is on probation for a period of three (3) months and the Company may terminate this Agreement at any time during that period without any need to give any notice or payment in lieu of notice.” …

9Dr. Walford, as his title would suggest, possesses a PhD. He advised me at the hearing of the appeal that he understood the contract when he executed it.

10On appeal, apparently for the first time, the Appellant argued that this clause is inapplicable because his employment was terminated on April 3rd, 2001 after the three-month period expired. Mr. Walford argues that his employment commenced to run in December 2000 when he met with executives of the employer to conclude an agreement in principle. This argument ignores the fact that his employment did not actually commence until January 8th, 2001 i.e. his first day of work was January 8th, 2001. He also ignores paragraph 14 of the contract which provides as follows:

“Paragraph 14 – effective date of employment: January 8th, 2001”

11The trial judge was correct in finding that the Appellant was a probationary employee subject to termination without notice or cause (see Markey v. Port Weller Dry Docks Ltd. (1974), 4 O.R. (2d) 12 (Co. Ct.) and MacDonald v. ADGA Systems International Ltd., [1999] O.J. No. 146 (C.A.)).

12Deputy Judge Osborne’s dismissal of the claim for overtime pay is in accordance with the terms of paragraph 4 of the aforesaid contract which says:

“Payment for overtime will be in accordance with the Company procedures.”

Her finding that there was no credible evidence to support Dr. Walford’s claim for overtime is justified by the facts including the applicable company procedures.

13There is no evidence whatsoever to support the allegation by the Appellant that the employer was in breach of a fiduciary duty owed to the Appellant.

14There is no basis upon which this appeal court should interfere with the judge’s finding that the Appellant failed to substantiate his allegations of bad faith against the employer, assuming that bad faith was a relevant issue in the first place (see Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, S.C.J. No. 94 (S.C.C.).

15I agree with Deputy Judge Osborne’s finding that Dr. Walford’s allegations of violence in the workplace were not only irrelevant, but were not substantiated by the evidence.

16Dr. Walford, in his appeal, relied on alleged violations of the Charter of Rights and Freedoms. This is not a Charter case.

17For these reasons the main appeal is dismissed.

The Costs Award of Deputy Judge Osborne

18The Defendant/Respondent submits that, notwithstanding Dr. Walford’s right to appeal, without leave, the trial judge’s September 17th, 2003 decision dismissing his action, leave is required for the appeal of the November 21st, 2003 costs award. At the opening of the appeal I advised the parties that I would reserve my decision with respect to the argument that leave was required to appeal the costs decision and, if required, whether it should be granted. I instructed the parties to make their submissions with respect to these issues.

19The starting point in the analysis of this issue is s. 31 of the Courts of Justice Act R.S.O. 1990 c. C.43. Section 31 reads as follows:

Appeals

31. An appeal lies to the Divisional Court from a final order of the Small Claims Court in an action,

(a) for the payment of money in excess of $500, excluding costs; or

(b) for the recovery of possession of personal property exceeding $500 in value.

20In his statement of claim, Dr. Walford claims damages in excess of $10,000.00. Therefore, he has an appeal as of right with respect to the dismissal of his action by the trial judge. Section 31, as will be noted, says nothing about an appeal from a costs award.

21Section 133 of the Courts of Justice Act states:

Leave to Appeal required

133. No appeal lies without leave of the court to which the appeal is to be taken,

(a) from an order made with the consent of the parties; or

(b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs.

22The parties do not disagree that Deputy Judge Osborne possessed a discretion with respect to costs. Dr. Walford argues that his appeal is not one that “is only as to costs” and, therefore, no leave is required. He submits that his appeal of the costs award is part of his larger appeal.

23Counsel for the Respondent relies on Rule 61.03(7) of the Rules of Civil Procedure which provides as follows:

MOTION FOR LEAVE TO APPEAL TO DIVISIONAL COURT

Costs Appeal Joined with Appeal as of Right

Where a party seeks to join an appeal under clause 133 (b) of the Courts of Justice Act with an appeal as of right,

(a) The request for leave to appeal shall be included in the notice of appeal or in a supplementary notice of appeal as part of the relief sought;

(b) Leave to appeal shall be sought from the panel of the Divisional Court hearing the appeal as of right; and

(c) Where leave is granted, the panel may then hear the appeal

24Here, Dr. Walford seeks to join his two appeals. The Defendant argues that he wishes to join his appeal of the final order dismissing his action with an appeal “only as to costs”. Therefore, the Defendant/Respondent argues that, in the circumstances, Dr. Walford must seek leave to appeal. Dr. Walford did not make a formal application for leave although he did request leave at the opening of his submissions on appeal in the event it was required.

25In my opinion, Rule 61.03(7) is applicable to this matter and, therefore, leave to appeal the costs award should have been included in the notice of appeal or in a supplementary notice of appeal. However, notwithstanding the requirement for a formal request for leave to appeal, I grant Dr. Walford relief from his failure to seek leave. I do so primarily because the requirement for a leave application is not as clear as it should be. This, then, leaves me with a duty to decide whether leave should be granted. In these circumstances I am faced with the task of determining what should be the appropriate criteria in determining whether leave should be granted or refused.

26Counsel for the Respondent submits that I should be guided by the provisions of Rule 62.02(4) which provides as follows:

(4) Grounds on which leave may be granted – Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

27The problem with counsel’s argument, as I see it, is that Rule 62.02 deals with motions for leave to appeal from interlocutory orders of a judge pursuant to s. 19(1) of the Courts of Justice Act which authorizes appeals to the Divisional Court from an interlocutory order of a judge of a Superior Court of Justice with leave as provided in the Rules of court. In my opinion the issue as to whether leave to appeal should be granted under s. 133 (b) of the Courts of Justice Act from an order of the Small Claims Court judge is not subject to Rule 62.02. I am also of the opinion that, notwithstanding that the tests set out in Rule 62.02(4) are not binding on me in this matter, I can, however, consider the criteria set out therein in exercising my discretion. However, I am not bound by that criteria.

28I am of the opinion that leave should not be lightly granted. However, in the peculiar circumstances of this case, I have decided to grant leave to appeal.

29S. 29 of the Courts of Justice Act deals with costs awards made in the Small Claims Court. It provides as follows:

Limit on Costs

29. An award of costs in the Small Claims Court, other than disbursements, shall not exceed 15 per cent of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interests of justice to penalize a party, counsel or agent for unreasonable behaviour in the proceeding.

30In other words, apart from an award designed to penalize a party, this section provides that costs are limited to, exclusive of disbursements, an amount not exceeding 15 per cent of the amount claimed in the action. Here, the award of $1500.00 is within the prescribed limit. However, Dr. Walford relies on what he says is Rule 19.04 of the Small Claims Court Rules which says:

19.04 Counsel Fee – if the amount claimed by a successful party exceeds $500.00, exclusive of interests and costs, and the party is represented by a lawyer or student-at-law, the court may allow the party as a counsel fee at trial,

(a) in the case of a lawyer, an amount not exceeding $300.00;

(b) in the case of a student-at-law, an amount not exceeding $150.00;

31Obviously, this rule and S. 29 of the Courts of Justice Act, are contradictory.

32The problem with Dr. Walford’s argument is that the Rule quoted above has been replaced with a new rule as follows:

REPRESENTATION FEE

19.04 (1) If the amount claimed in an action exceeds $500, exclusive of interest and costs, and the successful party is represented by a lawyer, student-at-law or agent, the court may award the party a reasonable representation fee at trial or at an assessment hearing.

(2) In the case of a student-at-law or an agent, the representation fee shall not exceed half of the maximum costs that may be awarded under section 29 of the Courts of Justice Act.

33Therefore, there is no conflict at this time between Rule 19(4) and S. 29 of the Courts of Justice Act.

34Even if the Rule amendment does not have retroactive effect, I would find that the statute takes priority over the old rule. In any event, S. 29 speaks of costs other than disbursements whereas the old Rule 19.04 speaks of counsel fees. They are different things. In addition, rule 19.02 now provides that “any power under this rule to award costs is subject to S. 29 of the Courts of Justice Act.”

35I conclude, therefore, that an award of costs not exceeding 15 per cent of the amount claimed is not, in and of itself, an illegal award. The only issue to be considered on this appeal is whether, in all the circumstances, the award was an appropriate one.

36There is nothing in the record before me that would remotely suggest that the trial judge exercised her discretion on wrong principles. The trial was a two-day one with extensive documentation and was followed by written submissions. The employer/Defendant was completely successful. Therefore, there is no basis upon which I should substitute my discretion for the discretion of the trial judge with respect to her award of costs in the amount of $1,500.00. Therefore, the appeal with respect to the costs award is also dismissed.

Costs of the appeal:

37In the event that within thirty days following the release of these Reasons for Decision the parties have been unable to conclude an agreement regarding the costs of the appeal, they may make brief written submissions to me. The Respondent shall deliver its written submissions, at the latest, within ten days of the expiration of the thirty days following the release of these Reasons following which the Appellant shall have fourteen days within which to file his submissions. The Respondent shall have a further ten days within which to submit reply submissions, if any.