CITATION: Anand v. Sunfresh Organics, 2011 ONSC 776
DIVISIONAL COURT FILE NO.: DC-10-056-00
DATE: 20110207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
[on appeal from an order of the Small Claims Court
Deputy Justice S. Boguski, dated May 11, 2010; File No. SC-08-70235-00]
Justice Thomas A. Bielby
BETWEEN:
Yudesh (Andrew) Anand
Respondent/Plaintiff
– and –
Sunfresh Organics; Lee Le Chat
Appellant/Defendants
R. Kesarwani, for the respondents
R. H. Regan, for the appellant
HEARD: May 11, 2010
[1] This is an appeal by the defendant of the decision of Deputy Judge S. Boguski of the Small Claims Court in Brampton, dated May 11, 2010.
[2] In that judgment, the Court awarded the plaintiff $7,500.00 for breach of contract together with interest and costs.
[3] The appellant put forward a number of grounds of appeal requesting that I overturn the judgment and dismiss the claim or alternatively, grant the appeal and order a new trial. I will deal with the grounds in the order in which they were argued.
The learned judge erred in not allowing the defendant’s request for an adjournment at the opening of trial.
[4] The appellant argues that pursuant to the Small Claims Court rules, that the learned trial judge ought to have granted the adjournment request and that any prejudice to the respondent could be compensated by a cost order.
[5] The agent for the defendant had just been retained a couple of days before the trial and was not yet ready to proceed to trial. The learned judge did not allow the adjournment stating that the matter has been “kicking around way too long” and that the Court had set a whole day aside and he was not about to adjourn the matter because the agent had been retained at the eleventh hour.
[6] What is not set out in the transcript, but would have been known by the trial judge, is the fact that the trial had been adjourned on three previous occasions. The trial date of April 30, 2010 had been set the previous December.
[7] I am not persuaded that in denying the adjournment, the judge made any real and palatable error. It is well within the Court’s jurisdiction to govern its own process and given the facts, the trial judge’s decision was reasonable.
[8] Further, as it turns out, and for reasons discussed later, the trial was adjourned at the completion of the plaintiff’s evidence, and a new date set, to continue the trial.
The learned judge erred in allowing the plaintiff to reference a document which had not been disclosed to the defendant in accordance with the Rules of Civil Procedure.
[9] The document in question was a newspaper advertisement placed by the defendant and by the use of which the plaintiff made contact with the defendant. The plaintiff states that the document was in fact delivered to the defendants some time ago. However, even if that was not the case, the reference to it does not reflect an error in judgment or law by the learned trial judge. The importance of the document was simply to provide context as to how the business relationship commenced. It certainly had no bearing on the outcome of the trial. Further, the document was initially created by the appellant and was as much in his control as it was the respondents.
The learned trial judge erred in being so intrusive into the trial proceedings that the trail could no longer be considered a fair trial.
[10] I am also cognizant of the case law which supports the principle that if a judge intervenes too much he ceases his role as a judge and becomes an advocate. In reviewing the transcript as a whole, it would seem the Court was at times impatient, particularly on the second day of trial (May 11, 2010). Most of the examples of impatience, as pointed out by the appellant, were during the testimony of the respondent. However, having reviewed the passages, I find there is no basis or prejudice to the level necessary to support an appeal.
The judge allowed as evidence a letter in which an offer of settlement was made and which ought not to have been evidence as it was privileged.
[11] The letter in issue was dated February 5, 2008 and was five pages long and single spaced. It was authored by Lee Le Chat and sent to the plaintiff. It included a great deal of relevant information but on the last page in the middle of a rather long paragraph containing a one sentenced offer to settle by the defendant for $5,000.00.
[12] The letter could have been entered as evidence with the offer redacted. The rest of the letter was clearly admissible. It is hard to determine what influence the offer had on the trial judge. He did mention it, in fact, and quite improperly he told the plaintiff that he should have taken it as he understood it the company was not operating.
[13] In my opinion, however, this is not a ground for an appeal. There was a great deal of other evidence upon which the trial judge could rely on to reach his decision. I do not feel the admission of this letter is a real and palpable error.
The learned trial judge was in ill health
[14] On at least two occasions the judge expressed the fact that he was not feeling well and on one occasion followed it up by saying he was having trouble following the evidence. Originally this matter was scheduled for a full day, but primarily because of his health, the trial judge adjourned the trial after the completion of the plaintiff’s case.
[15] I can find no examples where the judge’s findings or comments suggested a misunderstanding of the evidence. Further, I think he was reasonable in his approach to adjourn the trial. There was no appealable error in this regard.
Cumulative Affect
[16] Counsel for the appellant is quite correct in saying that with respect to the issues of judicial behaviour, in considering an appeal, we must consider the circumstances, cumulatively. However, even on such a basis, in my opinion, while perhaps the judge could have left the questioning and the evidence to the parties and representatives, I can find no real prejudice to the defendant. Cumulatively there was no real and palpable error or errors sufficient to allow the appeal.
[17] The issue to determine liability in this matter was fairly narrow. The parties entered into a temporary or trial contractual arrangement in August 2006. The plaintiff put up a deposit of $7,500.00.
[18] Sometime in January 2007 the defendant wrote a very long letter to the plaintiff essentially saying that the business relationship was not working out. This letter was attached to the claim. The defendant provided the plaintiff with three options to terminate the relationship. The first was,
You can tell me you don’t wish to continue and I will send you your cheque in full and probably also purchase from you any equipment you have brought for packaging. And we go our separate ways.”
[19] In a reply letter dated January 19, 2007 and filed with the claim, the plaintiff accepts option one and requests a refund of his $7,500.00 deposit along with another cheque. The plaintiff clearly stated in the letter that, “I don’t wish to continue to do business with you.” It was never contested that the cheque offered by the defendant was in fact the deposit cheque.
[20] The real issue is with respect to the relationship of the parties after this correspondence. The defendant testified that shortly thereafter the plaintiff came to his house and a new deal was struck that lasted until January 2008. He alleges that the relationship was not terminated in accordance with the letters and when the relationship did finally terminate, the offer of the deposit return was not on the table.
[21] The plaintiff’s evidence was to the contrary. He testified that the defendant asked him to continue to work with him until he found someone else to take on the packaging end of the business. The plaintiff did work with the defendant during that time, not as an ongoing business relationship, but rather deferring the termination.
[22] By letter dated January 11, 2008, which is attached to the claim, the plaintiff reiterates his position and demands his deposit.
[23] The trial judge had to accept the evidence of one of the parties over the other. He would had to make a findings of credibility after watching and listening to the key witnesses. It is clear from the learned trial judge’s ruling that implicitly he preferred the evidence of the plaintiff over that of the defendant. At page 65 of the transcript, he references the correspondence and deems it to be an offer and acceptance. He acknowledged the plaintiff continued to work with the defendant until early 2008, but found that in doing so, the plaintiff was attempting to resolve the situation. He ruled that at no time did he, the plaintiff, reject the offer which was accepted.
[24] The learned trial judge ruled that the deposit of $7,500.00 was due and owing to the plaintiff by the defendant and granted judgment accordingly.
[25] In my opinion, regardless of any irregularities of the trial judge, the findings of the trial judge were supported by the evidence and he made no real or palpable errors which would result in the dismissal of this action or alternatively an order for a new trial.
[26] The appeal is dismissed with costs to the respondent/plaintiff on a partial indemnity scale. The parties can make written submissions in that regard, the respondent within 14 days and the appellant within 7 days thereafter. The submissions should be no more than 5 pages in length.
Justice Thomas A. Bielby
Released: February 7, 2011
CITATION: Anand v. Sunfresh Organics, 2011 ONSC 776
DIVISIONAL COURT FILE NO.: DC-10-056-00
DATE: 20110207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
[on appeal from an order of the Small Claims Court
Deputy Justice S. Boguski, dated May 11, 2010; File No. SC-08-70235-00]
Justice Thomas A. Bielby
BETWEEN:
Yudesh (Andrew) Anand
Respondent/Plaintiff
– and –
Sunfresh Organics; Lee Le Chat
Appellant/Defendants
REASONS FOR JUDGMENT
Released: February 7, 2011