CITATION: Igder v. Heydarzad, 2016 ONSC 3478

DIVISIONAL COURT FILE NO.: 456/15

DATE: 20160526

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

B E T W E E N :

SARA IGDER

Plaintiff/Respondent

– and –

AMIR HEYDARZAD

Defendant/Appellant

Sara Igder in person

Elena Mazinani for the Defendant/Appellant

HEARD at Toronto: April 25, 2016

THEN J.:

[1] The appellant appeals from the order of Deputy Judge Kay after a trial in Small Claims Court awarding the plaintiff Ms. Sara Igder $24,700 on account of debts alleged to have been incurred by the respondent Amid Heydarzard as a result of certain monetary advances made by her.

the facts

[2] The facts surrounding the interaction between the appellant and the respondent giving rise to the loans found by the trial judge to have been advanced by the respondent to the appellant are, to say the least, somewhat unusual.

[3] According to the respondent, when she moved to Toronto in 2011, she responded to an advertisement in a Persian publication in which the appellant sought to rent out his room. She met with the appellant in December 2011 and on January 9, 2012 she advanced $11,000 to the appellant who had indicated to her that he had no money and that he wished to visit his sickly father in Iran. She did not obtain a promissory note nor is there any other evidence of the transaction except exhibit 1 showing that $11,000 was withdrawn from her bank account. She testified that she advanced the $11,000 in order to help the appellant who was a person in need because of her religious and cultural beliefs.

[4] According to the respondent, the appellant agreed to rent the room for $600 per month and that originally it was agreed that this amount would be deducted from the $11,000.

[5] The parties agreed that Mr. Moslemin, a friend of the appellants, would give the respondent the key to the apartment and the respondent moved in on January 29, 2012.

[6] The appellant sought to tender the evidence of Mr. Moslemin with respect to the circumstances of the tenancy agreement. The trial judge refused to permit this evidence to be adduced because he was not satisfied that proper notice had been given to the respondent.

[7] According to the respondent the appellant arrived back in Canada on March 1, 2012 and asked the respondent to pay him $600 per month rent notwithstanding the $11,000 loan because he had lost his job in Toronto and was experiencing financial difficulties. The respondent agreed to do so. The appellant did not require her to deposit first and last months’ rent.

[8] The appellant moved to Ottawa on March 2. During his stay in Ottawa, according to the respondent, she advanced $2,500 to the appellant for school fees pursuant to his request, and she also gave the defendant $800 in cash which she withdrew from a CIBC ATM (Exhibit 5). In June 2012 she advanced $5,0000 to the appellant for car repairs pursuant to his request. Finally, she testified that in June 2012 she paid the appellant’s MasterCard bill totaling $801.14 representing a security deposit for the rental of the appellant’s room which she maintained was not returned to her.

[9] The appellant returned to the apartment in September 2012 and resided in the living room while she occupied the bedroom.

[10] During the period from September 2012 to March 31, 2013, when she was evicted from the apartment she advanced $900 in cash to the appellant on September 2012, $2,400 in cash on October 3, 2012, $1,300 on October 15, 2012, and paid a $110 internet bill on behalf of the appellant on January 2, 2013.

[11] The appellant denied that he received a loan for $11,000 and asserted that there were no receipts or promissory notes to support any of the loans allegedly given by the respondent to the appellant.

[12] The appellant testified that the parties did not agree at the initial meeting in December 2011 to the terms with respect to the rental of the room because the respondent was interested in a long term rental whereas the appellant sought a short term rental. When the appellant left for Iran on January 24, 2012, he left the key with his friend Mr. Moslemin. According to the appellant, he received numerous phone calls while in Iran and asked Mr. Moslemin to ascertain the source of the calls. Mr. Moslemin informed him that the respondent was now in agreement with the terms of the rental but could not provide first and last month’s rent. The appellant nevertheless agreed to rent the room to the respondent as it had been vacant since December 2011 and directed Mr. Moslemin to provide the key to the respondent who took possession on February 28, 2012. The appellant told Mr. Moslemin that he would sort out the rental details upon his arrival in Canada on March 1, 2012.

[13] With respect to the $2,500 allegedly advanced by the respondent for school fees in May 2012, the appellant produced a bank statement demonstrating that his school fees in the amount of $867 had been paid from his account on April 2, 2012, prior to the alleged loan from the respondent for school fees.

[14] With respect to the $5,000 allegedly advanced by the respondent for car repairs in June 2012 the respondent adduced evidence that his car was new and under warranty. He produced a receipt for $925.18 from Sisley Honda for car repairs undertaken in July 2012 of which $400 was subsequently deducted as the car was under warranty.

[15] The appellant testified that while the respondent did pay for the MasterCard bill of $801.14 in August 2012, that payment constituted a security deposit by the respondent with respect to the rental which the appellant subsequently repaid. The respondent testified that the appellant did not repay this amount.

[16] The appellant testified that he asked the respondent on several occasions to move out of the room as she was late paying the rent and that he was staying at his girlfriend’s place and needed the room. Although she promised to do so, she did not move out until he summoned the police to help him remove her in late March 2013. He testified that he went to the police station and explained the “situation”, that is, he told the police he rented the room to her for a short period and that she would not move out. The police accompanied him to his apartment and asked her to leave and she complied that day. In reply, the respondent testified that he had told the police that she was a guest prior to the police asking her to leave.

[17] The trial judge admitted into evidence (Exhibit 7) which is a text message in the Farsi language translated by the respondent which contained the appellant’s account number (5108774) and the RBC branch (number 06762) in connection with the $110 internet bill paid by the respondent on January 2, 2013. The trial judge also admitted into evidence (Exhibit 8 which is a text message in the Farsi language, translated by the respondent, giving the appellant notice that she required repayment with respect to the money loaned to him by the respondent to which he replied “O.K.”.

the reasons of the trial judge

[18] The trial judge acknowledged that there was no evidence by way of receipts or promissory notes to support the claims of the respondent that the alleged loans to the appellant were made. Exhibits 1-6 show only that monies were withdrawn more or less proximate to when the alleged loans were made. In the circumstances, the issue for determination according to the trial judge was the credibility of the parties.

[19] In making his findings of credibility against the appellant the trial judge relied heavily upon the fact that the appellant lied to the police with respect to the circumstances of the respondent’s eviction from the rented room. In his evidence at trial the appellant testified he secured the help of the police by telling them that he respondent was a tenant who had agreed to a short rental but had substantially overstayed. However, the respondent testified that the respondent had told the police that she was a guest and whereupon she was told by the police to leave immediately. The trial judge accepted the evidence of the respondent on the basis that it was inconceivable that any police officer would facilitate the eviction of a tenant in view of the Residential Tenancy Procedures that are in place. He concluded that the appellant lied to the police and it follows that he gave false evidence at trial.

[20] The trial judge conceded that it was highly unusual for anyone to give $11,000 to a total stranger two weeks after meeting him. He concluded that while the respondent was naïve and careless he accepted that she was a hardworking person and that she acted in accordance with her core values, i.e., her religious and cultural beliefs in helping those in need in advancing the various loans to the respondent. The trial judge accordingly found as a fact that she advanced all of the loans requested by the appellant.

[21] Accordingly, the trial judge found no evidentiary value in the evidence of the appellant that he had no need for funds for school as he paid for his course out of his own funds nor in the evidence of the appellant that he paid for his own car repairs with respect to a vehicle under warranty as he found her evidence that his request for money for school and car repair had been made credible and his denial incredible.

[22] The trial judge further found the evidence of the appellant with regard to the respondent’s payment of the MasterCard bill not credible as there is no requirement of a security deposit in a residential landlord and tenant relationship nor was any evidence adduced that this “security deposit” had been repaid as the appellant claimed.

[23] Finally, the trial judge found that the appellant did not waive the first and last month rent deposit out of largesse but because he was in debt to the respondent for the $11,000 loan.

issues

[24] The appellant submits that in order to succeed on appeal he must demonstrate “palpable and overriding error’ as required by the Supreme Court in Housen v. Nicolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paragraphs 1,5 in order to overcome the adverse findings of fact made by the trial judge.

[25] The appellant submits that the trial judge committed palpable and overriding errors demonstrating a lack of impartiality in the general areas:

(i) By refusing to hear evidence from the appellate witnesses who had material knowledge of the matters central to the action;

(ii) By permitting documentary evidence to be adduced at trial not in the English language and not properly translated in contravention of the s.125(2)(b) of the Courts of Justice Act and relying upon those documents in the reasons for judgment;

(iii) By continuously interrupting the appellant’s representative during his examination, cross-examination and submissions and thereby descending into the arena.

analysis

[26] In my view the trial judge did not commit any palpable or overriding error in any of the three areas referred to by the appellant.

(i) Refusal to Hear Defence Witnesses

[27] At the commencement of the trial the appellant’s representative sought to obtain a ruling from the deputy judge with regard to the tendering of two witnesses. The first was Mr. Moslemin who had spoken both to the appellant and the respondent with respect to the rental of the premises and who, at the appellant’s direction, had given the respondent the keys to the premises. The second was Mr. Azad who was the appellant’s roommate and who was apparently prepared to testify whether any loan was discussed in his presence.

[28] The respondent objected on the basis that she had not been served with the witness list and had not been given appropriate notice.

[29] The trial judge examined the court file which contained the names of the proffered witnesses on the witness list but no affidavit of service.

[30] The appellant’s representative indicated that he could obtain the affidavit of service later in the trial. However, he did not specifically request an adjournment. Rather, he agreed that he was prepared to proceed without calling the witnesses, but did request that the trial judge order them to remain during the trial.

[31] No affidavit of service has been filed on the appeal nor any affidavit of what evidence the witness would give had they been permitted to testify.

[32] In my view, the trial judge did not commit palpable or overriding error in refusing to permit the proffered witnesses to testify.

[33] On the one hand, given that that court file contained the list of witness it was available for the trial judge to conclude that since that document had been filed with the court in the ordinary course, it would not have been accepted by the court clerk absent proof of service as the Small Claims rules require. Moreover, as the respondent was self-represented at trial, service could have been made on her former lawyer without the knowledge of the respondent.

[34] In any event, an appropriate exercise of judicial discretion by the trial judge could have been to wait until the commencement of the defence case to rule with respect to the tendering of the defence witnesses given the offer of the appellant’s representative to produce the affidavit of service.

[35] On the other hand, the appellant’s representative did not specifically request that the ruling be held in abeyance nor did he request an adjournment. Rather, he indicated that he was prepared to proceed in the absence of the witnesses. It is difficult to see how in these circumstances the refusal of the trial judge to hear the witnesses caused any prejudice to the appellant. I am confirmed in this belief not only by the waiver of the appellant’s representative at trial but also by the failure on appeal to produce the relevant affidavit of service and also by the failure to produce in affidavit form the evidence that the proffered witnesses would have given at trial. In the absence of such affidavits I do not share the opinion of counsel at trial that the witnesses would have given evidence material to the issues at trial much less evidence that would have been dispositive of those issues. From the record before me the evidence that Mr. Moslemin would have given was simply a reiteration of the conversations pertaining to the tenancy agreement between the appellant and the witness and the witness and the respondent all of which was permitted by the trial judge to be adduced by the appellant in his evidence.

[36] With respect to the evidence of Mr. Azad there was no attempt to assert that he would have heard every conversation between the appellant and the respondent in which the alleged loan of $11,000 would have been discussed nor did counsel press the admissibility of this evidence at trial or on appeal. In my view no palpable or overriding error occurred that could have caused a miscarriage of justice in refusing to allow the witnesses to testify.

(ii) Admission of Evidence in Contravention of s.125(2)(b) of the Courts of Justice Act

[37] Section 125(2)(b) of the Courts of Justice Act requires that:

(b) documents filed in courts shall be in the English language or shall be accompanied by a translation of the document into the English language certified by affidavit of the translator. R.S.O. 1990, c. C.43, s. 125.

[38] The appellant submits that the trial judge erred in law by allowing the texts sent in the Farsi language to be entered with evidence as Exhibits 7 and 8 and further by relying on these texts in his reasons for judgment in light of the appellant’s objection to the accuracy of the translation provided by the respondent.

[39] I agree with the appellant that the texts should not have been admitted into evidence in contravention of s.125(2)(b) of the Courts of Justice Act. The real issue is whether the trial judge committed a palpable or overriding error for the reasons advanced by the appellant or whether the error was relatively harmless.

[40] In the reasons for judgment the trial judge referred to Exhibits 7 and 8 as follows:

The plaintiff further testified that at the defendant's request, she put money, in the sum of $110 on January 2nd, '13, into the defendant's account. Exhibit 7 is a text message in Farsi between the plaintiff and the defendant; however, it does show in English as sent by the defendant and account number 5108774, branch number 06762, RBC Bank. The translation as to the plaintiff's text words from Farsi to English was disputed by the defendant; however, he did not dispute that this was his account number and branch number at RBC.

The plaintiff further presented Exhibit 8, which is a text message from her to the defendant, in which she asks the defendant or indeed lets the defendant know that she needed the money in words to the effect that she responded to him or stated to him, as he had allegedly said to her, for her to let him know when indeed she needed repayment of her loans. She stated that this text message in Exhibit 8 talks about this and there is a response from the defendant which says “Okay". There was some dispute as to whether the words of the plaintiff in the text message in Farsi referred to a house or a home or a room, but there is no mistake as to the intent of the words.

[41] However, I disagree with the appellant that the trial judge relied in any significant way upon Exhibit 7 and Exhibit 8 in assessing the relative credibility of the parties and thereby in finding in favour of the claims of the respondent.

[42] In his reasons for judgment the trial judge stated the following:

The only evidence that the plaintiff has to support her claim can be found in Exhibits ,1 to 9. There are admittedly, no receipts from the defendant to the plaintiff. So what we have here is a matter of credibility. Both sides can't be right. One has to be telling the truth and one has to be telling falsehoods. You can't both be right and it falls to me to decide which person is telling the truth. So, I will now bring your attention to a few facts, which I think are fairly salient and which will help explain my decision.

[43] In reviewing the “salient” facts resolving the pivotal credibility issue in favour of the respondent the trial judge did not refer at all to Exhibit 8 and made only passing reference to the fact that the respondent knew the appellant’s R.B.C. bank account presumably from the numbers contained in Exhibit 7. I pause to observe that this fact could have been deduced simply through the testimony of the respondent as to the significance of the numbers contained in Exhibit 7 rather than by tendering the document as an exhibit in the trial along with the respondent’s translation of the Farsi content of the text.

[44] It is clear when the trial judge’s reasons for judgment are viewed as a whole that the substantial basis for the trial judge’s finding of credibility against the appellant does not depend on the admissibility of Exhibits 7 and 8 but rather on the trial judge’s finding that the appellant lied to the police to secure their assistance to evict the respondent by telling them that she was a guest and not a tenant. It follows that he also lied to the court when he testified that he told the court that he told the police she was a tenant and that the police evicted her on that basis. The trial judge found that it was inconceivable that the police would act on that basis in view of the existence of the legal process under the Residential Tenancies legislation.

[45] In addition, the trial judge found as a fact that the appellant would not have rented the room to a stranger who could not advance the first and last months’ rent unless he was already indebted to the plaintiff for $11,000. It was open on the evidence to make this finding.

[46] The trial judge also found it to be incredible that the appellant would not demand the first and last months’ rent but later on to seek to justify the payment of the MasterCard invoice in the amount of $801 by the respondent as constituting a security deposit for rent when the Residential Tenancies Act does not permit security deposits. It was open on the evidence to make this finding.

[47] In his reasons for judgment the trial judge fully appreciated that it was most unusual for anyone to advance approximately $25,000 to a stranger without obtaining receipts or promissory notes. He found her conduct to be naïve and perhaps careless but nevertheless accepted her explanation that she acted based on her religious beliefs and cultural views and that the appellant took advantage of her generosity. The trial judge was in a unique position to assess the honesty and sincerity of that explanation without requiring the respondent to prove the veracity of that explanation as the appellant contends.

[48] Finally, the trial judge took into account the appellant’s submission that he had no need for the funds allegedly advanced by the respondent for either his school fees and for car repair as he paid for both these items out of his own bank account in circumstances where the car was under warranty. Nevertheless, once having found the appellant to be incredible it was open to the trial judge to accept the evidence of the respondent who he found to be credible that a request for funds with respect to those items had been made.

[49] While Exhibits 7 and 8 should not have been admitted into evidence I am satisfied in the circumstances of this case that the trial judge did not commit palpable and overriding error warranting a new trial in doing so. The trial judge was in much better position to assess the relative credibility of the parties than the appellate court and is owed deference in the absence of palpable and overriding error.

(i) The Alleged Interruptions by the Trial Judge during Examination in Chief, Cross-Examination and during Submissions

[50] The appellant submits that the trial judge descended into the arena by examining the appellant and the respondent and by interrupting the examination by the respondent’s representative, the examination of the appellant, the cross-examination of the respondent in particular with respect to her religious and cultural beliefs and the representative’s submissions to the trial judge.

[51] I accept the proposition advanced by Lord Denning in Jones and National Coal Board, [1957] 2 Q.B. 55 (C.A.) where at p.65 he stated:

... cross-examining counsel is at a grave disadvantage is [sic] he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence he has given in chief. Excessive judicial interruption inevitable weakens the effectiveness of cross-examination in relation to both the aspects we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return.

and further at p.66:

[j]ustice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge ...should himself conduct the examination of witnesses, "he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict".

[52] The maintenance of the appropriate balance between contending parties is perhaps most delicate when as in this case one of the parties is self-represented. It is vital that the trial judge avoid the temptation to assume a role akin to that of counsel for the self-represented party. However, this does not mean that the trial judge cannot properly intervene during examination in chief, cross-examination and during submissions to clarify either the evidence or the submissions of the parties in order to achieve a just result. After a careful review of the record I am satisfied that the trial judge did not cross the line between clarification of the evidence and the submissions by participating in the dispute between the parties nor did the trial judge engage in the type of disruptive interruptions properly criticized by Lord Denning in Jones, supra.

[53] The appellant submits that he was particularly prejudiced that the trial judge prevented his representative from continuing his line of questioning with respect to the respondent’s alleged cultural and religious beliefs as those beliefs formed a substantial basis for the trial judge’s reasons for judgment. Upon review of the transcript at pages 40-41 I am unable to discern any merit to this submission as there is no indication that the trial judge prevented the continuation of this line of questioning.

[54] For all these reasons the appeal must be dismissed.

[55] The respondent does not seek costs and none are awarded.

THEN J.

RELEASED: May 26, 2016

CITATION: Igder v. Heydarzad, 2016 ONSC 3478

DIVISIONAL COURT FILE NO.: 456/15

DATE: 20160526

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N :

SARA IGDER

Plaintiff/Respondent

– and –

AMIR HEYDARZAD

Defendant/Appellant

REASONS FOR JUDGMENT

THEN J.

RELEASED: May 26, 2016