CITATION: Classic POS Inc. v. Business #828126714 O/A Holly, 2018 ONSC 3151

DIVISIONAL COURT FILE NO.: 141/17

DATE: May 22, 2018

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: CLASSIC POS INC, INEKE SUTHERLAND, Moving Parties/Appellants

-and-

Business #828126714 O/A HOLLY and HOLLY LOGGIE, Respondents/Respondents

BEFORE: F.L. Myers J.

COUNSEL: Ineke Sutherland, in person for herself and Classic POS Inc. John No, lawyer for the Respondents

HEARD at Toronto: May 18, 2018

ENDORSEMENT

[1] Parallel motions are brought in this appeal and in the appeal in Divisional Court File No. 106/17 in which Mr. Hinic is the respondent. Ms. Loggie and Mr. Hinic both succeeded in obtaining judgments against Classic POS in the Small Claims Court. The Deputy Judge awarded Ms. Loggie $3,034.99 for unpaid wages and vacation pay, $959.92 for pay in lieu of reasonable notice of termination of her employment, plus interest and costs. The Deputy Judge awarded Mr. Hinic $5,489.40 for unpaid wages, vacation, and holiday pay, nothing for pay in lieu of notice, plus interest and costs.

[2] The principal issue at the joint six day trial was whether the Ms. Loggie and Mr. Hinic were employees of Classic POS or independent contractors. The judge held that they were employees. The employer and its principal Ms. Sutherland appeal.

[3] Both appeals were dismissed for delay by the registrar by orders dated December 12, 2017. This endorsement deals with the appellants’ motions to reinstate both appeals.

[4] As a housekeeping matter, the title of proceeding is each of the appeals is amended on consent to remove Ineke Sutherland in her personal capacity.

[5] The court previously allowed Ms. Sutherland to represent her company in the Loggie appeal by endorsement dated April 21, 2017. It appears that the failure to make the order in the Hinic appeal was due to an oversight. Counsel did not oppose the request made by Ms. Sutherland. Therefore, order to go allowing Ineke Sutherland to represent Classic POS Inc. in the Hinic appeal in Divisional Court File N0. 106/17.

[6] At the outset of the appeals process, Classic POS listed the full transcripts of the six day trial in its Certificates Respecting Evidence as being required for the appeals. Therefore, it was required to file with the registrar proof that it had ordered the transcripts within 60 days of bringing its appeals. It did not file its certificates on a timely basis. The respondents moved to dismiss the appeals for delay last May. The appellants filed the certificates just prior to the return of the motion and therefore the motions were dismissed.

[7] According to Classic POS, they ordered the transcripts in May, 2017.[^1] Within a couple of weeks, the transcription service advised that the cost of transcription would exceed the initial quote of approximately $500 and would be closer to $5,000. Classic POS offered to pay $1,500 and sent a cheque in that amount. The transcription service did not cash the cheque. Rather, it cancelled the order. Classic POS says that the transcription service did not tell it that the order had been cancelled.

[8] When the respondents had heard nothing about the perfection of the appeals into November of last year, they contacted the transcriptionist and were told that the transcript order had been cancelled. The respondents then moved for a second time before the registrar to dismiss the appeals for delay.

[9] The respondents filed material with registrar that laid out the facts although they concluded that appellants had cancelled the order for the transcripts as they did not know the details now provided by Classic POS. The respondents tried to serve their materials on the appellants. Service has been an issue in this proceeding throughout. The appellant has declined to agree to service by fax or email. It asks to be called by phone so it can make arrangements to have someone at a UPS post office box store accept service on its behalf. But Ms. Sutherland confirmed that she does not answer or respond to calls from private numbers. As Mr. No’s clinic and lawyers generally block their call display identification, this has led to problems. So, while Ms. Sutherland knew on November 22 that a motion was scheduled for December 4, 2017, the respondents were not able to arrange with her to receive the materials. The respondents moved the date of the motion to December 12, 2017 in response to a letter from Ms. Sutherland indicating that she was going to be away on December 4, 2017. She proposed dates in January. The respondents were not prepared to wait that long. When Ms. Sutherland was informed that the motion was to be heard on the 12th, she advised that she had a medical appointment that day. She did not mention the time of day of her appointment and her doctor’s note does not mention the time either.

[10] No one attended before the registrar for the appellant and the registrar made the orders as sought. Ms. Sutherland advised that she went away again after the 12th and when she returned in mid-January she called the court and learned that the registrar had dismissed both appeals for delay.

[11] There is no convincing evidence as to why the appellant could not have been represented in court on the 12th or why Ms. Sutherland could not communicate with counsel by email or telephone before the motion or while she was away. It is apparent that the appellant is making itself hard to serve and then relies on technical rules to excuse its failure to appear despite having timely, actual notice that the motions were being brought.

[12] In my view however, the motions must be allowed and the orders of the registrar must be set aside. The registrar’s authority is set out in Rule 61.13. If an appellant has not filed proof of ordering a transcript required under Rule 61.05 within time set out in Rules 61.13 (1), (2), or (2.1), then Rule 61.13 (3) requires the registrar to dismiss the appeal. Conversely, where the appellant has filed proof of ordering transcripts prior to the registrar’s hearing, the registrar has no authority to dismiss the appeal under the rule.

[13] The registrar’s authority is administrative in nature. The registrar has a binary choice. Either the appellant has delivered proof of ordering the transcripts or not. The registrar does not weigh the quality of the compliance or excuses for non-compliance. Here, the respondents argued that the appellant’s order had been cancelled so that it was required to deliver a fresh certificate. The Rules do not say that however. Once the registrar saw that the appellant had delivered proof of ordering the transcripts last May, the registrar’s jurisdiction was exhausted. The place for debate over the quality of compliance, if any, is before this court under Rule 61.16 (5) or otherwise.

[14] Therefore the registrar’s orders cannot stand. However, that does not end the matter. I must still deal with the matters on the merits. The appellant asks that I order the transcriptionist to produce the transcripts at a set dollar figure. Assuming that the court has some jurisdiction to deal with transcript issues for proceedings before the court, I am not inclined to weigh-in without the transcriptionists being before the court. It strikes me that there are preferable forums for debates between the appellant and the transcriptionist in any event.

[15] The appellant then asks for an order limiting the transcripts required for the appeal to only the first and last days’ evidence. In fact, this is not an issue for the court. Rather under Rule 61.05 (1) it was for the appellant to list the evidence that it required for the appeal “in order to minimize…the length of the transcript required for the appeal.” Rule 61.05 (2) then enables the respondents to add any evidence to the list that it thinks is necessary and that the appellant has left out. Rule 61.05 (4) authorizes the parties to agree on the material needed for an appeal including the transcripts.

[16] In responding to the appellant’s request to decrease the number of days of transcripts from six to two, Mr. No advised that in his view all six days are required. He notes that among the appellant’s principal grounds of appeal is an argument that the Deputy Judge was biased. The respondents say that all six days of transcripts will be required to provide context to any snippets that the appellant may rely upon to try to establish bias. I am not in a position to determine what transcripts are required. The parties know what happened below and are well able to agree on what transcripts are required if they are so minded. I simply point both sides to Rule 61.05 (8) to remind both sides that costs may be ordered against a party who requires expensive reproduction of evidence unnecessarily.

[17] In my view, the appellant was not diligent in ensuring that its transcript order was finalized once a problem arose. It left the issue unresolved for months knowing that its cheque had not been accepted by the transcriptionist. Moreover, the appellant’s approach to service issues has run up costs and delayed the fair, efficient resolution of these very modest appeals. I am not prepared to quash the appeals at this time however. It seems to me that I can craft conditions that will allow the appeals to proceed more efficiently on the merits without dismissing them as yet.

[18] Therefore, the motions are granted and the registrar’s orders dated December 12, 2017 dismissing the appeals for delay are set aside on the following terms added under Rules 1.05, 37.13 (1) as incorporated into Rule 61.16 (1), and Rule 56.09 as follows:

a. The respondents are entitled to serve all documents required to be delivered by them in these appeals on the appellant by PDF attachment to an email sent to the email address of the appellant to which this endorsement is sent by the court. Proof of service by affidavit confirming that the email was sent to the proper email address is effective on the day the email is sent or the next business day if sent after 5:00 p.m. EDT. No acknowledgement of receipt or other permission of the appellant is required. The validity of service is confirmed regardless of whether the appellant turns off its email or causes the respondents to receive notice that their email(s) bounced back or otherwise were not read or received;

b. If it wishes to do so, the appellant in each appeal may serve and file an amended Certificate Respecting Evidence on or before 4:00 p.m. EDT on May 25, 2018.

c. If the appellant in either or both appeals delivers an amended certificate, then the respondents may file an amended Certificate Respecting Evidence in response on or before 4:00 p.m. EDT on May 29, 2018.

d. Regardless of whether amended certificates are delivered by any party, the appellant shall serve counsel to the respondents and file with the registrar by 4:00 p.m. EDT on June 1, 2018 proof that it has ordered transcripts from a duly accredited court transcriptionist as required by Rule 61.13.

e. If the appellant fails to file new proof in each appeal that it has ordered transcripts from an accredited court transcriptionist by 4:00 p.m. EDT on June 1, 2018, the registrar shall immediately dismiss the appeal or appeals in which no such proof is filed.

[19] The appellant has not retained counsel. It is appealing very modest judgments. It has filed evidence about its desire to be frugal with transcription costs to the extent of ordering from non-accredited sources. It has not diligently pursued the appeals and it has taken steps to increase the respondents’ costs with its approach to service. Based on the totality of these facts, the respondents raise a concern for the recoverability of its costs and the judgments below. In my view, it is fair and reasonable, as a condition of the court exercising its discretion to refrain from dismissing the appeals, that the appellant be ordered to post security for the costs of the respondents of $2,000 in cash or certified funds with the accountant of this court in each appeal before 4:00 p.m. EDT on June 29, 2018. Rules 56.05 to 56.08, inclusive, apply to this ruling. The only exception to the stay imposed by Rule 56.05 is the filing of the proof of ordering transcripts required in subpara. 18 (d) above.

[20] While the appellant has been successful on the motion in setting aside the orders of the registrar, it is clear that all of this procedural quagmire lies at the appellant’s feet. None of these process steps would have occurred had the appellant been diligent in handling its transcript order and cooperative in dealing with service. The appellant is receiving an indulgence. Therefore, this is an appropriate case in which to award the respondents their costs of the motion. The respondents seek $750 which is very reasonable. Classic POS Inc. shall pay the respondents jointly and severally through their counsel the aggregate sum of $750 costs on a partial indemnity basis by certified funds payable to their counsel’s clinic and delivered to his office by 4:00 p.m. EDT on June 1, 2018.

[21] Any requirement for the Classic POS and Ms. Sutherland to approve the form and content of the formal orders required to implement this endorsement is waived.

F.L. Myers J.

Date: May 22, 2018

[^1]: Classic POS has delivered affidavits for these motions that are based almost entirely on information and belief that the affiant obtained from Ms. Sutherland. The respondents did not object. Admission of the affidavits on these motions is not a determination that this process is appropriate.