2018 ONSC 3916
DIVISIONAL COURT FILE NO.: 17-2357
DATE: 2018/06/21
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Jasmine Princivil
Defendant (Appellant)
– and –
Mogo Financial Inc., Operating as Mogomoney
Plaintiff (Respondent)
Self-represented
James Plotkin for the Respondent
HEARD: June 20, 2018 (at Ottawa)
REASONS FOR DECISION
o’bonsawin J.
Background
[1] This is an appeal by the Appellant, Ms. Princivil, of the Endorsement of Deputy Judge Leclaire of the Ottawa Small Claims Court dated November 17, 2017. The sequence of events is as follows:
• Mogo’s Plaintiff’s Claim was issued on June 28, 2017.
• Ms. Princivil was served with the Plaintiff’s Claim on July 4, 2017.
• Ms. Princivil failed to serve and file her Defence and was noted in default.
• A Default Judgment was issued on August 1, 2017.
• Ms. Princivil brought a motion to set aside the Default Judgment and to file a Defence.
• On August 18, 2017, Deputy Judge Leclaire granted the motion and set aside the Default Judgment and provided Ms. Princivil until September 1, 2017 to serve and file her Defence.
• On September 1, 2017, Ms. Princivil filed a Defence in this matter in addition to a second Defence against Western Life Assurance, which is not a party to this litigation.
• Mogo brought a Motion to have a payment order issued from the acknowledgment of debt provided by Ms. Princivil in her Defence. The motion was scheduled before Deputy Judge Leclaire on October 13, 2017.
• Deputy Judge Leclaire adjourned the Motion to be rescheduled before him on November 23, 2017. He ordered Ms. Princivil to provide her financial information to Mogo on a Form 20 by October 20, 2017. He urged the parties to come to a settlement of the litigation.
• Ms. Princivil brought a Motion seeking permission to file a Defendant’s Claim against Western Life Assurance.
• On November 17, 2017, the parties appeared before Deputy Judge Leclaire. In his Endorsement of the same date, he re-instated the Default Judgement in the amount of $9,724.29, plus disbursements of $356.69 and costs of $100 to be paid by Ms. Princivil to Mogo.
[2] Ms. Princivil argues as follows:
• In her Notice of Appeal, she seeks that the judgement be set aside and a judgment be granted, as well as:
the granting of the Defendant’s Motion to add the insurance company and return the matter back Small Claims Court to proceed to a Settlement Conference and Trial;
in the alternative, return of the motions to the Small Claims Court for rehearing; and
costs in her favor.
• The grounds of appeal listed are that the evidence submitted to the Small Claims Court was improperly weighed, there were errors of fact and errors of law, and there was an error in reinstating the Default Judgment and ordering costs.
• In her Factum, Ms. Princivil argues that she has a right to be tried within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms. [During the hearing before this Court, I advised Ms. Princivil that she could not argue that she has a right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter since this is not a criminal matter.]
• Deputy Judge Leclaire’s decision is erroneous and requires correction by this Court.
• Under the terms of the Loan Agreement, Mogo failed to honor the debt protection as part of her contract with it.
• She acknowledges that she was delinquent with the payments due to her ongoing debilitating health.
[3] Mogo argues as follows:
• Ms. Princivil seeks different remedies in her Notice of Appeal and Factum.
• On September 19, 2017, Western Assurance advised Ms. Princivil that she
did NOT meet the required employed hours to be eligible for the coverage. This produced two consequences:
You do not meet the eligibility requirement of hours worked and therefore your policy is cancelled and [we are] unable to proceed a claim or pay benefits
Because we had to cancel your plan due to ineligibility, it now requires us to return to you all the premium paid to MOGO for your coverage, which totals $1468.04.
• Mogo argued the issue of adding Western Life Assurance before Deputy Judge Leclaire. Ms. Princivil was already provided with a payment in the amount of $1,468.04 on October 23, 2017, which was the reimbursement of her premiums to Western Life Assurance. This amount was applied against her debt owed to Mogo. Her balance owing to Mogo is currently $9,724.29.
• Mogo attempted to come to a payment arrangement or settlement with Ms. Princivil and she failed to respond to any correspondence in this regard and failed to discuss any options at all. This led to Mogo placing the matter back in front Deputy Judge Leclair on November 17, 2017.
• Adding Western Life Assurance to this litigation is neither necessary nor warranted since all remedies that would have been available to Ms. Princivil have already been provided to her.
• There were no errors made by Deputy Judge Leclaire. He had carriage of this proceeding in its entirety commencing from the first Motion on August 17, 2017 and had a good understanding of the proceedings between the parties.
• The appeal should be dismissed and costs should be awarded.
Issue
[4] Did Deputy Judge Leclaire err when he issued his Endorsement reinstating the Default Judgement against Ms. Princivil?
Analysis
[5] The standard of review for decisions in the Small Claims Court is outlined in Housen v. Nikolaisen, 2002 SCC 33. At paragraphs 8, 10 and 37, the Supreme Court states:
8 On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness…
10 The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error” …
37 … [A question of mixed fact and law] is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the [legal] standard or its application, in which case the error may amount to an error in law.
[6] It must be noted that the parties did not provide this Court with any case law.
[7] Based on my review of the transcript of the Motion on November 17, 2017, Deputy Judge Leclaire decided to reinstate the Default Judgment for the following reasons:
I’m going to reinstate the default judgment. I … look at this defence. It … makes sense. There is no indication, whatsoever, of any infirmity or of anything – it’s … well presented, well prepared document and there is admission of … owing an amount of $11,000 minus interest. I just don’t see that there’s any basis, so I – Ms. Princivil, I want to tell you that I’ve given you every opportunity. I … quite frankly, I’ve delayed the … hearing of this matter on the merits since August in the hopes that you would work something out that … both parties could live with, and instead, I find you are rather in transit in … your address of this particular matter and quite frankly, you’re the party who leaves me with no choice, whatsoever, this morning but to award judgment in the amount that is being sought, $9,724 (p. 15 of the Transcript dated November 17, 2017).
[8] Since this is a question of mixed fact and law, the standard of review is whether Deputy Judge Leclaire made a palpable and overriding error. During the Motion, Deputy Judge Leclaire reviewed Ms. Princivil’s Defence in which she acknowledges that she owes the amount of $11,000 minus interest to Mogo. Based on the submissions of the parties and Ms. Princivil’s Defence, he reinstated the Default Judgment against Ms. Princivil.
[9] Deference is owed to the Deputy Trial Judge unless there is a palpable and overriding error.My review of the transcript and the documents provided by the parties to this Court support my conclusion that Deputy Judge Leclaire did not make a palpable and overriding error and there is no reason for me to interfere with his Endorsement of November 17, 2017.
[10] Rules 19.01(1) and 19.02 of the Rules of the Small Claims Court, O. Reg. 258/98, deal with the issue of costs. They state as follows:
19.01(1) A successful party is entitled to have the party’s reasonable disbursements, including any costs of effecting service or preparing a plaintiff’s or defendant’s claim or a defence and expenses for travel, accommodation, photocopying and experts’ reports, paid by the unsuccessful party, unless the court orders otherwise.
19.02 Any power under this rule to award costs is subject to section 29 of the Courts of Justice Act, which limits the amount of costs that may be awarded.
[11] Section 29 of the Courts of Justice Act, R.S.O. 1990, c. C.43, states:
An award of costs in the Small Claims Court, other than disbursements, shall not exceed 15 per cent of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding.
[12] The Respondent submitted a Cost Outline which I have reviewed. I exercise my discretion and order that Ms. Princivil pay Mogo the fair and reasonable amount of $1,000.00 inclusive of disbursements and HST. This amount is to be paid within 30 days of these Reasons for Decision.
Conclusion
[13] Consequently, I order as follows:
(1) Ms. Princivil’s appeal is dismissed; and
(2) Ms. Princivil must pay Mogo the amount of $1,000.00 inclusive of disbursements and HST within 30 days of these Reasons for Decision.
Justice M. O’Bonsawin
Released: June 21, 2018
2018 ONSC 3916
DIVISIONAL COURT FILE NO.: 17-2357
DATE: 2018/06/21
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Jasmine Princivil
Defendant (Appellant)
– and –
Mogo Financial Inc., Operating as Mogomoney
Plaintiff (Respondent)
REASONS FOR DECISION
O’Bonsawin J.
Released: June 21, 2018