Baradaran v. Nasseri, 2016 ONSC 1568

CITATION: Baradaran v. Nasseri, 2016 ONSC 1568

DIVISIONAL COURT FILE NO.: 580/15 DATE: 20160303

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

MANOUCHER BARADARAN

Appellant/Plaintiff

– and –

AMIR ALI NASSERI

Respondent/Defendant

In Person

Shadi Nasseri, for the Respondent/Defendant

HEARD at Toronto: March 3, 2016

C. HORKINS J. (ORALLY)

1The appellant, Manoucher Baradaran appeals the final order of the Small Claims Court dated October 8, 2015. His notice of appeal states that this was the order of McNeely J. This is not correct. Shapiro J. issued this order.

2The appellant’s submissions on this appeal focused on the series of orders that were made by the Small Claims Court in 2015. The appellant cannot seek an appeal of earlier orders. His notice of appeal addresses the October 8, 2015 order.

3It seems that his approach on this appeal is to lump all of the 2015 Small Claims Court orders together as one and argue that his appeal today should be allowed. However, pursuant to Rule 61.04(1) a party has 30 days to file an appeal of a final Small Claims Court order. As is apparent, the notice of appeal in question was filed well beyond the 30 days after the April 16 Small Claims Court order, that actually dismissed Mr. Baradaran’s Small Claims Court action.

4I will start with some background facts.

5The appellant bought a new home in Toronto in October 2007. He complained about defects in this home that led to extensive litigation between him and Tarion Warranty Corporation and other defendants including the defendant builder and Amir Ali Nasseri who is the respondent on today’s appeal.

6This action in Small Claims Court was issued in 2008. It appears that the Small Claims Court claim sat formant while Mr. Baradaran pursued Tarion and others, both before the Licence Appeal Tribunal and in an action in the Superior Court of Ontario. The Superior Court of Ontario action resulted in a decision of McEwen J. that was appealed to the Ontario Court of Appeal. Decisions were made during the various tribunal and court proceedings regarding Mr. Baradaran’s deficiency claims.

7When the Ontario Court of Appeal released its August 19, 2014 decision (2014 ONCA 597) the Court made the following statement about the status of the appellant’s outstanding litigation at para. 46:

The only outstanding proceeding between the appellant and the respondents in the court system (apart from the dormant Small Claims Court action) is the one Superior Court action that the appellant will be permitted to continue.

8It was this dormant Small Claims Court action that appears to have been revived in 2015. In 2015, this Small Claims Court action that had been sitting dormant for years was activated. The parties attended before Deputy Judge McNeely on March 9, 2015. A typed copy of her order reveals what happened on March 9. In essence, Mr. Baradaran alleged that there were four remaining deficiencies that the previous tribunal and court proceedings had not resolved. He wished to proceed with his Small Claims Court claim to address his claim for damages arising from the four deficiencies and was intending to do so solely against Amir Ali Nasseri.

9In Court today, Mr. Baradaran states that the judge incorrectly recorded that there were only four outstanding complaints about deficiencies. He says that there were more. However, the judge clearly states that it was Mr. Baradaran who told the Court that he had four remaining outstanding deficiency claims to be dealt with by the Small Claims Court. I pause to note that Mr. Baradaran perfected this appeal without filing any of the transcripts of the various proceedings in the Small Claims Court. As a result there is no record to support his position that the judge was incorrect in recording that only four deficiency claims remained. Absent a record, there is no basis for assuming that the judge made a mistake.

10Mr. Nasseri disputed Mr. Baradaran’s claim that there were still four outstanding deficiency claims to be dealt with in the Small Claims Court claim. He argued that all of these four items had been previously dealt with and resolved one way or another in the other proceedings. Deputy Judge McNeely ordered Mr. Nasseri to produce all documentation that he intended to rely on in support of his position that the Small Claims Court action should be struck.

11A deadline of March 31 was set for production of these documents. The Deputy Judge set April 16, 2015 for a hearing to decide the defendant’s position and that the Small Claims Court claim should be dismissed.

12The parties were given a copy of the judge’s order and shortly thereafter they were also given a typed version of the judge’s decision as well.

13Mr. Nasseri complied with the order. He produced documentation and this documentation referred to the upcoming April 16 hearing date. On April 16, Mr. Baradaran did not attend Court. The judge delayed the hearing for more than an hour and a half but Mr. Baradaran did not appear. As a result, on April 16, Deputy Judge McNeely went ahead with the hearing in his absence and determined the issues before her. The judge found that the four alleged deficiency items that Mr. Baradaran was pursuing in the Small Claims Court claim had been decided and/or resolved in the previous proceedings. As a result, the Deputy Judge dismissed Mr. Baradaran’s Small Claims Court claim.

14Today, during the hearing of the appeal in this Court, Mr. Baradaran focused his attention on the April 16, 2015 dismissal of his claim. However, as I state again, he did not appeal this order to the Divisional Court. The notice of appeal that he did serve was well beyond the thirty day time limit for appealing the April 16 final order of the Small Claims Court.

15When Mr. Baradaran learned that Deputy Judge McNeely had dismissed his claim, he filed a motion in Small Claims Court on May 11, 2015 to dismiss Deputy Judge McNeely’s April 16 order. This motion was scheduled for June 8 but was moved to September 17. On September 17, Mr. Baradaran’s motion was heard by Deputy Judge McNeely and she dismissed his motion.

16The affidavit that Mr. Baradaran filed offered minimal evidence. He said in the affidavit that he “unwillingly” missed Court on April 16 because he didn’t have “a page of the previous court.”

17Mr. Baradaran was in Court when Deputy Judge McNeely set the April 16 date. Her order refers to the April 16 date and as well he received the typed transcription, also clearly identifying the April 16 date and the purpose for that hearing. He was then served with the defendant’s material which also referred to the April 16 date. As a result, Deputy Judge McNeely dismissed Mr. Baradaran’s motion. She explained to him that his Small Claims Court action was not dismissed because he abandoned it, but rather, it was dismissed based on the evidence that showed that the four alleged deficiency claims had already been dealt with in the other proceedings.

18On October 8, Mr. Baradaran brought another motion in the Small Claims Court seeking to set aside Deputy Judge McNeely’s April 16 order. On this occasion, the motion was heard by Deputy Judge Shapiro. This judge dismissed the motion to set aside the April 16 order. The judge notes that Mr. Baradaran was out of time to seek relief. He ordered costs against Mr. Baradaran and also ordered that Mr. Baradaran could not bring any further motions in the Small Claims Court matter without the Court’s approval.

19In his notice of appeal, Mr. Baradaran raises various grounds of appeal which can be characterized as follows. He states that he was deprived of a fair hearing without bias. He states that the judge had a duty to consider his documentation and failed to do so and he states the judge erred in failing to order a trial of his claim.

20The standard of review on matters of law is correctness and on questions of fact, palpable and overriding error.

21As I stated at the outset, this is an appeal of the October 8, 2015 order. Such an appeal does not reach back and encompass all of the 2015 Small Claims Court orders and in particular the April 16 order of Deputy Judge McNeely that dismissed Mr. Baradaran’s Small Claims Court claim. Nevertheless, the record does not reveal any error of law or any palpable or overriding error of fact, at any point in the above Small Claims Court orders. There is simply no evidence of bias or failure to provide Mr. Baradaran with a fair hearing and an opportunity to produce his documents to the Court.

22Based on the record that Mr. Baradaran has filed on this appeal, it is clear that he was given notice of the April 16 motion and the purpose of that motion. This is set out in Deputy Judge McNeely’s decision of March 9 (both handwritten and typed copies).

23Mr. Baradaran tried unsuccessfully to set aside the April 16 decision. The Small Claims Court heard and dismissed his motions on September 17 and October 8, 2015.

24Furthermore, on the September 17 and October 8 motions, he filed no evidence to show that his four claims had not been previously resolved and/or determined in the other proceedings.

25Whether the Court looks solely at the October 8 order and/or the orders dated March 9, April 16 and September 17, it is abundantly clear that there is no basis for allowing this appeal.

26As a result, the appeal is dismissed.

COSTS

27The parties exchanged cost outlines at the end of the hearing. The amounts they seek are similar. The respondent seeks costs of $6,921.55. The appellant’s cost outline is $6,113.30. The respondent was successful on this appeal and is entitled to costs. However, costs must be fair and reasonable in the circumstances. Accordingly, I fix the respondent’s costs at $2,500 all inclusive. In my view, this is a fair and reasonable amount.

28I have endorsed the back of the Motion Record, “For reasons delivered orally today, the appeal of Manoucher Baradaran is dismissed. The appellant shall pay the respondent`s costs fixed at $2,500 all inclusive.”

___________________________ C. HORKINS J.