CITATION: Robertson v. Gilchrist, 2015 ONSC 4320
COURT FILE NO.: Brampton DC-14-36/0000
DATE: 20150703
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
R. IAN ROBERTSON
R. Ian Robertson, for the Appellant
Appellant
- and -
DOROTHY GILCHRIST
H.Dhaliwal, for the Respondent
Respondent
HEARD: June 12, 2015.
ENDORSEMENT
COROZA J.:
OVERVIEW
[1] The appellant, R. Ian Robertson, is a lawyer. In September of 2009, the appellant acted for Richard Gilchrist in relation to a family law file.
[2] Richard signed a written retainer. However, according to the appellant, Richard’s mother, Dorothy, promised to pay for his work on the file. The appellant performed the legal work but the outstanding account was never paid and the appellant sued Dorothy on her promise.
[3] A trial was held before a judge of the Small Claims Court. In a very brief endorsement delivered the same day of the trial, the trial judge held that she was not satisfied that there was any type of retainer between Dorothy and the appellant and she dismissed the claim.
[4] The appellant asks this court to set aside the dismissal of his claim and grant him an order directing Dorothy to pay the amount owing on the outstanding account. In the alternative, the appellant asks for a new trial.
[5] The appellant’s arguments come down to the essential claim that the trial judge did not provide adequate reasons for dismissing his claim. He argues that the trial judge appears to have placed a burden on him to memorialize any agreement he had with Dorothy in writing. The appellant submits that while this is a practice he now follows, it does not resolve the issue as to whether he had an agreement with Dorothy to pay the outstanding account.
[6] I accept that argument. I would allow the appeal.
The Retainer
[7] Richard Gilchrist approached the appellant in September of 2009 to act for him in family litigation. According to the appellant, Dorothy Gilchrist accompanied Richard and met with him and his legal assistant, Brenda Knight. Richard subsequently signed a written retainer agreement on September 22, 2009. This retainer agreement was filed as an exhibit at trial.
The Promise made by Dorothy Gilchrist
[8] According to the appellant, Dorothy Gilchrist personally guaranteed all of the payments for his outstanding account. At trial the appellant and his legal assistant, Brenda Knight, testified. Dorothy responded to the claim and was self-represented. She testified on her own behalf and she called her son, Richard.
The Appellant’s Position
[9] The appellant and Ms. Knight testified that Dorothy made numerous promises to take care of the outstanding account and provided them with a number of cheques signed by her to pay for any outstanding balance. The appellant testified that, based on Dorothy’s promise, he continued to work on the file and eventually the matter was resolved on June 25, 2012. Ms. Knight testified that Dorothy had personally instructed her that they should keep working on the file because she would keep paying the outstanding bills. Ms. Knight also referred to notes that she took confirming that Dorothy had discussed with them about obtaining a loan to pay for the outstanding account.
Dorothy’s Position
[10] Dorothy denied making a promise to pay her son’s legal bills. Dorothy testified she did not believe she was responsible for her son’s legal bills. She testified that she paid money to the appellant by cheque only when her son gave her money. Her son did not have a chequing account and was using her account to pay for his outstanding bills.
[11] Dorothy also denied telling Ms. Knight that she promised to pay the outstanding bills and she took the position that she told Ms. Knight that there was no more money in the middle of June.
[12] Richard testified for his mother at trial. He confirmed Dorothy’s testimony and denied that he did not have funds of his own to pay for his legal bills. He testified that his mother did not make any promise to pay the appellant.
The Trial Judge’s Reasons
[13] After hearing submissions, the trial judge released a short endorsement. The trial judge held:
Trial held. Dorothy Gilchrist was not a party to the action in which Mr. Robertson was retained by Richard Gilchrist. Richard Gilchrist executed a retainer agreement which is extremely comprehensive and it is witnessed by Mr. Robertson. If Dorothy Gilchrist were to have retained Mr. Robertson in any way, I would expect Mr. Robertson to have had her execute a Retainer agreement also. I am not convinced that there is any type of retainer between Dorothy Gilchrist and R. Ian Robertson. Action dismissed as against Dorothy Gilchrist.
ANALYSIS
Is the appellant raising a ground of appeal for the first time on appeal?
[14] Mr. Dhaliwal, on behalf of Dorothy, argues that the appeal should be summarily dismissed because the appellant is raising the concept of indemnification for the very first time in this Court. Counsel argues that a lawsuit has to be decided within the four corners of the pleadings. Counsel argues that indemnification was not pleaded in the plaintiff’s claim at trial and the trial judge could not infer this claim from the pleadings.
[15] I am not persuaded by this submission. I have reviewed the materials filed at trial and the pleadings and I agree with the appellant that a fair reading of paragraphs 9 and 10 of his statement of claim would lead one to conclude that the appellant was suing on an account of legal services provided based on assurances and promises made by Dorothy that she would pay for the legal services.
[16] Furthermore, the appellant testified at trial that he was suing on the promises that Dorothy had made. The appellant put it this way:
Now, based on her assurances that she was getting a bank loan to be able to pay the cost of preparing for and conducting the trial, and I cannot overemphasize those were made on numerous occasions. But based on those assurances I continued on the record here. I continued to represent Richard Gilchrist before the Court, but for those assurances from Dorothy Gilchrist I would have gotten off the record. There would not have been the outstanding balance that is here and I wouldn’t be in this court trying to collect any funds because there wouldn’t be any funds to try to collect.
[17] I see no merit in the submission that the appellant is raising indemnification for the very first time on the appeal. Nor do I agree that no evidence was led on this issue. The appellant and his legal assistant, Brenda Knight, testified in support of his claim that the appellant had an agreement with Dorothy to provide legal services to her son, Richard, for which she would pay. This issue was squarely before the trial judge.
Are the trial judge’s reasons adequate?
[18] The essential complaint made by the appellant in this appeal is that the very brief endorsement does not give him any indication, however concise, of why the result went as it did. To be clear, this is not a case of the trial judge giving no reasons. However, the brief reasons that I review must be intelligible to the litigants.
[19] The appellant argues that the trial judge erred by focusing on his failure to execute a specific retainer agreement with Dorothy. He points out that in her very brief endorsement she did not make any findings of credibility against him or Ms. Knight on the issue of whether Dorothy agreed to pay for her son’s legal bills.
[20] Mr. Dhaliwal argues that in the present case the brief reasons outline what was obvious on the face of the record. The trial judge found that there was no agreement between the appellant and Ms. Gilchrist and that was a finding that was available to her based on the record that was placed before the court.
[21] A trial judge’s reasons must respond to the live issues in the case and will only be viewed as insufficient where they "foreclose meaningful appellate review". In this case, the evidence of the appellant and Dorothy Gilchrist are in conflict, and the appellant is entitled to be able to understand from the reasons why his evidence did not persuade the trial judge that his claim had merit. (See: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 [Sheppard] at para. 55).
[22] I accept that a review of a trial judge’s reasons from the Small Claims Court cannot be done without considering the context in which trial judges of that court operate. By the very nature of the type of work, the tremendous volume, and the fact that most litigants in that court are self-represented, the judges of the Small Claims Court must often dispense justice that is summary and efficient. However, this does not mean that trial judges of that court do not have a duty to give adequate reasons. (See: Doerr v. Sterling Paralegal, 2014 ONSC 2335, [2014] O.J. No. 1732 (Div. Ct.) at para. 19.)
[23] With great respect to the trial judge, I agree that the focus of her very brief endorsement appears to be the fact that the appellant did not formally execute anything in writing with Dorothy. The trial judge concludes that there was no retainer between Dorothy and the appellant and then goes on to dismiss the claim. It may be that the trial judge was referring to the fact that she did not believe there was any agreement between the appellant and Dorothy for consideration, but the trial judge does not make that clear.
[24] In light of the fact that the appellant and Ms. Knight specifically testified that Dorothy had indeed made promises to them to pay for legal work on an ongoing basis, it was incumbent on the trial judge to explain more fully how she reconciled their evidence with Dorothy’s denial - which was not a denial that she had met with the appellant and Ms. Knight, or that she paid cheques to the appellant, but merely that she had made no promise to pay for any of her son’s legal bills. The endorsement does not assist as to whether the trial judge discounted the evidence given by anyone at trial. She only referred to the fact she would have expected a formal retainer agreement to have been executed if there was such an agreement.
[25] As stated by the Supreme Court of Canada in Sheppard, the appellant was entitled to understand why his evidence did not support his claim. The reasons the trial judge gives for rejecting the claim are conclusory and focus on the failure of the appellant to execute a formal retainer agreement. The appellant never disputed that he did not have a formal retainer with Dorothy. The appellant’s argument was that Dorothy promised him on a number of occasions to pay for his account in exchange for legal services that he would provide her son. According to the appellant, based on that promise he continued to act for Richard. He called Ms. Knight to confirm all of this. He was entitled to know why his evidence was rejected. As a result, I would allow the appeal.
CONCLUSION
[26] The appellant argues that if I were to allow the appeal, I should grant his claim. I acknowledge that this may be in the interests of the parties and promote the goal of expediency.
[27] However, I am not persuaded that this is the preferable course of action for two reasons. First, for me to grant judgment for the appellant I must be satisfied that all the findings of fact necessary to support granting the claim must have been made explicitly by the trial judge, or must not be an issue. The reasons of the trial judge in this case simply do not contain in explicit terms all the findings necessary for me to grant the claim. Second, this case turns on credibility. I lack the opportunity that a trial judge will have in assessing the credibility of the appellant, Ms. Knight, Dorothy, or Richard when they give their evidence.
[28] I decline to grant judgment and a new trial is ordered before a differently constituted Small Claims Court trial court.
Coroza J.
Released: July 3, 2015
CITATION: Robertson v. Gilchrist, 2015 ONSC 4320
COURT FILE NO.:
DATE: 20150703
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: ROBERTSON v. GILCHRIST
BEFORE: Coroza, J
COUNSEL:
R. Ian Robertson, for the Appellant
H.Dhaliwal, for the Respondent
REASONS FOR JUDGMENT
Coroza, J
DATE: July 3, 2015