CITATION: Gebremariam v. Gebregiorgis, 2017 ONSC 2000
DIVISIONAL COURT FILE NO.: 136/15
DATE: 20170421
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
TADESSE GEBREMARIAM
Appellant
– and –
YEALEMTARIK GEBREGIORGIS
Respondent
Bedawi Tago, for the Appellant
Roger Rowe, for the Respondent
HEARD at Toronto: March 29, 2017
Stewart J.
[1] This is an appeal by Tadesse Gebremariam from the judgment of Deputy Judge R. Kay of the Small Claims Court dated March 2, 2015 which dismissed his claim for alleged unpaid immigration consulting services and ordered him to pay costs to the Respondent Yealemtarik Gebregiorgis in the amount of $1961.00.
[2] Gebregiorgis takes the position that the appeal is without merit and should be dismissed.
Jurisdiction
[3] Pursuant to s. 31 of the Courts of Justice Act, R.S.O. 1990, c.C.43, an appeal from a final order of a judge of the Small Claims Court lies to a single judge of the Divisional Court.
Standard of Review
[4] The standard of review applicable in appeals from an order of a judge is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness, but with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.
Facts
[5] Gebremariam brought an action seeking recovery of what he alleged was payment owing to him by Gebregiorgis for immigration consulting services.
[6] A claim had been filed by Gebremariam, which Gebregiorgis had defended. She denied that all of the services alleged had been provided, and took the position that any payment owing to him had been fully discharged.
[7] The action could not be resolved and proceeded to trial before the trial judge. Gebremariam was represented in court by a paralegal. Gebregiorgis was represented by an articling student.
[8] Gebremariam, as Plaintiff, bore the burden of proving his claim. When presenting his evidence, the only sworn information provided by his counsel was in the form of an affidavit from Tsegai Mengesha, apparently forming part of the evidence in a matter before Citizenship and Immigration Canada. The trial judge admitted the affidavit into evidence over the objection of counsel for Gebregiorgis, but with the observation that any weight to be attached to it remained in issue.
[9] Counsel for Gebremariam was then invited to call additional evidence to prove the claim, but declined to do so.
[10] The following exchange appears on the transcript of the proceeding:
THE COURT: Do you have any other witnesses?
MS. ADKINS: No, Your Honour.
THE COURT: Okay, so this is the sum total of your case?
MS. ADKINS: Yes.
THE COURT: Plaintiff now rests, is that what you’re saying?
MS. ADKINS: Yeah, for the time being, yes.
THE COURT: All right, thank you. I’ll hear from the defence.
MS. RAPP: Okay, the defence will call the defendant to give evidence. She’s going to go to the witness box and give evidence.
[11] Evidence was called on behalf of the defence by way of the testimony of Gebregiorgis. Following examination in chief, Gebegiorgis was cross-examined at some length by counsel for Gebremariam.
[12] The defence had no further witnesses other than Gebregiorgis to call.
[13] At the conclusion of the evidence of Gebregiorgis and the case for the defence, counsel for Gebremariam was asked if she had any reply evidence to call. At that point, she sought to call Gebremariam to the stand to give evidence, purportedly in response to this invitation.
[14] The following exchange then ensued:
THE COURT: Okay and reply, evidence? No? Thank you.
MS. ADKINS: I would like to call Mr. Gebremariam to the witness stand. I want to ….
THE Court: In reply?
MS. ADKINS: It’s not in reply.
THE COURT: It’s not in reply. Well you can’t split your case…
MS. ADKINS: Well I have to ask some questions that could…
THE COURT: But you rested your case. You rested the plaintiff’s case. You closed your case. I asked you do you have any more witnesses, you said no. I asked you do you wish-
MS. ADKINS: Just to give evidence I would- I wanted to call Mr. Gebremariam.
THE COURT: You can call him…
MS. ADKINS: Yeah.
THE COURT: …only in reply to evidence that has been given.
MS. ADKINS: Yes, it’s related to that. I will be referring this time to the bill of costs, just to- we were speaking about it.
[15] When it became evident that Gebremariam proposed to give evidence on his own behalf that was relevant to his claim that ought to have been adduced in his evidence-in-chief, the trial judge ruled that he was attempting to split his case and must restrict himself to calling permissible reply evidence.
[16] The following exchange then ensued:
THE COURT: Now, my instruction to you is to restrict yourself to reply evidence. You must refer to a statement made by the former witness for the defence, by the defendant, and then ask him a question based on that evidence given. That is the only evidence I will allow in reply.
MS. ADKINS: Okay, I agree, Your Honour.
MR. GEBREMAIRAM: Well, I disagree, as the plaintiff I have given an instruction to my legal representative that I am one of the witness [sic] and the affidavit is the other witness but she’s saying she has misunderstand [sic] so if the court is not allowing-it can’t be me as a witness and then- I didn’t give that instruction to my legal representative, I’m going to stop it there and then I will go further to the upper courts.
THE COURT: So you do not wish to give reply evidence?
MR. GEBREMARIAM: First up, I am- I have to give a testimony evidence I am one of the evidence to my plaintiff that’s why I am represented. So, she misunderstand [sic] she brought to the court that there was misunderstanding, she’s a new paralegal she can misunderstand.
THE COURT: Okay, can you provide to me any justification for a plaintiff splitting their case. In other words, giving their evidence in-chief after the defence is finished?
MR. GEBREMARIAM: Well, why do you give to the defendant? Why don’t you ask me? You have to ask first, to her, do you have any other evidence if your client your witness. You have to ask, you never asked that and you never asked it to me you just let them go. Now, I have instructed my paralegal, my legal representative, to ask reconsideration to the court if the court doesn’t give reconsideration I will go further I will stop it there.
MS. ADKINS: Okay. Your Honour, clearly as I’ve said earlier on, I misunderstood the procedure when the defence-because I was expecting for us to go into the examination in-chief but it happened suddenly and I thought we were going to go first I was also surprised as my client says that I’m new, of course, and I misunderstood you. So, his clear instruction on this matter is if- because this is his right, this is his evidence he has to submit his evidence and if that’s not happening he gave me a clear instruction that we cannot continue.
THE COURT: All right so again, my understanding is that you wish to discontinue your case at this juncture without reply evidence, is that correct?
MS. ADKINS: That’s my instruction.
[17] As a result of the above, no further evidence was called by Gebremariam.
Decision of the Trial Judge
[18] The trial judge concluded that the attempt to split Gebremariam’s case was intentional.
[19] The trial judge dismissed the action on the basis that there was inadequate evidence to prove the essential elements of the claim advanced.
Discussion
[20] It was open to the trial judge in these circumstances to conclude that the failure of Gebremariam to give evidence in chief to prove his claim was deliberate.
[21] In my view, however, it is of little consequence whether or not the failure to call adequate evidence to prove Gebremariam’s claims was deliberate or unintended. He and his counsel were given full opportunity to call evidence and declined to do so.
[22] By the time Gebremariam sought to take the stand, Gebregiorgis had completed her evidence and been cross-examined upon it at length.
[23] The trial judge’s ruling that to allow Gebremariam to split his case would be unfair to Gebregiorgis and would not be permitted was an appropriate determination which does not justify interference on appeal.
[24] What unfortunately occurred in this case was the product of the conduct and judgment of Gebremariam and his counsel. In my view, the trial judge made no reversible error nor was his management of the trial process unfair to Gebremariam.
Conclusion
[25] For these reasons, this appeal is dismissed.
Costs
[26] Costs of the appeal fixed at $2500.00 inclusive of disbursement and applicable taxes, shall be payable by Gebemariam to Gebregiorgis.
___________________________ Stewart J.
Released: April 21, 2017
CITATION: Gebremariam v. Gebregiorgis, 2017 ONSC 2000
DIVISIONAL COURT FILE NO.: 136/15
DATE: 20170421
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
TADESSE GEBREMARIAM
Appellant
– and –
YEALEMTARIK GEBREGIORGIS
Respondent
REASONS FOR DECISION
Stewart J.
Released: April 21, 2017