Court Information
CITATION: Garcia v. Cheng, 2014 ONSC 5520
DIVISIONAL COURT FILE NO.: 385/12
DATE: 20140923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CLAUDIA EMILANI GARCIA and MAURICIO EMILANI GARCIA Plaintiffs (Respondents in Appeal)
– and –
QUI LING CHENG Defendant (Appellant)
Counsel: Gus F. Camelino, for the Plaintiffs In Person
HEARD at Toronto: September 23, 2014
Oral Reasons for Judgment
C. HORKINS J. (orally)
[1] This matter arises from a Small Claims Court trial held before Deputy Judge P. Libman on July 27, 2012.
[2] In the Small Claims Court action, Claudia Garcia and Mauricio Garcia sued the appellant/defendant Qui Ling Cheng for return of rent monies that the respondents had paid prior to moving into the rental premise. They paid four months of rent plus other fees for a total of $5,880.00.
[3] The rental agreement was terminated before the end of the first month. The respondents say that Ms. Cheng terminated the rental agreement and they were forced to move out. Ms. Cheng refused to return the prepaid rent money. There is no dispute about this.
[4] The respondents sued Ms. Cheng in the Small Claims Court seeking return of the rental money plus an amount to compensate them for alleged damage that was caused to their belongings. They said that Ms. Cheng had removed their belongings from the rental accommodation and had left the belongings unattended outside where the belongings were damaged.
[5] The respondents were successful at trial before the Small Claims Court and received a judgment in the amount of $6,000, plus interest and costs. Upon receipt of this judgment the respondents issued a Notice of Garnishment and this was done before Ms. Cheng pursued this appeal. The money ($1,536.00) was garnished from her account and held by the Enforcement Office at the Small Claims Court.
[6] Ms. Cheng did not perfect her appeal in the Divisional Court on time. As a result, the Registrar dismissed her appeal in May 2013.
[7] On January 20, 2014, Ms. Cheng obtained an order from this Court setting aside the Registrar’s dismissal order and giving her thirty days to perfect her appeal which she has now done. Ms. Cheng had no existing appeal pending from May 2013 through January 20, 2014. On August 7, 2013 the Enforcement Office of the Small Claims Court released the garnished funds to the respondents. Since Ms. Cheng’s appeal had been dismissed, it was proper to release the garnished monies to the respondents pursuant to the judgment of the Small Claims Court that was issued in their favour.
[8] Today, the parties appear on the appeal of the Small Claims Court decision. The respondents are now represented by counsel. He has reviewed the transcript of the Small Claims Court trial and concedes that the trial did not provide the parties with procedural fairness. I agree. It is apparent from the transcript that the trial judge did not follow the usual practice of permitting parties to testify, witnesses to be called and cross-examinations to take place.
[9] For this reason, the respondents consent to setting aside the order of the Small Claims Court judge dated July 27, 2012 and directing that a new trial be held before a different judge. I agree that this should be done. Ms. Cheng wants this Court to order the respondents to return to her the garnished monies of $1,536.00 and to pay her costs of this appeal. In total she wants the respondents to pay her $2,411.00.
[10] I am not prepared to order the respondents to return the garnished monies to Ms. Cheng. The money was properly garnished before Ms. Cheng appealed the judgment. Upon receipt of the Notice of Appeal, further garnishment stopped.
[11] The garnished money was released from the Enforcement Office to the respondents after Ms. Cheng’s appeal was dismissed. It was properly released to the respondents since Ms. Cheng no longer had an outstanding appeal. The respondents have spent the money and it would now be a hardship to order return of the money to Ms. Cheng, particularly given that a new trial will take place and it remains to be seen who will be successful.
[12] If Ms. Chen had followed the Rules of Civil Procedure as she is required to do, and if she had perfected her appeal on time as required, the money would not have been released by the Enforcement Office to the respondents. This is because there would have been a valid existing appeal. However, Ms. Cheng did not follow the Rules and her appeal was struck. This was her fault not the respondents.
[13] In these circumstances it would be grossly unfair to order the respondents to return this money to Ms. Cheng pending the outcome of a new trial.
[14] It is open to Ms. Cheng to seek return of the garnished monies from the respondents in the Small Claims Court. This is a matter that the new trial judge can address. This, of course, would only occur if the Small Claims Court concludes that Ms. Cheng had the right to keep all of the pre-paid rental money after terminating the rental agreement before the end of the first month.
[15] In summary, I order:
(1) The order of Deputy Judge P. Libman dated July 27, 2012 is struck.
(2) I direct that the matter shall be sent back to the Small Claims Court in Toronto for a new trial before a different judge.
(3) I make no order as to costs.
C. HORKINS J.
Date of Reasons for Judgment: September 23, 2014
Date of Release: September 26, 2014
CITATION: Garcia v. Cheng, 2014 ONSC 5520
DIVISIONAL COURT FILE NO.: 385/12
DATE: 20140923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. HORKINS J.
BETWEEN:
CLAUDIA EMILANI GARCIA and MAURICIO EMILANI GARCIA Plaintiffs (Respondents in Appeal)
– and –
QUI LING CHENG Defendant (Appellant)
ORAL REASONS FOR JUDGMENT
C. HORKINS J.
Date of Reasons for Judgment: September 23, 2014
Date of Release: September 26, 2014