CITATION: Fisher v. Clausen, 2013 ONSC 7609
DIVISIONAL COURT FILE NO.: DC-13-08-00
SMALL CLAIMS COURT FILE NO.:SC-12-1159-00
DATE: 20131211
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
ROBERT GRANT FISHER
IN PERSON
Respondent/Plaintiff
- and -
BENNY CLAUSEN
R. REGAN, for the Appellant/Defendant
Appellant/Defendant
HEARD: November 29, 2013
REASONS FOR JUDGMENT
[On appeal from the judgement of
Deputy Justice M.S. Malicki, dated December 11, 2012]
D.L. Edwards J.
[1] The appellant/defendant Benny Clausen (Clausen) appeals the judgment of Deputy Justice M.S. Malicki dated December 11, 2012.
[2] The respondent/plaintiff Robert Grant Fisher (Fisher) commenced an action in the Brampton Small Claims Court against Clausen for alleged debt owing from Clausen to Fisher of $10,000.
[3] Following the trial, Deputy Justice Malicki granted judgment in favour of Fisher in the amount of $10,000, plus costs of $250.
[4] Clawson appeals the decision primarily on the following grounds:
a) the deputy justice failed to remain impartial and intervened excessively in the trial process;
b) the deputy justice reversed the onus of proof from the respondent to the appellant;
c) the deputy justice’s reasons were insufficient.
[5] For the reasons set out below the appeal is allowed. The matter is remitted back to the Brampton Small Claims Court for a new trial.
Background
[6] At the trial both parties were self-represented. Both parties acknowledged that they were not properly prepared for the trial. Each stated that they had corroborating evidence that they had not brought to trial.
[7] Fisher alleged that he gave a $10,000 loan to Clausen that was not documented in any way.
[8] Clausen acknowledged receipt of the sum of $10,000, but said that it was for a joint business venture.
[9] The deputy justice summarized the issue during Clausen's testimony when he stated: “so it's Mr. Fischer's word against your word”.
Standard of review
[10] The standard of review of a deputy justice’s decision is correctness on questions of law. Findings of fact are not to be reversed absent palpable and overriding error. Palpable errors include findings that are clearly wrong, unreasonable or unsupported by the evidence. Questions of mixed fact and law lie along a continuum: Housen v. Nikolaisen [2002] 2 S.C.R.
Analysis
[11] The applicant alleges that the deputy justice intervened excessively in the trial process and failed to remain impartial. In particular the applicant submits that the intervention by the deputy justice during Fisher's cross-examination of Clausen aided Fisher, and demonstrated that the deputy justice lacked impartiality.
[12] As this is an issue of procedural fairness, the standard of review is correctness.
[13] Fisher contended that he had made a loan to Clausen and that he was aware that Clausen was utilizing the funds to purchase carpets. Clausen asserted that the funds were advanced as an investment for the purpose of purchasing carpets, and that Fisher would share in the profits from the resale of the carpets.
[14] During Clausen's cross-examination, Fisher asked a number of questions about the carpets, including whether Clausen had verified the authenticity of the carpets.
[15] At that point the deputy justice intervened and stated:
Let me stop you there. Be that as it may, that doesn't directly relate to the circumstances under which you gave him the money. Whether they were authentic or not has nothing to do with whether it was a loan or an investment. If it was an investment you would be very interested in whether they were authentic carpets.
[16] I am satisfied that this intervention was appropriate and did not demonstrate bias on the part of the deputy justice. Stated another way, the deputy justice was advising the parties that whether the carpets were authentic or not, was irrelevant with respect to the matter in issue, namely whether the funds advanced were a loan or an investment.
[17] This ground of appeal fails.
[18] The appellant also asserts that the deputy justice improperly reversed the onus of proof.
[19] As this is a question of a law, the standard of review is correctness.
[20] In his reasons the deputy justice states:
It is clear that the $10,000 was not a gift. It is also clear that it was not used to repay some previous indebtedness. And the parties do not dispute that the $10,000 was advanced. Because it was clearly not a gift and not a repayment of the previous debt, it is incumbent upon Mr. Clausen to prove that the $10,000 was intended to be for the purpose of a common endeavour or investment of monies in some kind of enterprise.
[21] Clausen did not dispute that the $10,000 had been advanced. He did dispute that the funds advanced were a loan, as contended by Fisher.
[22] It is incumbent upon the plaintiff to prove, on a balance of probabilities, that which he asserts. The defendant need not disprove the allegation. The deputy justice improperly reversed the onus of proof.
[23] The appeal must succeed.
[24] The appellant also contends that the reasons of the deputy justice are insufficient. The standard of review is reasonableness.
[25] The sole reason given by the deputy justice for finding that the funds were advanced as a loan was the fact that Fisher had demanded repayment of the amount.
[26] In his reasons the deputy justice states:
But demands were made and so Mr. Fisher clearly intended to have the return of this money. So there is no question that the $10,000 should be paid back.
[27] It appears that the deputy justice is making a finding that he believes Fisher, but the reasons upon which he bases that finding are unclear.
[28] This is a case where credibility findings are very important, as there is no corroborating evidence whatsoever for the deputy justice to utilize in determining which version of the events he was to believe.
[29] It would have been helpful if the deputy justice had made findings of credibility and utilized those findings to provide reasons to support his decision.
[30] As I have determined that this appeal succeeds due to the reversal of the onus of proof, there is no need for me to make a finding on this ground of appeal.
[31] In summary, the judgment of Deputy Justice Malicki dated December 11, 2012 is set aside; the matter is returned to the Brampton Small Claims Court for a new trial.
[32] Clausen may amend his defence.
[33] Unless the parties agree upon costs, the appellant shall submit his cost submissions within 14 days. The respondent shall submit his cost submissions within 7 days thereafter. All costs submissions shall not exceed 3 pages (excluding the Bill of costs).
Dated: December 11, 2013
D. L. Edwards J.
CITATION: Fisher v. Clausen, 2013 ONSC 7609
DIVISIONAL COURT FILE NO.: DC-13-08-00
SMALL CLAIMS COURT FILE NO.:SC-12-1159-00
DATE: 20131211
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ROBERT GRANT FISHER
RESPONDENT
- and –
BENNY CLAUSEN
APPELLANT
REASONS FOR JUDGMENT
[On appeal from the judgement of
Deputy Justice M.S. Malicki, dated December 11, 2012]
D.L. Edwards J.
Released: December 11, 2013