Court File and Parties
CITATION: Bellissimo v. York Condominium Corporation No. 431, 2018 ONSC 3884
DIVISIONAL COURT FILE NO.: 233/14
DATE: 20180620
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
STEVEN BELLISSIMO
Steven Bellissimo, acting in person
Respondent/Plaintiff
– and –
YORK CONDOMINIUM CORPORATION NO. 431
Christopher P. Goldson, for the Appellant/Defendant
Appellant/Defendant
HEARD at Toronto: June 20, 2018
MATHESON J. (Orally)
Oral Reasons for Judgment
[1] This is an appeal from the judgment from the Deputy Judge Ferranti of the Small Claims Court rendered April 14, 2014. The plaintiff in the Small Claims Court is a lawyer who provided legal services to the defendant condominium corporation. The defendant condominium corporation is the appellant before me, challenging the above decision of the Deputy Judge, who granted judgment to the plaintiff in the amount of $19,215.40 plus interest and costs.
[2] The appeal is focused on the denial of a request for an adjournment during the Small Claims Court trial that gave rise to that trial judgment.
[3] By way of brief background, I note that the plaintiff had provided legal services to the condominium corporation for some time. He rendered accounts, some of which were paid, but he did proceed in June 2010 to bring a claim in the Small Claims Court for certain amounts that he claimed were unpaid. The condominium corporation defended the claim, including the delivery of a written defence that showed that it disputed the claim on a number of grounds.
[4] The trial was scheduled to take place on April 14, 2014. Three days prior to that trial date, the condominium corporation asked for an adjournment. There had been three prior adjournments of the trial, two of which were on consent and one of which was because the condominium’s lawyer was removed from the record. The April 14th trial date had been fixed in December 2012, about a year and a third prior to the April 14, 2014 trial date.
[5] Three days before that date, on April 11th, the paralegal who represented the condominium corporation wrote to the plaintiff requesting an adjournment. On the same day, the plaintiff wrote back refusing that request.
[6] On April 14, 2014, no one was in attendance at the commencement of the trial on behalf of the condominium corporation. The Deputy Judge presiding, Deputy Judge Ferranti, was told about the April 11th exchange of correspondence by which an adjournment was requested and refused. The Deputy Judge decided to proceed with the trial and I will read an excerpt briefly from his endorsement where he notes as follows: “The plaintiff wishes to proceed with the trial. I see no reason to deprive him of that opportunity, especially given the defendant’s failure to argue its request for adjournment.”
[7] The trial proceeded with the plaintiff’s testimony and, in the absence of the defendant, the Deputy Judge, who had the statement of defence of the condominium corporation, proceeded with his own questioning of the plaintiff based on the allegations in that statement of defence.
[8] At about 11:30 a.m., after the above steps had been completed, Mr. Donald Scott arrived in the courtroom. Mr. Scott was from the condominium corporation and was not a lawyer. Mr. Scott explained that he had been stuck in traffic due to an accident that had held up traffic.
[9] After Mr. Scott explained his lateness, he did not ask for an adjournment. He was told about the status of the proceedings. He was told that the plaintiff had already testified. He was asked if he wanted an opportunity to defend and he said “yes”.
[10] Over the objection of the plaintiff, the plaintiff was required to take the stand again and Mr. Scott was permitted to cross-examine him. After that step, Mr. Scott made submissions to the Deputy Judge indicating that he wanted to make arrangements for a payment plan. It is raised a number of times in the transcript. I will just quote one of the occasions, at p. 44 of the transcript, where Mr. Scott says the following:
All I would like to ask is – from the Court – is that we make some sort of a – of arrangement or whatever to rectify the balance owing. Whether we, we set up some sort of a monthly plan or some sort of a situation like that to rectify the amounts owing to you, ‘cause I know that we’ve had this file open for quite some time and as myself would like to put it to a close’.
[11] Mr. Scott went on to ask for that sort of thing more than once. As a result the Deputy Judge asked him whether or not he was conceding that the amounts were owing and he said “no”. Further dialogue with Deputy Judge caused the Deputy Judge to ask Mr. Scott if what he was trying to ask for was an adjournment and he said “yes”. That adjournment request was not granted by the Deputy Judge, who went on to render judgment in the trial with oral reasons for decision. Those reasons for decision, among other things, address a number of the issues raised in the condominium corporation’s statement of defence, further to the Deputy Judge’s own questioning of the plaintiff.
[12] The sole issue on this appeal is the refusal of the adjournment and the submission of the appellant condominium corporation that it amounted to a breach of its rights of procedural fairness for three reasons: (1) that Mr. Scott was not there for the plaintiff’s examination in chief, (2) that he was unable to do effective cross-examination, and (3) that the condominium corporation was deprived of a right to be heard as result of the refusal of the adjournment.
[13] The appellant condominium corporation fairly agrees that this is a discretionary decision of the Deputy Judge and the standard of review for such a decision is as summarized by the Supreme Court of Canada in Penner and Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125 at para. 27:
A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice: Elsom v. Elsom 1989 100 (SCC), [1989] 1 S.C.R. 1367, at p. 1375. Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 110 (SCC), [1992] 1 S.C.R. 3, at pp. 76-77.
[14] The appellant also fairly agrees that the Deputy Judge had a wide latitude in his discretion about whether or not to grant an adjournment. The appellant relies on a few cases, including Ariston Realty Corp. v. Elcarin Inc., 2007 13360 (ON SC), a decision of Perell J. in which at para. 34, he says that “[d]epending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge or master may need to weigh many relevant factors…” and he then lists various factors. As stated by Perell J. clearly in that case, it does depend on the circumstances of each case.
[15] Here, we have a situation where there had been three prior adjournments, a trial date set more than year earlier, and a deputy judge who was told that there had been a request three days prior to trial, which had been refused. Significantly, no one attended at this trial to make a request for an adjournment at the outset of the trial and even when Mr. Scott arrived, he did not request an adjournment. Having read the trial transcript, it is apparent that Mr. Scott was not there for that reason. He had not been sent to request that adjournment. It was only after a number of steps had been taken including his request for a timetable that the Deputy Judge sought Mr. Scott’s clarification about whether that something he was looking for and he said it was.
[16] It is also significant that the Deputy Judge, on his own initiative, questioned on the specific matters raised in the statement of defence and had the benefit of answers to those questions. And Mr. Scott did question on relevant matters, although obviously had not had the benefit of hearing the plaintiff’s evidence.
[17] Given the wide discretion available to the Deputy Judge, I am not persuaded that the Deputy Judge made a reviewable error in the exercise of his discretion. The appellant has not demonstrated that the Deputy Judge was clearly wrong or gave insufficient or no weight to relevant considerations.
[18] In oral argument, appellant’s counsel noted that the trial date was not peremptory. However, it was not required to be peremptory and there had been three prior adjournments. In addition, it is relevant that the day had been set over a year prior and the adjournment request was made three days prior to trial.
[19] A second issue raised in oral argument was s. 26 of the Courts of Justice Act, R.S.O. 1990, c. C.43, with the suggestion that the Deputy Judge ought not to have gone ahead in the absence of a representative from the Law Society on behalf of the condominium corporation or should have conducted some sort of inquiry into Mr. Scott’s competence to be there since he was not a member of the Law Society. However, s. 26 of the Courts of Justice Act does require either of those two things. It does permit a party to be represented in the Small Claims Court by a licensed member of the Law Society and does permit the Court to exclude an unlicensed member if the Court finds the person is not competent or does not understand or comply with the duties or responsibilities of an advocate. Leaving aside the fact that this was not previously raised, the transcript of this proceeding does not justify any suggested need for this Deputy Judge to have done any extra steps in relation to the attendance by Mr. Scott.
[20] I am therefore dismissing the appeal.
[21] I have endorsed the Appeal Book and Compendium as follows: “For reasons given orally, this appeal is dismissed. Costs are claimed by the respondent for both this appeal and a motion in from of Wilson J., who left costs to me. Bearing in mind all submissions in the exercise of my discretion regarding costs, I award the respondent $2,000, all inclusive. I also note that I make these orders despite what I found to be fair and well-intended submissions by appellant’s counsel.”
MATHESON J.
Date of Reasons for Judgment: June 20, 2018
Date of Release: June 22, 2018
CITATION: Bellissimo v. York Condominium Corp. No. 431, 2018 ONSC 3884
DIVISIONAL COURT FILE NO.: 233/14
DATE: 20180620
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
STEVEN BELLISSIMO
Respondent/Plaintiff
– and –
YORK CONDOMINIUM CORPORATION NO. 431
Appellant/Defendant
ORAL REASONS FOR JUDGMENT
MATHESON J.
Date of Reasons for Judgment: June 20, 2018
Date of Release: June 22, 2018