CITATION: Baptiste v. Obermuller, 2010 ONSC 6274
DIVISIONAL COURT FILE NO.: 319/09
DATE: 20101117
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ROYETTE BAPTISTE
Appellant (Defendant)
– and –
CHERLY OBERMULLER
Respondent (Plaintiff)
In person
In person
HEARD: November 12, 2010
MOLLOY J.:
REASONS FOR DECISION
Introduction
[1] This is an appeal from the decision of Deputy Judge B. Tait dated June 12, 2009, after a trial in the Small Claims Court in Toronto. The case involved a dispute about whether the plaintiff was entitled to be paid for doing alterations on costumes for the 2007 Caribana parade. The plaintiff claimed that she had an oral contract with the defendant to be paid $40 for each of 52 costumes she worked on, for a total of $2080. The defendant maintained that the plaintiff had volunteered her time, along with many other people who helped out with the Caribana costumes, and was not entitled to any payment.
[2] The trial judge awarded the plaintiff $1000 for her work, ruling that $2000 (as claimed) for one day’s work was too high, slightly discounting the number of costumes worked on, and allowing the plaintiff $20 for each of 50 costumes.
[3] In addition to the central issue with respect to the plaintiff’s work on the costumes, there were two side issues: (1) compensation sought by the plaintiff for damage allegedly done by the defendant to the windshield of the plaintiff’s car; and (2) a credit to the defendant for Caribana costumes supplied to the plaintiff and her daughter. The trial judge found the defendant responsible for the damage to the windshield and awarded $100 to the plaintiff on this issue. He also allowed a credit to the defendant of $140 for the costume the plaintiff wore at the parade, but found the plaintiff had paid for her daughter’s costume.
[4] For the reasons that follow, I am of the view that the judgment with respect to the costume alterations cannot stand. There is no basis in law for the result reached. If there was a contract at all, it clearly was not for $20 per item, a price that had never been discussed, even on the plaintiff’s evidence. The trial judge appears to have considered that the plaintiff’s work was worth $1000, but there is a complete absence of evidence that would justify $1000 as a reasonable payment for the services rendered. In the absence of a reasoned basis for the decision on this point, the judgment for $1000 cannot stand.
The Decision of the Trial Judge
[5] At the beginning of the trial, before any evidence was called, the trial judge told the parties (who were both unrepresented) that he would first have to decide whether there was a contract between the parties. He then stated that if he was persuaded on the evidence that there was no contract, he would have to decide what the plaintiff’s work was worth, which may or may not be $40 per costume. Although the defendant stated at the outset that her position was the work was “gratuitous,” the trial judge did not mention in his opening remarks the possibility of simply dismissing the plaintiff’s claim on the basis that there had been no agreement that she would be paid anything.
[6] The evidence proceeded for what appears to have been a full day. Both the plaintiff and the defendant testified, as well as the defendant’s husband and sister. At the end of the evidence, the trial judge delivered brief oral reasons for decision.
[7] At the beginning of his reasons, the trial judge observed that “everybody seems to be singing from the same hymn book, with slight variations at the edges, including matters of dating events.” He said he drew no inferences from his “inner conflicts in that respect.” He then referred to the plaintiff’s evidence that she advised the defendant she would charge “around $40 a unit” for the alterations and that the defendant’s evidence that she “can’t recall” any discussions of a fee. He concluded that “both of them were telling the truth, i.e. that the plaintiff did say it and that the defendant does not remember it.” Later in his reasons, he suggested that the defendant may have had memory problems because she was so busy with Caribana.
[8] On the issue of formation of contract, the trial judge held that “to the extent there was an oral contract, it’s not clear exactly what the terms were and the use of the word ‘around’ further underlines that.” He then said he would try to come to a conclusion as to what the work was worth “as opposed to slavishly clinging to $40.00 per item.”
[9] The plaintiff testified that she had done 47 costumes in one day, working from 9:15 am until 5:00 pm, and a further five costumes on a second day. The trial judge considered that 47 costumes at $40 would result in a payment of nearly $2000 and stated that “nearly $2000.00 for a day of work is pretty darn substantial in the normal world.” He then stated,
And I’m interested that the plaintiff has said that she was prepared to do them for $20.00 a piece. The best thing I can do is say, I’ll take the $20.00. I think it’s a more realistic number. And, I’ll take the 47 units and round it to the nearest five, which would be 45, and that gives us a payment of $900.00, which is a very good day’s wage for a day’s work. And, there would be an addition for the other five, and . . . All things considered, I’m prepared to allow judgment for $1000.00 with respect to the costumes.
[10] With respect to the windshield incident, the trial judge accepted that the plaintiff had to replace the windshield at a cost of $100. He noted that the defendant “did not feel that she had done significant harm,” but said that the windshield had already been moderately damaged and what the defendant did “exaggerated the damage to the point where I believe the plaintiff when she says she received a ticket.”
[11] It is common ground between the parties that the plaintiff had been given Caribana costumes for herself and her daughter. The trial judge held that the plaintiff had paid the $65 charge for her daughter’s costume, stating that he found the plaintiff’s evidence “that she had paid $80.00 and received $15.00 back from the defendant. . . to be completely believable.” With respect to the plaintiff’s own costume, the trial judge stated that “it was agreed” that the defendant should get a $140 credit for that.
Sufficiency of Reasons
[12] It is necessary to recognize the reality of a busy small claims court. It must also be acknowledged that the delivery of a decision in a timely way is an important goal in that court. Nevertheless, the fundamental principles of fairness and natural justice require a reasoned decision. As Binnie J. noted in the landmark Supreme Court of Canada decision in R. v. Sheppard[^1]:
The delivery of reasoned decisions is inherent in the judge’s role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large.
[13] At a minimum, the reasons for a decision must be sufficient for the parties to understand the basis for it and to allow for meaningful appellate review.[^2] Where there are contradictions in the evidence, including where the judge’s decision is based on findings of credibility, the reasons should address the conflict and explain why one version was chosen over the other. Bald assertions and generalizations are not sufficient for this purpose.[^3]
Was there a contract?
[14] The plaintiff testified that prior to the date upon which she did any work, she was shown a sample costume by the defendant and asked “about how much would this cost [to do the alterations]”. The plaintiff said that although she normally charges about $80 to people she doesn’t know, she told the defendant “around $40 or so.” She also testified that she would have been prepared to charge $20, but that she did not tell that to the defendant. The plaintiff further acknowledged that at the point when she started the work, being the day upon which she says she altered 47 costumes, she had not yet had any agreement on price with the defendant.
[15] The only findings by the trial judge as to whether there was a contract was that he accepted this statement about $40 was made by the plaintiff and that “to the extent there was an oral contract, it’s not clear exactly what the terms were.” He made no finding as to whether there had been a “meeting of the minds” between the plaintiff and defendant so as to form a contract. In particular he made no finding that the defendant ever agreed to pay the plaintiff anything.
[16] The trial judge did not refer to the evidence of the defendant’s sister and husband. The defendant’s sister testified that everyone who worked on the costumes volunteered their time and that nobody was ever paid for this work. The defendant’s husband, who was in charge of all the finances for the Caribana project, also testified that there was no agreement to pay the plaintiff anything. The defendant herself testified that it is part of the culture around Caribana that everybody pitches in and helps with the costumes and that nobody is ever paid for this work. This evidence conflicts with the evidence of the plaintiff that it was understood that she was to be paid. The trial judge failed to address or reconcile these conflicts. He also made no reference to the fact that the plaintiff did not keep track of her own work and did not submit a bill for her services. Also, the actions of the plaintiff in having accepted a costume for her own use and not having paid for it, could have been considered as evidence tending to support the defendant’s version of the events, but was not referred to in this context. Further, the trial judge could have considered the improbability of the fee suggested by the plaintiff as a factor going to credibility.
[17] I am not suggesting that it was necessary for the trial judge to consider each and every one of these factors and to set out in his reasons why he accepted or rejected them. However, the failure of the reasons to make any reference at all to these factors makes it difficult for the parties to know the basis for his decision and makes meaningful appellate review impossible.
[18] It seems that the trial judge struggled with the issue of credibility. He stated at page 3 of his reasons, “It’s very hard to determine who should be believed when I have already stated that I don’t think anybody was trying to misstate their recollections.” He resolved that problem by saying he believed both the plaintiff and the defendant. With the greatest of respect, I cannot see how that is possible on the evidence at trial. This is not merely a situation in which one party does not recall the particulars of a conversation. The defendant maintains that all of the costume work was voluntary. It is hard to believe that she could simply forget a commitment to pay one of those workers an estimated price of $2000. While findings of credibility are often difficult, the resolution of disputed issues often requires that they be made, or alternatively, that a finding be made that the plaintiff has failed to discharge her onus of proof.
[19] Further, if the trial judge actually accepted the testimony of both parties, then he should have been driven to the conclusion that there could be no contract as the plaintiff believed she was to be paid and the defendant believed she had volunteered her time. The trial judge ought to have then considered whether, in that situation, there was any obligation on the defendant to pay the plaintiff anything at all.
[20] Having read the reasons for decision of the trial judge, I still cannot determine whether he was of the view that there was a contract to pay the plaintiff, with the price having been left vague, or whether he rejected the evidence of the defendant and her witnesses that nobody was to be paid for working on the costumes and that the plaintiff was no exception. If he did reject that evidence, his basis for doing so is not discernible from his reasons.
What was the work worth?
[21] It would appear from the award made to the plaintiff, that the trial judge was of the view that she was entitled to be paid based on what her work was worth, rather than the price she had quoted. However, the trial judge did not engage in any analysis of what the work was worth. He settled on $20 per item for 50 items without considering whether that was a reasonable price for the services rendered. The only justification offered by the trial judge for the quantum awarded was that it was “a more realistic number” than the $40 fee quoted by the plaintiff and it was mentioned by the plaintiff in her evidence as a fee she would have been prepared to accept.
[22] Even on the evidence of the plaintiff, the $20 per item price was never mentioned to the defendant and there is nothing to suggest it is a reasonable price for the work done. The plaintiff testified that she worked on the first day from about 9:15 am to 5:00 pm. The alterations were minor in nature, even if the plaintiff’s version of the work is accepted, mainly consisting of adjusting straps. The plaintiff said the alterations took between 10 and 20 minutes per costume. The trial judge awarded $900 for that first day’s work, which is approximately $110 per hour. While there was no evidence at trial as to what minor alterations might cost in the general marketplace, surely judicial notice can be taken of the fact that $110 per hour is simply not in the ballpark.
[23] In my view, the trial judge’s reasons fail to provide a justification for the quantum of the judgment, either as a question of fact or a question of law.
Caribana Costumes
[24] The trial judge accepted the evidence of the plaintiff that she had paid for her daughter’s costume. He said he found her evidence that she had paid $80 and received $15 back to be “completely believable.” I think it is fair to infer from that that he found this particular detail to be a compelling indication of truthfulness. While these reasons are sparse I consider them sufficient given the issues involved and I would not interfere with that determination.
[25] With respect to the plaintiff’s own costume, the defendant conceded in her testimony that she was prepared to accept $140 as the value of the costume. Given this concession, I would not interfere with the trial judge’s conclusion that the plaintiff was defendant was entitled to be paid $140 for the costume. However, since it was the defendant’s position that the costume was given to the plaintiff as a thank you for the work she had done, and since there must be a new trial with respect to the central issue of whether the plaintiff’s work was voluntary or for a fee, the plaintiff should not be obliged to make that payment until the central issue has been resolved.
Damage to the windshield
[26] The defendant admitted putting an envelope under the wiperblades on the windshield of the plaintiff’s car in order to serve her with documents. The trial judge made no specific finding that this caused the damage to the windshield that led to the $100 repair bill. However, such a conclusion is a necessary implication from his reasons. Further, he explained that although the defendant did not apply a great deal of force to the wiper blades, the windshield was already moderately damaged and therefore more susceptible to further damage bringing it to the point where it had to be replaced.
[27] In my view, the trial judge’s reasons on this point are sufficiently detailed to understand the basis upon which he made his decision. I would not interfere with his conclusion that the plaintiff should recover $100 from the defendant for the damage to the windshield.
Conclusion and Order
[28] In the result, the decision of the trial judge is set aside and a new trial is ordered on the issue of whether the plaintiff is entitled to any payment for the alteration work she did and, if so, how much she is entitled to be paid.
[29] The parties will be bound by the decision of Tait J. with respect to the damage to the windshield and the credit due to the defendant for the costume worn by the plaintiff. The net result of those two issues will be a credit to the defendant in the amount of $40, which shall be taken into account in the final judgment to be awarded.
[30] Costs of this appeal are fixed at $450.00, payable by the plaintiff to the defendant forthwith.
MOLLOY J.
Released: November 17, 2010
CITATION: Baptiste v. Obermuller, 2010 ONSC 6274
DIVISIONAL COURT FILE NO.: 319/09
DATE: 20101117
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY J.:
BETWEEN:
ROYETTE BAPTISTE
Appellant (Defendant)
– and –
CHERLY OBERMULLER
Respondent (Plaintiff)
REASONS FOR DECISION
MOLLOY J.
Released: November 17, 2010
[^1]: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 55 [^2]: Sheppard, at paras 24-25 and 55 [^3]: Sheppard, at para. 55 and 60; R. v. R.E.M, 2008 SCC 51, [2008] 3 S.C.R. 3; Law Society of Upper Canada v. Neinstein, 1010 ONCA 193, and cases referred to therein.