Mazinani v. Clark, 2014 ONSC 7100
DIVISIONAL COURT FILE NO.: 231/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, HORKINS AND D. M. BROWN JJ.
BETWEEN:
ELENA ELNAZ MAZINANI o/a MAZINANI LAW OFFICES
Applicant
– and –
RICHARD THOMAS CLARK
Respondent
Joseph A. Carpio, for the Applicant
Murray I. Teitel, for the Respondent
HEARD at Toronto: December 8, 2014
D. M. BROWN J. (orally)
1The applicant, a lawyer, commenced a collection claim in the amount of $3,937.50 in the Small Claims Court on May 7, 2013 against the respondent, her former client, for unpaid invoices. Disputes then arose about the adequacy of documentary production made by the applicant.
2On April 10, 2014, Deputy Judge Shapiro heard a motion by the defendant to strike the plaintiff’s claim and defence to counterclaim on the basis that she had contravened a production disclosure order made by another Deputy Judge on July 29, 2013. On that motion the applicant asserted that she had produced her entire file to the defendant.
3It is clear from that endorsement of Deputy Judge Shapiro that he had reviewed the materials before him, including Exhibit C to Mr. Clark’s affidavit of March 27, 2014 which attached the entirety of the file disclosed and produced by the plaintiff to the defendant back in 2013. Deputy Judge Shapiro wrote that he could not be certain whether the plaintiff had complied with the prior court disclosure order so he made a very clear order requiring the plaintiff to “produce to the defendant in chronological order copies of all documents, correspondence and other materials referred to in her account of February 12, 2013, in one package on or before April 17, 2014 as well as any other documentation relating to the defendant.”
4On April 10, 2014, following the motion, Ms. Mazinani emailed defendant’s counsel as follows:
Further to the motion of April 10, 2013 (sic) please note that the email below including the attached file was emailed to you office on August 16, 2014 (sic).
We will bring this email and attachment to the attention of Deputy Judge Shapiro.
The dates in the email were wrong. Ms. Mazinani evidently was referring to her August 16, 2013 email to defendant’s counsel.
5Then on April 16, 2014, Ms. Mazinani sent the following email to defendant’s counsel:
On August 16, 2013 our office emailed you the attached correspondence (copy of the file) a copy of the file, including correspondence with Citizenship and Immigration Canada, correspondence to and from client, statement of accounts, instructions to clients, emails and letters from 2012 to 2013.
Our office will bring to D.J. Shapiro’s attention your misrepresentations to the court and we will be seeking costs.
6The April 10, 2014 matter came back on before Deputy Judge Shapiro on May 8, 2014. In his endorsement he wrote:
I had specifically ordered that the copies of all documents and correspondence chronologically and referred to in the account to the defendant dated February 12, 2013 be produced.
I am not satisfied that this has been done.
Ms. Mazinani has not complied with my order.
7Deputy Judge Shapiro had ordered the plaintiff to deliver a package of documents in chronological order. The record before us did not contain evidence that prior to the return of the motion on May 8, 2014, the applicant had delivered such a package of documents to the defendant; she simply re-sent to the defendant her email disclosure of August, 2013. In light of that state of affairs, instead of granting the defendant’s motion to strike the claim, the Deputy Judge exercised his discretion to award costs against the plaintiff:
I am however prepared to impose significant cost consequences. Failure to do so would bring the administration of justice into disrepute. The court has an obligation to enforce its own process and give the other litigant an effective remedy.
I therefore order that the plaintiff pay to the defendant the sum of $2,000 for costs of the motion.
8Ms. Mazinani seeks judicial review of that May 8, 2014 cost order.
9An appeal lies to this court from a final order of the Small Claims Court for the payment of money in excess of $2,500. As noted, the applicant seeks judicial review of an interlocutory order of the Small Claims Court for $2,000, an amount less than the prescribed threshold for appeals to this court from final orders of the Small Claims Court.
10As this court has made clear on several occasions, although this Court possesses the jurisdiction to consider an application for judicial review from an interlocutory order of a judge of the Small Claims Court where the interlocutory order was made without jurisdiction or in breach of principles of natural justice, this Court will not exercise its judicial review jurisdiction where the judicial review application is, in its essence, an appeal by a different name: Millard v. DiCarlo, 2014 ONSC 1218; Peck v. Residential Property Management Inc., [2009] O.J. No. 3064; Pardar v. McKoy, 2011 ONSC 2549.
11The materials disclosed that the applicant’s judicial review application is nothing other than an appeal by a different name of an interlocutory costs order. There is no issue of want of jurisdiction or breach of natural justice. Deputy Judge Shapiro made a clear and quite reasonable production order on April 10, 2014 and the applicant, a lawyer, failed to comply with it. In reaching this conclusion we reject the submission of the applicant that Deputy Judge Shapiro lost jurisdiction or breached the rules of natural justice because of the concern he expressed regarding the production of the CIC file. Read purposively and as a whole, it is quite clear that his production order on April 10, 2014 was directed at allowing him to be able to assess whether complete production had been made or not. In order to accomplish this objective, it was crucial that the documents and correspondence in the file be arranged chronologically so that they could be cross-referenced to the accounts that were the subject of the litigation. There is no issue that this was not done.
12The Deputy Judge possessed the jurisdiction to impose cost sanctions against the plaintiff for such litigation misconduct instead of striking out her claim. The amount of the costs award was reasonable in the circumstances. In this regard, it is important to note that the defendant’s motion to strike which was before the Deputy Judge on April 10 and May 8, 2014, was a motion to strike both the plaintiff’s claim as well as her defence to the defendant’s counterclaim which sought $25,000 in damages. As well, the Deputy Judge gave reasons for the costs order and thus there is no merit to the applicant’s submission that he breached the rules of natural justice in making that costs order.
13The application is dismissed.
SACHS J.
COSTS
14I have endorsed the Record as follows, “This application is dismissed for reasons given orally by D. M. Brown J. The respondent, as the successful party, has made a request for party and party costs fixed in the amount of approximately $9,000. The applicant argued that a more reasonable amount was $3,000. In making this submission, the applicant urged us to consider issues of proportionality. We agree with the applicant that proportionality is an important principle to keep in mind when dealing with the costs of a small claims court matter. However, in our view, this application was totally without merit and trying to circumvent the rules restricting the right of appeals from the interlocutory orders of small claims court judges should be discouraged. Balancing these two considerations and applying the principles governing the award of costs set out by the Court of Appeal in Boucher, we conclude that a fair and reasonable amount to award the respondent for costs is $5,000, all inclusive.”
D. M. BROWN J.
SACHS J.
HORKINS J.
Date of Reasons for Judgment: December 8, 2014
Date of Release: December 10, 2014
CITATION: Mazinani v. Clark, 2014 ONSC 7100
DIVISIONAL COURT FILE NO.: 231/14
DATE: 20141208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, HORKINS AND D. M. BROWN JJ.
BETWEEN:
ELENA ELNAZ MAZINANI o/a MAZINANI LAW OFFICES
Applicant
– and –
RICHARD THOMAS CLARK
Respondent
ORAL REASONS FOR JUDGMENT
D. M. BROWN J.
Date of Reasons for Judgment: December 8, 2014
Date of Release: December 10, 2014