DIVISIONAL COURT FILE NO.: 144/09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
AMINA SHAH
Plaintiff
(Respondent in Appeal)
– and –
NALINI PARBUDIAL
Defendant
(Appellant in Appeal)
David Peter Brannan, for the Plaintiff (Respondent in Appeal)
R. P. Zigler, for the Defendant (Appellant in Appeal)
HEARD in Toronto: April 7, 2010
LEDERMAN J. (orally)
Background
1This is an appeal by the appellant/defendant from the judgment of Deputy Judge Bocci in the Small Claims Court, wherein she awarded the respondent/plaintiff $5,411.00, plus costs.
2At trial, the parties gave different accounts of what happened between them and credibility was very much in issue.
3The respondent testified that she saw an advertisement placed by the appellant, a spiritualist and medium, in a local Caribbean newspaper advertising that, among other things, she specialized in reuniting services. At the time, the respondent was twenty-three, living with her mother, pregnant and had just broken up with her boyfriend. She was distraught and desperate to become reunited with him.
4The respondent arranged an appointment with the appellant at her home on June 7, 2002. The respondent testified that the appellant requested a consultant fee of $80.00 which the respondent withdrew from her bank account to pay the appellant.
5The respondent testified that further requests for money were made by the appellant. First, the appellant indicated that she needed another $5,000.00 in order to be of assistance. The respondent testified that she withdrew that amount from her bank account on June 10 and paid it to the appellant.
6The respondent testified that on June 11, the appellant said she needed funds for the purchase of beer as the spirits with whom she was communicating required alcohol and that she also needed another $300.00 to help the situation along.
7The respondent testified that she complied with those requests.
8The respondent testified that in total she withdrew from her bank account and paid to the appellant $5,411.00, all for the purpose of the appellant providing the services that would effect a reunion with her ex-boyfriend.
9The respondent testified that the appellant gave her an oral guarantee that her services would work and a reconciliation would be the result.
10The respondent testified that after making the advance payments to the appellant she was unable to communicate with her and heard nothing from her and in fact that the appellant provided no services to her at all.
11On the other hand the appellant denied the account given by the respondent. The appellant testified that she had met the respondent on only one occasion at her home and provided a reading to her for which she charged $30.00.
12The appellant testified that she only charges amounts up to $150.00 for her services and never sums as large as the respondent says she paid.
13Further, the appellant testified that on the occasion she provided the $30.00 reading, the respondent was in the company of another client, Pauline Beharry, who had come to see her for a consultation.
14At trial, the appellant testified that Ms. Beharry had a motive to harm the appellant. That was so because Ms. Beharry was having an affair with a married man and Ms. Beharry believed that the appellant had told his wife about it. The appellant alleged that as a result, Pauline Beharry and the respondent conspired together to exact revenge from the appellant. That resulted in the respondent making this fabricated claim against her years after the event and Ms. Beharry instigating a criminal complaint for fraud against her.
15After hearing the two versions, the Deputy Judge found the respondent to be credible and that she had proved her claim on a balance of probabilities.
Analysis
16On appeal, the appellant raises three grounds. First, in the absence of a finding that the appellant had guaranteed a reuniting, there could be no basis for a finding of breach of contract. Secondly, the Deputy Judge erred in admitting so called similar fact evidence relating to the criminal complaint made by Ms. Beharry which was based on hearsay and devoid of any probative value. Thirdly, the Deputy Judge’s reasons were seriously deficient in explaining why judgment should be granted against the appellant.
17As to the first ground, although the respondent testified that the appellant had guaranteed a reunion, the gravamen of the problem was that the appellant provided no services whatsoever to the respondent, notwithstanding that the respondent had paid the full amount requested in advance.
18The appellant pleaded in her Statement of Defence that she was not working to help reunite the respondent with her ex-boyfriend, but rather just providing a $30.00 reading. The appellant did not plead that she provided reunion services but gave no guarantee of the result.
19By finding that the respondent was credible, the Deputy Judge thereby accepted the respondent’s version of events. In so doing, the Deputy Judge implicitly and reasonably found a breach of contract that the respondent did not get what she bargained and paid for, i.e. reunion services. Whether there was or was not a guarantee that the appellant’s services would work was beside the point, as no services were provided at all.
20As for the so-called similar fact evidence, the Deputy Judge obviously placed no weight on it. It is not even mentioned in her reasons and played no consideration in her decision. No prejudice resulted in this evidence having been admitted.
21As for the reasons given by the Deputy Judge, she made a clear finding of credibility in favour of the respondent. In support, the Deputy Judge pointed to the evidence of the timely withdrawal entries in the respondent’s bank statement. Moreover, given the respondent’s plight in losing her boyfriend and being pregnant, the respondent was attracted by the appellant’s advertisement indicating that she specialized in reuniting services and that no problem was too big or small for her to handle. The evidence of the advertisement and the circumstances of the respondent are consistent with the respondent contracting with the appellant for reuniting services.
22Further, the appellant could produce no records to substantiate her version that she provided a $30.00 reading to the respondent and issued a receipt for it.
23The appellant explained that she routinely destroys records after five years but this issue with the respondent arose within that time frame.
24Central to the appellant’s version of events was her position that Pauline Beharry was a friend of the respondent and that she knew of the limited nature of the reading service provided to the respondent and that the two of them conspired to exact revenge on the appellant. Yet, the appellant’s counsel at trial never confronted the respondent in cross-examination about this allegation and did not subpoena Pauline Beharry to testify at trial.
25Nor did the appellant call her own husband as a witness at trial to deny the respondent’s allegation that he drove with the respondent to the beer store at Markham and Lawrence to purchase two cases of beer.
26In preferring the credibility of the respondent over the appellant, the Deputy Judge did not have to sort out conflicting evidence proffered by the appellant. There was only the appellant’s say-so without any supporting evidence of any kind. In the end, there was ample evidence in the record to support the Deputy Judge’s finding of credibility in favour of the respondent and the Deputy Judge’s reasons are sufficient in this regard.
27Having made the finding of credibility, it follows that there was a breach of contract in that the respondent was not provided with services of any kind and she is entitled to her money back. The Deputy Judge’s reasons satisfactorily explain this result.
28The Deputy Judge made no palpable and overriding error in her findings or conclusions and, as indicated, her findings are supported by the evidence.
29The appeal is therefore dismissed.
COSTS
Costs
30For oral reasons delivered the appeal is dismissed. The respondent will have her costs fixed at $1,500.00, all inclusive.
LEDERMAN J.
Date of Reasons for Judgment: April 7, 2010
Date of Release: April 14, 2010
CITATION: Shah v. Parbudial, 2010 ONSC 2037
DIVISIONAL COURT FILE NO.: 144/09
DATE: 20100407
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
AMINA SHAH
Plaintiff
(Respondent in Appeal)
– and –
NALINI PARBUDIAL
Defendant
(Appellant in Appeal)
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: April 7, 2010
Date of Release: April 14, 2010