CITATION: Andpet Realty Limited v. Champion Products Corp., 2015 ONSC 5961
DIVISIONAL COURT FILE NO.: DC-14-48-00
DATE: 20150925
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JUSTICE C.J. CONLAN
BETWEEN:
ANDPET REALTY LIMITED
Gavin Leitch, for the Plaintiff (Respondent)
Plaintiff (Respondent)
- and -
SU CORP. (WINDSOR)
and
CHAMPION PRODUCTS CORP.
Ran Huang, for the Defendants (Appellants)
Defendants (Appellants)
BETWEEN:
ANDPET REALTY LIMITED
Gavin Leitch, for the Plaintiff (Respondent)
Plaintiff (Respondent)
- and -
ISG CHAMPION INC.
and
CHAMPION PRODUCTS CORP.
Ran Huang, for the Defendants (Appellants)
Defendants (Appellants)
HEARD: September 25, 2015
REASONS FOR JUDGMENT
Introduction
[1] On February 10, 2014, at the Small Claims Court in Owen Sound, Ontario, two actions were tried together before Deputy Judge Thomson.
[2] The first action involved Andpet Realty Limited as the Plaintiff and SU Corp. (Windsor) and Champion Products Corp. as the Defendants. The second action involved the same Plaintiff and ISG Champion Inc. and Champion Products Corp. as the Defendants.
[3] The Plaintiff had leased commercial premises to the Defendants. There were two separate leases. After the Defendants vacated the premises, the Plaintiff sued them for damages for breach of contract.
[4] In written reasons, with respect to the first action, the Deputy Judge granted judgment in favour of the Plaintiff and against SU Corp. (Windsor) in the amount of $5,887.09, plus costs and interest. The claim against Champion Products Corp. was dismissed. Regarding the second action, judgment was granted in favour of the Plaintiff and against ISG Champion Inc. in the amount of $12,982.21, plus costs and interest. Again, the claim against Champion Products Corp. was dismissed.
[5] The Defendants appeal. They advance five grounds of appeal.
[6] For the reasons that follow, the Appeal is dismissed.
The Standard of Review
[7] The jurisdiction for this Appeal is found in section 31 of the Courts of Justice Act, 1990, c. C.43, as amended. That section provides as follows:
- An appeal lies to the Divisional Court from a final order of the Small Claims Court in an action,
(a) for the payment of money in excess of the prescribed amount, excluding costs; or
(b) for the recovery of possession of personal property exceeding the prescribed amount in value.
[8] The normal principles of deference apply to appeals from decisions of the Small Claims Court. In short, I may substitute my own view of the evidence and draw my own inferences only if the lower Court committed a palpable and overriding error or made findings of fact or drew inferences that are clearly unreasonable or unsupported by the evidence. Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31 (S.C.C.).
Analysis
Ground of appeal number one – the lower Court’s reliance on subsection 35(2) of the Evidence Act, R.S.O. 1990, c. E.23, as amended (“Evidence Act”)
[9] Subsection 35(2) of the Evidence Act provides as follows:
(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.
[10] Paragraph 11 of the Deputy Judge’s reasons is reproduced below:
I do not doubt the correctness of the CAM or property tax charges as set out in the schedules found at Tabs 8 and 9 of Exhibit 1. Section 35(2) of the Evidence Act (Ontario) provides that any writing or record of any transaction is admissible as evidence of such transaction. If it is made in the ordinary course of business and subsection 3 of that section requires at least 7 days’ notice be given to all parties in the action of the intention to rely on such business record. I find that the schedules found at Tabs 8 and 9 of Exhibit 1 are business records within the meaning of Section 35(2) of the Evidence Act (Ontario). I further find that the Exhibit 1 was provided by Andpet to the defendant’s in both actions more than 7 days prior to the commencement of the trial. Therefore, I find that Exhibit 1 and more particularly Tabs 8 and 9 of Exhibit 1 constitute business records within the meaning of Section 35(2) of the Evidence Act (Ontario) and may be relied upon by me.
[11] The Appellants argue that the lower Court confused the issues of admissibility, on the one hand, and correctness or completeness, on the other hand, of the evidence referred to in paragraph 11 of the reasons. It is alleged that the Deputy Judge “erred in fact and in law”.
[12] This argument was not pressed in oral submissions. No time was spent dealing with it. It has no merit, in my view.
[13] It must be presumed that the Deputy Judge was aware of such a basic principle of evidence that there is a distinction between (i) admissibility and (ii) the weight to be attached to individual items of evidence.
[14] It was for the lower Court to decide what weight to give to the documentary evidence that had been ruled admissible under the Evidence Act. There is no issue taken with the admissibility ruling, per se. Obviously, the Deputy Judge found that the documentary evidence was credible and reliable. There is no reason to disturb that conclusion. No error was committed.
Ground of appeal number two – the lower Court’s credibility assessment of the witnesses
[15] Paragraphs 3 and 12 of the Deputy Judge’s reasons are reproduced below:
Mr. Peter Van Dolder (“Mr. Van Dolder”) gave evidence on behalf of the plaintiff and Mr. Ashkok Sood (“Mr. Sood”) gave evidence on behalf of the defendants.
I accept Mr. Van Dolder’s evidence that he forwarded the supporting documentation for the changes in the additional rent on numerous occasions to SU and ISG. Where there is a conflict between the evidence of Mr. Van Dolder and Mr. Sood I accept the evidence of Mr. Van Dolder.
[16] The Appellants submit that the lower Court “erred in fact and in law” by not providing reasons for coming to the conclusion stated in paragraph 12 of its decision.
[17] This was the chief argument made by the Appellants’ counsel in oral submissions. With respect, it fails. No error was committed.
[18] Reasons for decision must be read as a whole. Individual paragraphs cannot be parsed out and dissected in isolation from one another.
[19] If one confined the review to just paragraphs 3 and 12 of the Deputy Judge’s reasons, then one may very well find that the lower Court gave no reasons for favouring the evidence of the Plaintiff’s witness over that of the Defendants’ witness.
[20] One must examine, however, the paragraphs that follow clause 12. Those paragraphs enlighten the reader as to why the evidence of Mr. Sood was rejected on the contentious issue of whether the Plaintiff had forwarded to the Defendants the supporting documentation for the changes in the additional rent.
[21] Implicit in the reasons of the Deputy Judge is that he found the evidence of Mr. Sood to be inconsistent and irreconcilable with the fact that the additional rent charges would have been readily apparent to the Defendants through the annual reconciliation process and the credits received by the Defendants (see paragraphs 13, 14 and 15 of the reasons of the lower Court). That finding is justifiable.
[22] On a reading of the reasons of the Deputy Judge as a whole, it is clear that a sufficient explanation was offered by the lower Court as to why Mr. Van Dolder’s evidence was preferred over that of Mr. Sood.
Ground of appeal number three – the supporting documentation for additional rent calculations
[23] Paragraph 16 of the Deputy Judge’s reasons is reproduced below:
I find that ISG and SU have raised the defence that they were never given the documentation supporting the changes in the property taxes or CAM charges simply because they did not want to pay the additional rent, which had been agreed to in the leases which each corporation had signed with Andpet. I find that ISG and SU had the supporting documentation for the additional rent calculations and are simply saying that they did not have this information in an effort to avoid paying the rent properly due Andpet.
[24] The Appellants argue that the lower Court “erred in fact and in law” in coming to the conclusion expressed at paragraph 16 of its decision because “the evidence clearly established that such documentation was not provided”.
[25] This argument was not pressed in oral submissions. No time was spent dealing with it. It has no merit, in my view.
[26] The evidence did not “clearly establish that such documentation was not provided”. The Deputy Judge accepted the evidence of Mr. Van Dolder that it was. No error was committed in doing so.
Ground of appeal number four – costs
[27] Paragraphs 8 and 24 of the Deputy Judge’s reasons are reproduced below:
I was not provided with any case law or argument to justify granting a judgment against CPC. I find that there was no contractual relationship, either express or implied between CPC and Andpet. I find that there is no basis for the claim against CPC and as a result the claims against CPC in each action are dismissed.
No costs are awarded to CPC as no additional costs were incurred by CPC in defending these actions.
[28] The Appellants submit that the lower Court “erred in fact and in law” by not awarding costs in favour of Champion Products Corp.
[29] Apart from the issue of the overall credibility assessment dealt with above, this was the other main argument advanced by the Appellants’ counsel in oral submissions.
[30] With respect, this argument fails. No error was committed.
[31] Costs are discretionary. There is a presumption that a successful party will normally be entitled to some costs. Champion Products Corp. was successful in that both actions were dismissed as against it. In the normal course, it would have been entitled to some costs.
[32] But this was not the normal course. Two actions were tried together. The two actions were interrelated. Mr. Sood was the principal actor for the Defendants in both actions. He testified at trial for all of the Defendants in both actions. All of the Defendants in both actions were represented by the same agent.
[33] In the circumstances, it was open to the Deputy Judge to find that “no additional costs were incurred by CPC in defending these actions”. The lower Court’s exercise of discretion in not awarding costs in favour of Champion Products Corp. was a reasonable one.
Ground of appeal number five – the arithmetic
[34] Paragraphs 20 and 21 of the Deputy Judge’s reasons are reproduced below:
The evidence with respect to the early termination of SU’s lease with Andpet is vague. The allegation of SU that there was a tenant to take over the lease effective November 1, 2011 was not clearly denied. I find that there was a tenant to take over the lease and that Andpet has not proven the loss. I am, therefore going to deny the claim by Andpet for rent for the period November 1, 2011 to June 30, 2012. This will have the effect of reducing the claim against SU by $28,181.68.
For the foregoing reasons judgment is hereby granted to Andpet against SU in the amount of $5,887.09 plus costs of the trial, including a representation fee of $1,250.00 inclusive of HST plus disbursements for issuing the claim, serving the claim and setting the matter down for trial.
[35] The Appellants submit that the lower Court “erred in fact and in law” by not dismissing the claim against SU Corp. (Windsor) on the basis that $25,000.00 (alleged by the Defendants to be the Plaintiff’s claim as per its pleading) less $28,181.68 is a negative figure, not $5,887.09.
[36] This argument was not pressed in oral submissions. Very little time was spent dealing with it. It has no merit, in my view.
[37] I accept the submission by Mr. Leitch that the $5,887.09 was arrived at by making deductions from the total alleged damages sustained by the Plaintiff and not $25,000.00. In other words, the Plaintiff had specifically pleaded that its damages were well in excess of $25,000.00 but that it would limit its recovery to the ceiling in Small Claims Court, $25,000.00. That is not an unusual pleading to see in Small Claims Court.
[38] The Deputy Judge committed no error in using the actual amount of alleged damages (rather than $25,000.00) as the starting point and then reducing that quantum for what had not been proven by the Plaintiff at trial.
[39] If, for example, it had been found that the Plaintiff had, after deductions, proven $30,000.00 in damages, it would have been an error for the lower Court to have awarded the Plaintiff that amount because it exceeds the $25,000.00 ceiling.
[40] Here, however, after the deductions for damages not proven, the award was calculated to be $5,887.09. That is, of course, within the monetary jurisdiction of the Small Claims Court.
[41] I see nothing irregular about what the Deputy Judge did. I was provided no authority that suggests that the procedure followed by the lower Court is impermissible.
Conclusion
[42] Despite the succinct arguments advanced by Ms. Huang, both oral and in the Factum, the appeal is dismissed.
[43] Andpet Realty Limited is entitled to some costs. If counsel cannot settle that issue, I will accept written submissions forwarded to Melissa.Curtis@ontario.ca. Those submissions shall not exceed two pages, excluding attachments. Andpet Realty Limited shall file its written submissions within two weeks of the release of this decision. The other parties shall file their submissions within one week thereafter. There shall be no reply.
C.J. CONLAN J.
Released: September 25, 2015
CITATION: Andpet Realty Limited v. Champion Products Corp., 2015 ONSC 5961
DIVISIONAL COURT FILE NO.: DC-14-48-00
DATE: 20150925
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C.J. CONLAN J.
BETWEEN:
ANDPET REALTY LIMITED
Plaintiff (Respondent)
- and –
SU CORP. (WINDSOR)
and
CHAMPION PRODUCTS CORP.
Defendants (Appellants)
B E T W E E N :
ANDPET REALTY LIMITED
Plaintiff (Respondent)
- and –
ISG CHAMPION INC.
and
CHAMPION PRODUCTS CORP.
Defendants (Appellants)
ENDORSEMENT
Released: September 25, 2015