Court File and Parties

Citation: Goodman v. Florin, 2016 ONSC 6262 Court File No.: 274/16 Date: 2016-10-07 Superior Court of Justice - Ontario Divisional Court

Re: Federick Barry Goodman, Applicant And: Patrick Florin, Respondent

Before: L.A. Pattillo J.

Counsel: Self-represented, for the Applicant Self-represented, for the Respondent

Heard at Toronto: October 5, 2016

Endorsement

L.A. PATTILLO J. (Orally)

[1] Mr. Goodman’s motion to set aside the Registrar’s order of August 9, 2016 dismissing his judicial review application for delay and awarding costs against him of $750.00 was fixed for today.

[2] Last week, Mr. Goodman sought to adjourn it. Mr. Florin did not agree. I advised the parties through the court office that they should appear today to deal with the matter.

[3] Mr. Goodman filed this motion record on October 3, 2016. Notwithstanding the enclosed notice of motion says returnable on November 8, 2016, Mr. Florin never agreed to that date. Mr. Goodman’s motion was argued fully before me today on this motion record.

[4] The parties’ small claims court trial was scheduled for June 16, 2016 having already been adjourned from March 31, 2016 at Mr. Goodman’s request.

[5] On June 2, 2016, Mr. Goodman brought a motion to amend his defence and file a defendant’s claim and to adjourn the trial. The deputy judge (the “Motion Judge”) allowed Mr. Goodman to amend his defence and file a defendant’s claim; gave him five days to do so and refused to postpone the trial given the delay which had already transpired.

[6] The Motion Judge further ordered Mr. Goodman to pay costs of $850.00 to Mr. Florin by June 7, 2016. On June 7, 2016, Mr. Goodman commenced the application for judicial review of the motion judge’s decision (the “Application”).

[7] As a result of the Application, the June 16, 2016 trial date was adjourned pending its outcome. Mr. Goodman has paid the $850.00 cost amount into court pursuant to a subsequent order of the Small Claims Court.

[8] Finally, on August 9, 2016, on motion made by Mr. Florin., the Registrar dismissed the Application for failure to comply with r. 68.04(1)(b), not perfecting within 30 days. The Registrar also noted that no proof of ordering transcripts had been filed. The Registrar ordered costs of $750.00 as against Mr. Goodman.

[9] Mr. Goodman submits that the Registrar erred in dismissing the Application based on r. 68.04(1)(b). He submits that a record is necessary (transcripts) and that he had ordered them and had received them a few days prior to August 9, 2016. Accordingly, pursuant to r. 68.04(1)(a) he still had time to perfect. Mr. Goodman’s Application dealt with an interlocutory proceeding in Small Claims Court. No record was required. Nor had he filed proof ordering the transcripts at the time of the motion before the Registrar. In my view, the Registrar was correct in dismissing the Application.

[10] Even if I’m wrong in that conclusion, I would not allow the motion given that there is no merit in the Application. Mr. Goodman agrees the proceeding before the Motion Judge was interlocutory. While there is no appeal from an interlocutory order of the Small Claims Court, judicial review is available but only in respect of the narrow issue of jurisdiction: Peck v. Residential Property Management Inc., 2009 38504 (ON SCDC), [2009] O.J. No. 3064 (Div. Ct.).

[11] The notice of Application sets out in the grounds, issues concerning findings of the Motion Judge concerning Mr. Goodman’s conduct, the short period provided to deliver the amended defence and defence claim, the failure to adjourn the June 16th trial date and a misapprehension of the plaintiff’s claim. All of those matters are clearly within the jurisdiction of the Motion Judge to say and do. Mr. Goodman also submits the Motion Judge had no jurisdiction to order costs in the amount he did. Given the Motion Judge’s findings, as noted in his endorsement concerning Mr. Goodman’s behavior, I am satisfied he clearly had jurisdiction to make the cost order he did, either under Small Claims Court r. 15.07 or r. 19.06.

[12] Accordingly, Mr. Goodman’s motion is dismissed.

[13] Mr. Goodman has not filed his amended defence or defence claim either by June 7, 2016 as ordered by the Motion Judge or by today.

[14] Mr. Florin advises that this matter is scheduled to proceed in Small Claims Court on October 7, 2016. It should proceed. It has been delayed long enough.

[15] Mr. Florin is entitled to receive the $850.00 costs ordered by the Motion Judge which Mr. Goodman has paid into court. As that was done by order of the Small Claims Court, that court should make the order for payment out.

[16] Mr. Florin is entitled to costs of this proceeding. He is entitled to his out of pocket and his costs in consulting a lawyer concerning his matter. Based on the costs submitted, costs fixed at $1,200.00 payable by Mr. Goodman forthwith.

L.A. PATTILLO J.

Date Given: October 5, 2016

Date of Release: October 7, 2016