Harris v. Mason, 2017 ONSC 3602
CITATION: Harris v. Mason, 2017 ONSC 3602
DIVISIONAL COURT FILE NO.: DC-16-70-00
DATE: 2017 06 09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
(JUSTICE IVAN S. BLOOM)
BETWEEN:
George Howard Harris and Dorothy Lou Harris
Self-Represented
Respondents (Plaintiffs)
- and -
Ron Mason a.k.a. Pathfinder Property Corporation a.k.a. Smokesignal a.k.a. Skytalker
Self-Represented
Appellant (Defendant)
HEARD: June 9, 2017
ENDORSEMENT
Bloom J.
I. INTRODUCTION
[1] This matter is an appeal from the judgment dated June 8, 2016 of Deputy Judge, W. Voroney, of the Small Claims Court.
[2] Her Honour rendered judgment for the Plaintiffs, jointly and severally, against Ron Mason and Pathfinder Property Corporation jointly and severally for $ 10,000 plus prejudgment interest and postjudgment interest at seven per cent per annum from March 28, 2014. Her Honour also awarded costs of $500 for inconvenience and $260 for disbursements.
II. GROUNDS OF APPEAL
[3] I have considered both the factum and oral argument of the Appellants. As I understand them, they raise four principal grounds of appeal:
a) The learned trial judge erred in finding that the promissory note was an enforceable promissory note;
b) The learned trial judge erred in finding that the claim was not statute-barred;
c) The learned trial judge erred in finding Pathfinder Property Corporation liable; and
d) The learned trial judge erred in her costs disposition.
III. ANALYSIS
[4] The promissory note was drafted by the Appellant Mason and styled “PROMISSORY NOTE”. It was dated April 1, 2007, and was signed by both Appellants, as makers. It provided that “For Value RECEIVED, Maker promises to pay to Holder…$10,000 plus 7% interest…so that outstanding principal & interest shall be fully paid no later than May 1,” 2012.
[5] S. 176 of the Bills of Exchange Act, RSC 1985, c. B-4 provides:
Definition
176 (1) A promissory note is an unconditional promise in writing made by one person to another person, signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in money to, or to the order of, a specified person or to bearer.
(2) An instrument in the form of a note payable to the maker’s order is not a note within the meaning of this section, unless it is endorsed by the maker.
(3) A note is not invalid by reason only that it contains also a pledge of collateral security with authority to sell or dispose thereof.
R.S., c. B-5, s. 176.
[6] The trial judge found that the note was to secure a loan of $ 10,000 advanced to the Appellants; and that the note was clear, unequivocal, and valid. I see no basis in the evidence nor under s. 176 of the act to find error in those conclusions. I have regard to the deference owed the trial judge’s findings of fact as directed by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[7] The Appellants contended that the note was not unconditional and was not for a sum certain. I see no basis in the record to support those assertions.
[8] Moreover, both Appellants signed as makers; there is thus no basis to find that there was an error in holding both liable.
[9] The Respondents sought to have me vary the judgment of the trial judge on the interest matter. Since they had not cross-appealed, I have refused to consider this relief.
[10] The Appellants’ limitations argument was based both on the BEA and the provincial Limitations Act, 2002.
[11] With respect to the BEA, the Appellants relied upon s. 181 which provides:
Endorser discharged
181 Where a note payable on demand that has been endorsed is not presented for payment within a reasonable time, the endorser is discharged but, if it has, with the assent of the endorser, been delivered as a collateral or continuing security, it need not be presented for payment so long as it is held as such security.
R.S., c. B-5, s. 181.
[12] That provision does not apply to the note in question, since it was not payable on demand.
[13] With respect to the provincial Limitations Act, 2002, in oral argument the Appellants contended that the limitation period ran from May 1, 2012. Since the claim was issued on March 28, 2014, the two year limitation period had not run out before that date.
[14] Finally, in respect of the limitations issue, I note that the trial judge found that “Laches did not apply to the promissory note.”
[15] I find no error in the trial judge’s disposition as to costs.
[16] Rule 19.05 of the Rules of the Small Claims Court provides:
Compensation for Inconvenience and Expense
19.05 The court may order an unsuccessful party to pay to a successful party who is self-represented an amount not exceeding $500 as compensation for inconvenience and expense. O. Reg. 440/10, s. 5.
[17] That provision supported the $500 sum awarded to the Respondents for inconvenience.
IV. ORDER AND COSTS
[18] I, therefore, dismiss the appeal at bar. Further, if the parties are unable to agree on costs, I will receive submissions in writing of no more than 3 pages, excluding a bill of costs. The Respondents are to serve and file their submissions within 14 days from release of these reasons, and the Appellants are to serve and file their submissions within 14 days from service of the Respondents’ submissions.
BLOOM J.
Released: June 9, 2017
CITATION: Harris v. Mason, 2017 ONSC 3602
DIVISIONAL COURT FILE NO.: DC-16-70-00
DATE: 2017 06 09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JUSTICE IVAN S. BLOOM
BETWEEN:
George Howard Harris and Dorothy Lou Harris
Respondents (Plaintiffs)
- and -
Ron Mason a.k.a. Pathfinder Property Corporation a.k.a. Smokesignal a.k.a. Skytalker
Appellant (Defendant)
REASONS FOR JUDGMENT
BLOOM J.
Released: June 9, 2017