CITATION: Mullins v. Morgan, 2010 ONSC 5722
DIVISIONAL COURT FILE NO.: 28/09
DATE: 20101015
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HERMAN J.
BETWEEN:
MICHAEL MULLINS
Respondent
(Plaintiff)
– and –
HENRY D. MORGAN
Appellant
(Defendant)
-AND -
HENRY D. MORGAN
Respondent
(Plaintiff)
- and –
MICHAEL MULLINS
Appellant
(Defendant)
In Person
Glen M. Perinot. for the Appellant/ Defendant
HEARD at Toronto: October 15, 2010
HERMAN J. (orally)
[1] Mr. Mullins appeals the decision of Deputy Judge Armstrong dated September 17, 2008 in which the Judge found that Mr. Mullins received $7,000.00 from Mr. Downham without proof of his right to sell either the trailer or the Lot and that he did not arrange for Mr. Downham to take possession or otherwise get valuable consideration for the money that he paid. The trial judge dismissed Mr. Mullins’ claim and gave judgment to Mr. Downham for $7,000.00 plus interest.
[2] Mr. Downham assigned his judgment to Mr. Morgan. Mr. Mullins disputed that assignment and brought a motion to set aside the order to continue the proceeding in the name of Mr. Morgan. By decision dated October 13, 2010, Justice Molloy dismissed the motion. The appeal therefore proceeded with Mr. Morgan as the respondent in place of Mr. Downham.
[3] Mr. Morgan made a preliminary objection to the grounds argued by the appellant because they are not reflected in the Notice of Appeal. While some of the grounds are not directly referred to in the Notice of Appeal, one could read them into those grounds if the Notice of Appeal were read generously. In any case, the respondent was not prejudiced because the appellant’s factum reflected the grounds argued in the appeal. Thus, if any leave is required, it is so granted.
[4] Mr. Mullins appeals the trial judge’s decision on three grounds:
(i) The judge erred when he declined to grant an adjournment.
(ii) The judge erred when he declined to admit Mr. Mullins’ version of the contract between the parties, and
(iii) The judge erred in not admitting witness statements.
(i) Failure to Grant an Adjournment to Mr. Mullins
[5] In refusing to grant the request for an adjournment, the trial judge said as follows:
“The bottom line is you are asking for an adjournment. You have no witnesses to verify the reasons why you need an adjournment, such as your injuries. You have not got any kind of a medical report. You have not brought your agent with you to verify the circumstances which you are asking us to consider. And, frankly, I don’t see merit in your request. I’m going to require that the action proceed as requested by the Defendant, so that you may take your seat.”
[6] Mr. Mullins at first had told the trial judge that he had just been busted up and just got out of the hospital. On further questioning he said that it happened about a week ago. Furthermore, Mr. Morgan advised the Court that Mr. Mullins’ agent had advised him a few months prior to the trial date that he would be seeking an adjournment. The judge had the discretion to grant or deny an adjournment request. He was obviously not satisfied with the request for an adjournment was bona fide noting that there was no medical report nor witnesses to verify the reason for the request. This was a conclusion that in the circumstances was not an unreasonable exercise of the judge’s discretion.
(ii) The Judge’s Failure to Consider the Original Agreement and a Prepared Copy of the Agreement
[7] The trial judge refused to consider Mr. Mullins’ version of the original agreement. He declined to do so because it was illegible. Another Deputy Judge had previously ordered Mr. Mullins to prepare a legible copy. This he did not do. Instead, Mr. Mullins prepared a document that reflected his version of the terms, not what the version that he had originally tendered actually said. I note, for example, that Mr. Mullins’ version of the original agreement referred to the purchase of a Lot for $19,000.00, while the copy he prepared referred to the sale of a Lot trailer for $9,500.00. The terms of the original contract that are legible do not reflect the terms of the agreement as alleged by Mr. Mullins, and the prepared copy is not, in fact, a copy of the original. The defendant also had a version of the contract which was not admitted into Court. That version reflected a sale price of $9,000.00.
[8] Counsel for the appellant submits that the Judge should have admitted both versions. However, had he done so, he would have been in the same position as he was without admitting the two versions, that is, he would have had to determine the terms of the contract on the basis of the parties’ evidence and on his assessment of their respective credibility.
[9] In these circumstances, the trial judge did not err in refusing to admit Mr. Mullins’ version of the contract nor Mr. Mullins’ copy of that version which was not, in fact, a copy and relying instead on the testimony of the parties and his assessment of their respective credibility.
(iii) The Trial Judge’s Refusal to Admit Hearsay Evidence
[10] The trial judge refused to consider witness statements that Mr. Mullins wanted to present. The judge asked Mr. Mullins whether there was a reason why the witnesses could not be in Court. Mr. Mullins’ answer was that they were all living up in the park and they would have to come all the way down to Court. Mr. Mullins then said he did not know why the witnesses were not in Court. The judge noted that the statements were not the best evidence and that admission of those statements would have deprived the defendant of an opportunity to cross-examine.
[11] Although hearsay may be admitted in Small Claims Court, there is no requirement that it be admitted. Section 27(1) of the Courts of Justice Act provides that the Small Claims Court may admit such evidence. It therefore falls within the trial judge’s discretion. The trial judge considered Mr. Mullins’ explanation of why the witnesses could not be present, that is, that they would have to travel to trial. He also considered the fact that the admission of the statements would deprive the other party of an opportunity to cross-examine. He then decided, on balance, not to admit the statements. This was a decision that, in my opinion, was within his discretion to make and that discretion was not improperly exercised.
[12] I would add that the plaintiff wanted to introduce the witness statements as evidence of the defendant’s conduct. However, it would appear that the witness statements do not in fact refer to the Lot in question. The Lot in question was Lot 83, while the witness statements refer to Lot 285. The statements do not refer to the defendant by name. One of the statements refers to another individual as the person who was causing problems. Therefore, had the trial judge admitted the statements, they would have been of no value in resolving issues that were before the Judge.
Conclusion
[13] For all of these reasons, I conclude that the trial judge did not err with respect to the three grounds raised by the appellant. The appeal is therefore dismissed.
COSTS
[14] Costs are awarded to Mr. Morgan in the amount of $227.00, inclusive, and are payable forthwith.
HERMAN J.
Date of Reasons for Judgment: October 15, 2010
Date of Release: November 9, 2010
CITATION: Mullins v. Morgan, 2010 ONSC 5722
DIVISIONAL COURT FILE NO.: 28/09
DATE: 20101015
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HERMAN J.
BETWEEN:
MICHAEL MULLINS
Respondent
(Plaintiff)
– and –
HENRY D. MORGAN
Appellant
(Defendant)
-AND -
HENRY D. MORGAN
Respondent
(Plaintiff)
- and –
MICHAEL MULLINS
Appellant
(Defendant)
ORAL REASONS FOR JUDGMENT
HERMAN J.
Date of Reasons for Judgment: October 15, 2010
Date of Release: November 9, 2010