Harbinger Network Inc. v. Robert Webster Co. Ltd., 2016 ONSC 487
CITATION: Harbinger Network Inc. v. Robert Webster Co. Ltd., 2016 ONSC 487
DIVISIONAL COURT FILE NO.: 244/15
DATE: 20160119
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, STEWART AND PATTILLO JJ.
BETWEEN:
HARBINGER NETWORK INC. Applicant
– and –
THE ROBERT WEBSTER CO. LIMITED Respondent
Ben Hahn, for the Applicant George F. James, for the Respondent
HEARD at Toronto: January 19, 2016
ORAL REASONS FOR JUDGMENT
SACHS J. (ORALLY)
[1] This is an application for judicial review of the interlocutory order dated June 9, 2015 of Small Claims Court Deputy Judge Richardson, in which he set aside a default judgment against the respondent on terms. The basis for this judicial review is an alleged breach of procedural fairness. The breaches alleged are the failure of the Deputy Judge to allow the applicant’s counsel to make the oral submissions he wished to make and the alleged failure of the Deputy Judge to deliver adequate reasons for his decision.
[2] There is no issue that the applicant was served with notice of the motion and the materials being relied upon in support of that motion. Thus, the applicant had notice of the case it had to meet. There is also no issue that the applicant filed its own materials in response. Thus, the applicant had an opportunity to respond to the case it had to meet. Finally, there is no issue that both parties attended at the hearing and that at that hearing the Deputy Judge indicated that he had reviewed all of the material filed by the parties.
[3] In the face of these realities, the fact that the Deputy Judge may not have seen it as necessary to hear oral submissions on some of the matters in issue does not constitute a breach of procedural fairness that would justify this Court’s intervention by way of judicial review.
[4] In this regard we note that there is a conflict between the parties on this issue and no transcript of the hearing is available. We also note that there is no suggestion that in his oral submissions the applicant’s counsel was seeking to introduce any new material.
[5] With respect to the argument about inadequate reasons, in Newfoundland and Labrador Nurses’ v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 14, the Supreme Court of Canada made it clear that the inadequacy of reasons does not result in a breach of the duty of procedural fairness. The adequacy of reasons is considered as part of a substantive review of the decision.
[6] The applicant asserts before us that if the Deputy Judge had listened to its counsel’s oral submissions he would not have made the decision he did. This argument is an attack on the merits of the decision, which, in turn reinforces our view that the applicant is bringing an application for judicial review that is in essence a disguised appeal. There is no right to appeal from an interlocutory order of a Small Claims Court Judge.
[7] For these reasons, the application for judicial review is dismissed.
COSTS
[8] I have endorsed the back of the Application Record, “This application is dismissed for reasons given orally by Sachs J. The respondent is entitled to its costs of this application, which we fix in the amount of $2,500.00, all inclusive.”
SACHS J.
STEWART J.
PATTILLO J.
Date of Reasons for Judgment: January 19, 2016
Date of Release: January 25, 2016
CITATION: Harbinger Network Inc. v. Robert Webster Co. Ltd., 2016 ONSC 487
DIVISIONAL COURT FILE NO.: 244/15
DATE: 20160119
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, STEWART AND PATTILLO JJ.
BETWEEN:
HARBINGER NETWORK INC. Applicant
– and –
THE ROBERT WEBSTER CO. LIMITED Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: January 19, 2016
Date of Release: January 25, 2016