A. Overview

[1] This is an appeal from the decision of a Small Claims Court Deputy Judge after trial.

[2] Following the breakdown of their common-law relationship in May, 2009, David Roy Hickson and Victoria Thompson had a number of unresolved issues. Some of these were resolved by way of a consent order in the Ontario Court of Justice on February 4, 2014. Their property issues remained outstanding.

[3] On August 15, 2014, Mr. Hickson made a claim in the Small Claims Court against Ms. Thompson for $25,000.00. He asserted that Ms. Thompson had not allowed him to retrieve from her a number of items of personal property including tools and jewellery. He indicated that he wished the items returned, or to be paid the replacement value for them. He included as “Schedule A” a list of these items and what he said were their values.

[4] In her September 2, 2014 statement of defence, Ms. Thomson disputed the claim made against her. She asserted that Mr. Hickson’s claim was inflated. In addition, she noted, among other things, that the trailer had been written off by the insurance company after having been damaged in a storm, that the Playcat snowmobile had been exchanged for a brake job on a truck, and that the electronics and freezer had been recycled because they did not work.

[5] The matter proceeded to a trial in the Small Claims Court on April 1, 2015 before Deputy Judge McLean. Both parties were self-represented and each testified. Immediately following the evidence, the Deputy Judge provided oral reasons for judgment in favour of Mr. Hickson.

[6] The Deputy Judge found that the items listed by Mr. Hickson in Schedule “A” were his property and were acknowledged by Ms. Thomson to be his. Further, he found that the value of the property of $26,000 was correct, based on his evidence and based on Ms. Thompson having signed an acknowledgement document on February 4, 2014. Accordingly, he found Ms. Thompson liable for $25,000, plus re-judgment and post-judgment interest.

[7] Ms. Thompson appeals from that decision.

B. The Positions of the Parties

[8] In her factum, the appellant advances 7 grounds of appeal:

a. That the Deputy Judge erred in law in failing to set out his rational for his judgment with regard to ownership and valuation;

b. That the Deputy Judge erred in law when he misread the evidence in Exhibit 3, dated February 4, 2015;

c. That the Deputy Judge erred when he gave no weight to the evidence of the appellant on the evaluation of items in Schedule A;

d. That the Deputy Judge erred in fact by awarding costs of items in Schedule A to Mr. Hickson when some of those items did not belong to Mr. Hickson;

e. That the Deputy Judge erred in law in awarding pre-judgment interest from February 4, 2014 instead of August 15, 2014

f. That the Deputy Judge erred in law by making an award to Mr. Hickson when there was an agreement between the parties withdrawing all claims against each other;

g. That the Deputy Judge erred in law in allowing the claim which was barred by statute of limitation.

[9] In addition, the appellant sought to tender fresh evidence. Initially, that consisted of two affidavits from her, one from Chris Watt and one from John Wickes. At the oral hearing, she sought to augment this proposed fresh evidence with some medical evidence relating to her health in 2014 and an Appraisal Report purporting to set out the fair market value of what she says is Mr. Hickson’s personal property in her possession.

[10] It is Mr. Hickson’s position that the Deputy Judge made none of the errors alleged. In short, he asserts that his evidence as to the value of his property was unchallenged at trial. He says that the Deputy Judge made a finding as to the value of his property that was open to him on the evidence, and that he provided reasons that were sufficient.

[11] Mr. Hickson says that the fresh evidence is not admissible as Ms. Thompson had actual knowledge of the information contained in the fresh evidence at the time of the trial and, to the extent that she did not have this knowledge, it was obtainable through due diligence.

C. The Relevant Legal Principles

[12] Recently, in Maple Ridge Community Management Ltd. v. Peel Condominium Corp No. 231, 2015 ONCA 520, 255 A.C.W.S. (3d) 196, Justice Hourigan, speaking for the Court, reviewed the standard against which reasons for judgment from the Small Claims Court are to be measured when considered by an appeal court. Reasons must be sufficiently clear to permit judicial review on appeal. They must explain what has been decided and why. However, the appeal court must recognize the informal nature of the Small Claims Court and the volume of cases it handles. This means that context is important to appellate review.

[13] As Ms. Thompson seeks to tender fresh evidence on this appeal, it is important to set out the basis upon which this may be done. Section 134(4)(b) of the Courts of Justice Act provides:

134(4) Unless otherwise provided, a court to which an appeal is taken may, in a proper case…

(b) receive further evidence by affidavit, transcript of oral examination, oral examination before the court or in such other manner as the court directs…

to enable the court to determine the appeal.

[14] The jurisprudence makes clear that the power of an appeal court to admit fresh evidence is a circumscribed one. The four-part test for admissibility requires the party seeking to tender the fresh evidence to establish that: by due diligence it could not have been admitted at trial, it is relevant to a decisive or potentially decisive issue, it is reasonably capable of belief, and, if believed, it could reasonably, when taken with the rest of the evidence, be expected to have affected the verdict (Visagie v. TVX Gold Inc., [2000] O.J. No. 1992 (C.A.), (2000) 187 D.L.R. (4th) 193).

D. Analysis

i) Grounds of Appeal Relating to the Analysis of the Deputy Judge

(a) Appellant’s Issues 1-4

[15] A number of the complaints made by the appellant can be fairly grouped together. I will thus deal with issues 1 through 4 from Ms. Thompson’s factum as one issue. As I understand her primary concern, it is that the Deputy Judge mis-characterized Exhibit 3 as an acknowledgement by her of the value of Mr. Hickson’s personal property, when in fact it was only an acknowledgement of his ownership of the property.

[16] Some factual background is necessary to assess this ground of appeal.

[17] Following the parties’ separation, they were involved in family law proceedings in the Ontario Court of Justice. Those matters resolved on February 4, 2014. In the course of those proceedings, Mr. Hickson prepared a document entitled “Schedule A”, which is a list of “property”, “jewellery” and “tools and equipment” that he says are valued at $26,000. That document was entered as Exhibit 2 in the trial in the Small Claims Court and became the basis of the Deputy Judge’s conclusion as to the value of Mr. Hickson’s property. Mr. Hickson testified about how he reached the values in that document.

[18] Also in the course of the family law proceedings, Ms. Thompson signed a document on February 4, 2014 in which she acknowledged Mr. Hickson’s claims to the items listed in “Schedule A”. In that document, she indicated that she did not know if all of those items were still in her possession, but agreed that Mr. Hickson could attend at her property and retrieve the items he could find. This document was entered as Exhibit 3 in the trial.

[19] It is clear from the statement of defence filed by Ms. Thompson that she disputed the values that Mr. Hickson attributed to the various items listed in Exhibit 2. In her cross-examination of Mr. Hickson, she asked him questions about how he obtained these values. She directly challenged his claim that the jewellery was worth $5,000.00 by tendering her own document that indicated that the value for some of the jewellery was $305.00. She also suggested to him that the “fifth wheel trailer” that he claimed was his property had been destroyed, and that there had been an insurance claim in relation to it settled in April, 2009, before the end of their relationship.

[20] In his Reasons for Judgment, the Deputy Judge found, correctly, that Ms. Thompson had acknowledged that the property listed in Exhibit 2 belonged to Mr. Hickson. He then found that Mr. Hickson’s determination that the value of that property of $26,000.00 was “correct based on his evidence of same and based on Victoria Thomson’s signing the document on February 4, 2014”. He concluded:

Based on the ownership and the values, which seem to be acknowledged, I am going to give judgment for $25,000.

[21] It is my view that the Deputy Judge’s reasons disclose that he made two reversible errors. First, he misapprehended the evidence, leading him to improperly conclude that the undisputed value of Mr. Hickson’s property was $26,000.00. Second, he failed to acknowledge that Ms. Thompson disputed Mr. Hickson’s valuation numbers and to explain why, in light of this dispute, he agreed with Mr. Hickson.

[22] In terms of the first error, I find that the Deputy Judge erred in concluding that Ms. Thompson had acknowledged, in the document that she signed on February 4, 2014, that she agreed with Mr. Hickson’s valuation of his property. Counsel for Mr. Hickson suggests to me that this acknowledgement was implicit. I reject this position. Read as a whole, the document signed by Ms. Thompson cannot, in my view, be fairly understood as an admission by her of anything more than that Mr. Hickson had a claim on the property in Exhibit A. I cannot find in the document any explicit or implicit acceptance by her of Mr. Hickson’s valuation. The Deputy Judge thus misapprehended the meaning of Exhibit 3. As a result, he improperly relied on it as an “acknowledged” valuation. Absent this error, I cannot say that he would have reached the same conclusion as to the value of Mr. Hickson’s property. This error warrants ordering a re-trial.

[23] Second, and really related to the first error, I find that the Deputy Judge failed to adequately consider the challenge to Mr. Hickson’s valuation made by Ms. Thompson. While Ms. Thompson’s cross-examination of Mr. Hickson was neither as elegant nor as probing as it might have been, it is clear to me that she disputed the values Mr. Hickson provided. For instance, she directly challenged, through her own valuation, his assertion that the jewellery was worth the $5,000.00. That she disputed Mr. Hickson’s valuation is also clear from her reading her statement of defence. The Deputy Judge does not seem to have recognized that there was any challenge to Mr. Hickson’s valuation. Yet, it appears to me that this was the core of Ms. Thompson’s position.

[24] On the evidence before him, in order to afford Ms. Thompson procedural fairness, the Deputy Judge was required, at a minimum, to seek clarification from her as to her position on valuation. While it was, of course, open to the Deputy Judge to accept Mr. Hickson’s valuation numbers, before doing so, he had to at least acknowledge that they were disputed, and to explain why he agreed with Mr. Hickson and rejected Ms. Thompson’s challenge. His failure to do so warrants a re-trial as it amounts to a failure to fairly consider the defendant’s position.

[25] In my view, based on these two errors, there needs to be a new trial so that a fair and proper assessment of the evidence of the value of Mr. Hickson’s personal property in Ms. Thompson’s possession can be made.

(b) Appellant’s Issue 5

[26] Given my conclusion that there must be a new trial, it is unnecessary to address the appellant’s concerns about the awarding of pre-judgment and post-judgment interest.

Appellant’s Issue 6

[27] Ms. Thompson argues that the Deputy Judge erred in making an award against her when there had been an agreement between the parties withdrawing all claims against each other.

[28] The evidence before me reveals that on February 4, 2014, a consent order was made by Justice Harrison of the Ontario Court of Justice. A term of that order was that, “All other claims are withdrawn”.

[29] I do not think that the language in the consent order barred Mr. Hickson’s claim. It is of significance that the Ontario Court of Justice had no jurisdiction to address the property issues as between the parties. Accordingly, I do not think that the withdrawing of all other claims could possibly have been intended to indicate that the property issues were withdrawn. I also note that Ms. Thompson’s acknowledgment of Mr. Hickson’s claim was signed on February 4, 2014, the date of the consent order. It would make no sense for her, on the same day, to both acknowledge Mr. Hickson’s claim and to agree that all claims were withdrawn. This ground of appeal must be dismissed.

Appellant’s Issue 7

[30] In relation to the appellant’s argument that Mr. Hickson’s claim is statute barred, I disagree. As a preliminary matter, I note that this issue was not advanced before the Deputy Judge and thus there is no analysis of it in his Reasons for Judgment.

[31] Limitation periods are governed by the discovery principle. This principle says that a limitation period only commences to run after a plaintiff has knowledge (or the means of acquiring knowledge) of the existence of the material facts that would support a claim for relief.

[32] While Ms. Thompson points out that Mr. Hickson moved out in May, 2009, I do not think it fair to say that he knew at that time that his items of personal property would not be returned. Indeed, it appears that the parties continued to discuss and negotiate about the property at least until the non-property issues were resolved in the Ontario Court of Justice on February 4, 2014. Even at that point, it appears that Ms. Thompson was prepared to have Mr. Hickson retrieve his personal property from her property. It is only at some point after this that Mr. Hickson would have known that he was not going to be able to simply retrieve his property. His claim fell within the limitation period.

ii) The Proposed Fresh

[33] Given my decision to order a new trial in this matter, I need not, strictly speaking, address the proposed fresh evidence. However, I will do so briefly as it is my view that the appeal should be allowed on the basis of the proposed fresh evidence as well.

[34] As I understand that appellant’s position, she acknowledges that she was poorly prepared for trial and did not present the evidence that she ought to have in order to advance her position as to the value of Mr. Hickson’s property. She offers, by way of explanation and fresh evidence, medical documents that indicate that she required liver surgery in October 2014. She was in hospital from October 10, 2014 until November 8, 2014. At that time, it was anticipated that she would be able to return to work on January 19, 2015. In an affidavit filed as proposed fresh evidence, she explains that she had home care until April 2015 and that she was not in physical shape to negotiate her property or to conduct a physical inventory of the personal property in advance of the April 1, 2015 trial. As a result, she says that she was unable to properly prepare the evidence needed to dispute Mr. Hickson’s valuations at trial.

[35] In addition, Ms. Thompson wishes to file, as fresh evidence, an Appraisal Report dated November 19, 2015. This report indicates that the appraiser inspected the assets identified/photographed for the purpose of conducting a fair market appraisal. The fair market value of the items is assessed at $2,768.00.

[36] Ms. Thompson also seeks to tender affidavits of two other witnesses, Chris Watt and John Weekes, who offer evidence about Mr. Hickson’s property. I do not think that any of this evidence has the potential to affect the outcome of the case and so decline to admit it.

[37] Mr. Hickson resists the admission of the Appraisal Report on the basis that Ms. Thompson could, with diligence, have provided the information in it to the Deputy Judge at trial. He says that there is no evidence that she even tried to have the items appraised and that she should not be given a second opportunity to present what should have been presented at trial.

[38] I am satisfied that the Appraisal Report proffered by Ms. Thompson is relevant to a decisive issue (the value of Mr. Hickson’s property) and is reasonably capable of belief. If believed, it could be expected to have affected the result. The document challenges Mr. Hickson’s evidence about the value of his property and directly challenges his assertion that the value of his property in Ms. Thompson’s possession is worth $26,000.00.

[39] The more difficult issue is whether to dismiss this fresh evidence application on the basis of a failure of Ms. Thompson to meet the due diligence test.

[40] The most important aspects of the fresh evidence are Ms. Thompson’s explanation for not providing an appraisal she had at trial, and the Appraisal Report itself. I am persuaded that her explanations for not providing this information to the Deputy Judge are compelling. She was recovering from what appears to have been major surgery, she claims to have been physically unable to conduct an appropriate inventory, and, because she was not working and had not sorted out her disability claims, she lacked the financial resources to have a proper appraisal done. In addition, she says that her brain was very “foggy” at the time and that she has ongoing neurological issues.

[41] Theoretically, I accept that the proposed fresh evidence could have been adduced with diligence. No doubt it would have been had Ms. Thompson had counsel. But in my view the due diligence prong of the test for the admissibility of fresh evidence should not be a bar to its admission in the unique circumstances of this case.

[42] In my view, this is not a situation of Ms. Thomson sitting back, choosing not to adduce relevant evidence and then, on appeal, trying to have a second chance to do that which she chose not to do the first time. Rather, I see this as Ms. Thompson being unrepresented at trial and doing her best. However, she was limited by physical, mental and financial impediments and so was unable, despite her attempted diligence, to proffer the proposed fresh evidence.

[43] Given the compelling nature of Ms. Thompson’s Appraisal Report, and the reasonable and compelling explanations as to why this fresh evidence was not adduced at trial, I am persuaded that the fresh evidence should be admitted and a new trial ordered.

E. Costs

[44] At the conclusion of the oral argument, both parties submitted Bills of Costs. As Ms. Thompson was the successful party, she should receive costs of the appeal.

[45] Ms. Thompson’s bill of costs is for $2,809.12. This includes $1,200.00 in fees to counsel (who assisted with her written material but did not appear before me). She has also included costs of the Appraisal Report and other disbursements.

[46] Before making a costs award, I am prepared to accept any written submissions that the parties wish to make. Ms. Thompson shall have twenty-one days from the release of this judgment to make any further written submissions as to costs. She shall have not more than three pages in which to do so. Counsel for Mr. Hickson shall have fourteen days after receiving Ms. Thompson’s submissions to make any written submissions as to costs. His submissions may not exceed three pages. There will be no reply.

E. Conclusion

[47] The appeal is allowed, the order of the Deputy Judge set aside and a new trial is ordered.

Woollcombe J.

Date: December 17, 2015

CITATION: Hickson v. Thompson, 2015 ONSC 7946

COURT FILE NO.: DC-15-53-00

DATE: 2015 12 17

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

WOOLLCOMBE J.

BETWEEN:

David Roy Hickson Plaintiff (Respondent)

– and –

Victoria Thompson Defendant (Appellant)

endorsement

Released: December 17, 2015

Hickson v. Thompson, 2015 ONSC 7946

Case Summary

A. Overview

B. The Positions of the Parties

C. The Relevant Legal Principles

D. Analysis

i) Grounds of Appeal Relating to the Analysis of the Deputy Judge

ii) The Proposed Fresh

E. Costs

E. Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Legal Tests 2

Legislation 1