COURT FILE NO.: 615/06

DATE: 20071002

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

VFC, INC.

R. Lachmansingh, for the Plaintiffs/Respondents

Plaintiffs/Respondents

• and -

MARLENE BALCHAND

John Weingust, Q.C., for the Defendant/Appellant

Defendant/Appellant

Heard: October 2, 2007

Archibald J.

1This appeal turns on the jurisdiction of the Small Claims Court to admit hearsay into evidence on the central issue in dispute. In this case, the Plaintiff, finance company, by assignment, has sought payment on a conditional sales contract against the personal defendant for non-payment on a car loan.

2Since 1989, the weight of authority, commencing with Justice Steele’s decision in Central Burner Service Inc. v. Texaco Canada Inc., (1989) 36 O.A.C. 239 (Ont. Div. Ct.), is in favour of the admissibility of hearsay in a Small Claims Court proceeding pursuant to s. 80 (now s. 27) of the Courts of Justice Act, R.S.O. 1990, c. C-43. This decision was quoted favourably by Justice Lane in Sathaseevan v. Suvara Travel Canada Inc., [1998] O.J. No. 1055 (Ont. Div. Ct.).

3Hearsay evidence is also ostensibly permitted under the Rules of the Small Claims Court, O. Reg. 258/98, which are regulations made pursuant to the Courts of Justice Act. Rule 18.02(1) grants a discretion to the trial judge with respect to admitting documents or other evidence: “A document or written statement or an audio or visual record that has been served, at least 30 days before the trial date, on all parties who were served with the notice of trial, shall be received in evidence, unless the trial judge orders otherwise.”

4None of these decisions have dealt with the significance of s. 27(3)(b) of the Courts of Justice Act which reads that, “Nothing is admissible in evidence at a hearing that is inadmissible by any Act.” Section 27(3)(b) would appear to qualify the ambit of s. 27(1), the subsection which allows for the potential introduction of hearsay.

5Section 2 of the Evidence Act, R.S.O. 1990, c. E-23, reads as follows: “This Act applies to all actions and other matters whatsoever respecting which the Legislature has jurisdiction.”

6The issue therefore becomes: What is the relationship between s. 2 of the Evidence Act and s. 27 of the Courts of Justice Act? Is hearsay admissible in a Small Claims Court case absent compliance with the Evidence Act?

Disposition

7Neither the Appellant nor the Respondent addressed this issue in their factums. They have both asked for additional time to amend their factums accordingly. A new date for this appeal shall be set with concurrence of the Registrar of the Divisional Court, once the factums are amended.

Archibald J.