C.M. v. E.Y. et al., 2015 ONSC 7481

CITATION: C.M. v. E.Y. et al., 2015 ONSC 7481

DIVISIONAL COURT FILE No.: DC-15-0000111

DATE: 20151214

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

C.M.

Plaintiff

– and –

E.Y., WILSON YEUNG, FRANKIE YEUNG, AND IRENE YEUNG

Defendants

C.M., Self-represented

Gary McCallum, for the Defendants

HEARD at Toronto: December 2, 2015

ENDORSEMENT

Wilton-Siegel J.:

[1] The plaintiff in this action, C.M. (the “plaintiff”), appeals a decision dated February 2, 2015 of Deputy Judge Clemenhagen of the Toronto Small Claims Court (the “Decision”).

The Small Claims Court Action

[2] In this action, the plaintiff asserted a number of claims against the defendants.

[3] First, the plaintiff sought reimbursement in the amount of $9,500 for a diamond ring that has been lost. The plaintiff alleged that the defendant E.Y. stole the diamond ring that the plaintiff had placed in a strong box. The strong box had been kept by several people including the plaintiff’s mother, a friend of the plaintiff and finally by the defendant. When the plaintiff returned from Hong Kong in March 2013, she opened the strong box, with the assistance of a locksmith (as she had apparently lost the key or the code), to find the diamond ring missing.

[4] The Deputy Judge accepted the evidence of the defendant that the plaintiff’s husband had removed the diamond ring. He dismissed the claim on the basis that the defendant, as the bailee of the strong box, had no obligation to prevent the husband from removing any contents, merely to deliver back the strong box to the plaintiff.

[5] Second, the plaintiff alleged that the defendant E.Y. had stolen an outfit of hers. The plaintiff valued her loss at $300. The plaintiff based this on evidence regarding the defendant’s character that she acknowledged was circumstantial, but which she said proved that the defendant had taken an audio book that the plaintiff had bought for her adopted daughter. The Deputy Judge dismissed this claim on the ground that there was no proof that the outfit was stolen, let alone stolen by the defendant.

[6] Third, the plaintiff sought reimbursement from the defendant E.Y. for the amount of $1,570, which the plaintiff paid her for the purpose of fixing the locks on her house while the plaintiff was in Hong Kong. The plaintiff says that the defendant took the money but did not replace the locks. Her evidence is that the number of the lock continued to match the number of her key. The Deputy Judge did not address this claim in the Decision. I have proceeded on the basis that the Deputy Judge dismissed this claim for lack of evidence that the locks had not been changed.

[7] Fourth, the plaintiff claimed loss in the form of damage to her car as a result of a minor incident on September 10, 2013. The plaintiff asked the defendant E.Y. to drive her to the bank. They used the plaintiff’s car. On leaving the bank, the plaintiff’s car suffered some scratching that remains unrepaired. The plaintiff seeks damages of $2,991.08 for such scratching on her car.

[8] The Deputy Judge dismissed the claim on the grounds that negligence had not been established. In addition, he held that the plaintiff had assumed the risk of damage which required the plaintiff to claim against her insurer. Further, the Deputy Judge took into consideration the fact that the car had not been repaired which, in practical terms, meant that the plaintiff could not demonstrate any economic loss. In addition, because the plaintiff did not obtain an estimate of the alleged damage to her car until April 2014, the Deputy Judge noted that there was a possibility that the damage noted in April 2014 had occurred sometime in the intervening period.

[9] Fifth, the plaintiff sought reimbursement of $847.60 that the plaintiff paid to have the brakes on her car repaired. The plaintiff says that the wear and tear on her car was caused by the use of the car by the defendant E.Y. and her husband, who runs a delivery business. The Deputy Judge did not address this claim in the Decision. The circumstances of the alleged use of the car by the defendants, and the evidence of such use, is lacking. I have proceeded on the basis that the Deputy Judge dismissed this claim for lack of evidence that the defendants used the plaintiff’s car without the plaintiff’s consent.

[10] Lastly, the plaintiff also sought certain amounts that she says resulted from the loss of her friendship with B.K. (“B.K.”). The plaintiff alleged that these costs were the result of a breach of trust and confidence of the defendant E.Y.. She alleges that the defendant made untrue statements about her to the Children’s Aid Society (the “CAS”) and to B.K..

[11] The plaintiff says that, when she returned from Hong Kong, B.K. severed their long-standing relationship as a result of conversations between B.K. and the defendant E.Y.. The plaintiff says that prior to her departure for Hong Kong, B.K. had agreed to act as her immigration agent in respect of the child that the plaintiff intended to adopt. The plaintiff says that the immigration matters would have gone much more smoothly and cheaply if B.K. had been involved. As a result of the termination of their relationship, the plaintiff has had to incur three bills from other immigration consultants and/or lawyers totaling $2,700, for which she sought reimbursement. The plaintiff also says that the defendant’s statements to the CAS resulted in her incurring legal bills in fighting the actions of the CAS which ultimately resulted in the apprehension of the plaintiff’s adopted daughter.

[12] The Deputy Judge dismissed these claims for legal expenses on the grounds that the plaintiff’s expenses were caused by her own problems that had nothing to do with the defendants.

The Standard of Review

[13] The appeal is brought pursuant to section 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The standard of review is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 in paras. 6-10 and 36-37. On a pure question of law, the standard of review is correctness. The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a "palpable and overriding error". Questions of mixed fact and law are subject to the “palpable and overriding error” standard, unless it is clear that the trial judge made an error of law or principle that can be identified independently in the judge's application of the law to the facts of the case.

[14] I would note that, at the outset of the hearing, the plaintiff indicated that she wished to have the action set aside in order that she could focus on her daughter. The Court explained that, in the absence of agreement of the defendants, it was not possible to set aside the Decision other than pursuant to the appeal. Accordingly, the appeal proceeded.

Analysis and Conclusions

[15] As a preliminary matter, the defendants sought to leave to file a supplementary appeal book and compendium. The plaintiff opposed the motion. The materials proposed to be filed were the pleadings of the parties in the Small Claims Court action, as well as a separate copy of the Decision of the Deputy Judge. The pleadings are necessary for an understanding of the Decision. The plaintiff would not be prejudiced if the materials are admitted. Accordingly, the defendants are granted leave to file the supplementary materials.

[16] The plaintiff seeks an order setting aside the Decision. First, she says the Deputy Judge misunderstood and misstated the truth regarding the facts pertaining to the defendant E.Y.’s alleged untrue statements regarding the plaintiff that caused the CAS involvement with her child. Second, she says the Deputy Judge made an inaccurate decision based on insufficient facts. Third, she says that the defendant E.Y. committed perjury in giving her evidence.

[17] As these grounds of appeal are general in nature, rather than specific to the plaintiff’s particular claims, I will address them first on that basis and then add certain comments regarding specific claims. While I have considerable sympathy for the plaintiff’s challenges in proving her case, these grounds of appeal have not been established for the following reasons.

[18] First, as I read the Decision, the content of any statements made by the defendant E.Y., to the extent there is any evidence of what she may have said, did not ground any decision of the Deputy Judge. As set out above, the Deputy Judge essentially based his determinations regarding each of the plaintiff’s claims on a lack of supporting evidence. I would also note that there is no express finding that the defendant E.Y. was more credible than the appellant. Instead, even in respect of particular claims in which the parties took opposite positions on the facts — e.g., the extent of the scraping on the car, the loss of the ring and the lost outfit, etc. — the Deputy Judge decided the issue on the failure of the plaintiff to prove her case with physical evidence, rather than on a finding that the defendant E.Y. was more credible than the plaintiff.

[19] In addition, while the plaintiff considers that the Deputy Judge made his Decision based on an assessment that she was a bad person, I do not see such a finding in the Decision. While the Deputy Judge had to understand the broad background of the relationship between the parties to understand some of the specific claims, the Deputy Judge made his specific findings on the basis of the appellant’s failure to satisfy the evidentiary onus on her regarding her specific claims rather than on any assessment of the plaintiff’s character.

[20] For these reasons, neither of the first two grounds of appeal can succeed. The onus rested with the plaintiff to produce some evidence beyond her allegations of her specific claims which, as discussed further below, she did not satisfy.

[21] The third ground of appeal cannot exist in the absence of clear proof of perjury. The only evidence before the Court consists of bald allegations of the plaintiff rather than specific instances that were material to the Decision.

[22] Turning to the specific claims of the plaintiff, having reviewed the transcript and the evidence provided by the plaintiff, I am satisfied that there was a reasonable basis for the findings of the Deputy Judge with respect to the ring, the outfit, the locks on her house and the brakes. In absence of any documentary or other physical evidence regarding these claims, the Deputy Judge could reasonably conclude that the plaintiff had not made out her case on a balance of probabilities.

[23] With respect to the damage to the plaintiff’s car, the Deputy Judge could reasonably find in the circumstances that the plaintiff had assumed the risk of any damage in asking the defendant to drive her to the bank. Lastly, as the plaintiff acknowledged, she did not assert a defamation claim regarding the statements of the defendant E.Y. to B.K. and the CAS. Instead, the plaintiff’s claims are apparently based on an allegation of breach of trust. The Deputy Judge could reasonably conclude that there is no actionable breach of trust claim arising in the circumstances presented in this case.

[24] In summary, I can find no palpable and overriding error in the determinations of the Deputy Judge, nor any error of law, in the Decision. In these circumstances, the appeal must be dismissed. The defendants seek costs of $845, representing their disbursements and $100 on account of legal fees. This is reasonable in the circumstances. Accordingly, the defendants are awarded costs of $845 on an all-inclusive basis.

Wilton-Siegel J.

Released: December 14, 2015

CITATION: C.M. v. E.Y. et al., 2015 ONSC 7481 DIVISIONAL COURT FILE No.: DC-15-0000111 DATE: 20151214

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

C.M.

Plaintiff

– and –

E.Y., WILSON YEUNG,

FRANKIE YEUNG, AND IRENE YEUNG

Defendants

ENDORSEMENT

Wilton-Siegel J.

Released: December 14, 2015