Court File and Parties

CITATION: Stokes v. Gasparini, 2018 ONSC 4340

DIVISIONAL COURT FILE NO.: 17-2288

DATE: 2018/07/13

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

Diana Stokes and Fiat Justitia Paralegal Services Defendants (Appellants)

– and –

Sonia Gasparini and Cefaloni Countertops Plaintiffs (Respondents)

Counsel:

Self-Represented

Corey Willard, for the Respondents

HEARD: June 20, 2018 (at Ottawa)

REASONS FOR DECISION

O’BONSAWIN J.

Background

[1] This is an appeal by the Appellants, Diana Stokes and Fiat Justitia Paralegal Services, from the Order of Deputy Judge McCarthy of the Ottawa Small Claims Court dated February 9, 2017. He awarded a judgment of $20,000, pre-judgment and post-judgment interest, and costs, including disbursements in the amount of $3,200 in favour of the Respondents, Sonia Gasparini and Cefaloni Countertops.

[2] Ms. Gasparini is the co-owner of Cefaloni Counter Tops (“Cefaloni”).

[3] Ms. Stokes is a licensed paralegal and her business is named Fiat Justitia Paralegal Services (“Fiat”).

[4] Ms. Gasparini discovered that Cefaloni had been making overpayments to Enbridge Gas over a 24-year period. She successfully negotiated a repayment from Enbridge Gas for the most recent six years of overpayment.

[5] Ms. Stokes, who had recently obtained her paralegal license, assisted Cefaloni in collecting the remaining overpayments from Enbridge Gas.

[6] Ms. Stokes began working on recuperating Cefaloni’s overpayments in April 2014. On June 27, 2014, a lawyer from Enbridge Gas reported that the matter had been settled. On August 24, 2014, Enbridge Gas paid the total settlement amount of $90,000 to Fiat in trust. The funds were deposited into Ms. Stokes’ trust account.

[7] A dispute arose between the parties regarding the payment for Ms. Stokes’ services.

[8] On August 25, 2014, Cefaloni offered Ms. Stokes the amount of $9,000 on the condition that she provide it with an invoice and a written statement as to where the money had come from. Later that same day, Ms. Stokes refused the offer.

[9] On August 27, 2014, Ms. Gasparini retained Gowling WLG (Canada) LLP for assistance. Gowling sent a demand letter in which Ms. Stokes was asked to take steps to ensure that the $90,000 in funds be sent to Ms. Gasparini and Cefaloni on or before August 29, 2014, at 5:00 p.m.

[10] On August 27, 2014, Ms. Stokes informed Ms. Gasparini that she was keeping $20,000 of the Enbridge Gas settlement proceeds as legal fees and sending a bank draft of the remaining $70,000 to Cefaloni. Ms. Stokes sent the bank draft the following day, but did not send Cefaloni an invoice.

[11] At the beginning of the hearing, Ms. Stokes wished to enter into evidence a large series of documents. She did not file a fresh evidence motion. However, since she was self-represented, I allowed her to make submissions as to why she thought these documents constituted fresh evidence. Ms. Stokes directed me to paragraph 63 in her factum, which reads as follows:

The Appellant is respectfully requesting that the fresh evidence tendered be submitted. The fresh evidence are the Appellants working documents which total 2 volumes and total some 800 pages, for the Enbridge claim and show the level and degree undertook by the Appellant. The evidence would not prejudice the Respondent as she has always stated that the Appellant never submitted proof of the work I undertook, as did the Trial Judge in his Order.

[12] I explained to Ms. Stokes that her appeal was not a venue to re-litigate the matter; it was for this Court to review whether or not the trial judge committed an error in his decision. I further asked her if these documents were available at trial and she responded that they were and that she had brought them to the second day of the trial. However, she did not use them in any way during the trial.

[13] Based on the fact that these documents were available at trial, and were physically brought to the trial on the second day, she could have used them, for example, in cross-examination. However, she chose not to do so. For these reasons, I dismissed her request to enter the documents as fresh evidence.

[14] Ms. Stokes argued two main points during her oral submissions: (1) there was a credibility issue during the trial; and (2) Deputy Judge McCarthy refused to allow her to file a specific document. It is important to note that after I had heard her submissions, I advised Ms. Stokes’ that it is not possible for this Court to make a determination about whether or not Deputy Judge McCarthy made an error regarding the issue of credibility because she only provided this Court with excerpts of the proceedings for the trial that was held on September 20 and 21, 2016. I was not provided with much of the testimony at trial.

[15] After I had heard submissions from both parties, I dismissed the appeal from the bench with reasons to follow. These are my reasons.

Positions of the Parties

[16] Ms. Stokes and Fiat argue as follows:

• During her cross-examination of Ms. Gasparini, there were over 215 interruptions by the trial judge.
• The trial judge interrupted the Respondent’s examination aiding their case by rephrasing a question that was already answered by Ms. Gasparini.
• The trial judge did not intervene in the cross-examination of Ms. Campbell.
• The trial judge’s conclusions regarding the credibility of the witnesses are not supported by the evidence.
• The trial judge erred in admitting Ms. Campbell’s two affidavits.
• During the cross-examination of the Respondent, the trial judge erred when he did not permit the examination of an e-mail and attached letter from Ms. Stokes.

[17] Ms. Gasparini and Cefaloni argue as follows:

• Judges may intervene to assure that justice is done.
• The limits of permissible questioning are not absolute and will depend on the facts and instances of each case. It is permissible for a trial judge to clarify ambiguities and put questions to a witness in order to bring out relevant information.
• The portions of the transcript provided by the Appellants are not sufficient to prove that Deputy Judge McCarthy demonstrated conduct that destroyed the image of judicial impartiality.
• The Appellants have not demonstrated that the record, assessed in its totality, supports a finding that Deputy Judge McCarthy’s conduct destroyed the image of impartiality.
• Appellate courts have shown great deference to the trial judge’s findings of credibility.
• The Appellant’s assertion that “there was no basis for any adverse inference to be drawn against the Appellants based on unsubstantiated facts” has no merit. After weighing the testimony and evidence presented at trial, Deputy Judge McCarthy concluded that Ms. Gasparini was the more credible of the two.
• The Appellants’ request that this Court find that quantum meruit and/or unjust enrichment apply. However, claims for quantum meruit and unjust enrichment were not pled or made at trial by the Appellants.
• Admissibility of documents is always a question of law for the trial judge.

Issues

[18] The following issues were raised by Ms. Stokes and Fiat:

1. Were the actions of the trial judge in conducting the trial of such a nature and extent that they created an appearance of unfairness sufficient to deprive the court of its jurisdiction?

2. Were the trial judge’s inferences and conclusions as to credibility supported by the evidence?

3. Did the trial judge ascribe insufficient weight to important evidence with respect to Ms. Eileen Campbell in allowing the affidavits to be entered as evidence?

4. Did the trial judge err in not allowing the Appellant’s counsel to continue cross-examining Ms. Gasparini on evidence that was submitted within the prescribed time?

Analysis

[19] The standard of review for decisions in the Small Claims Court is outlined in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. 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.

[20] Since this is a question of mixed fact and law, the standard of review is whether Deputy Judge McCarthy made a palpable and overriding error.

Were the actions of the trial judge in conducting the trial of such a nature and extent that they created an appearance of unfairness sufficient to deprive the court of its jurisdiction?

[21] Judges may intervene to ensure the proper administration of justice. In Brouillard Also Known as Chatel v. The Queen, 1985 56 (SCC), [1985] 1 S.C.R. 39, at para. 17, the Supreme Court states:

First of all, it is clear that judges are no longer required to be as passive as they once were; to be what I call sphinx judges. We now not only accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so for justice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order.

[22] In R. v. Stucky, 2009 ONCA 151, 303 D.L.R. (4th) 1, at para. 64, the Court of Appeal for Ontario clarified three situations in which questions put by a trial judge to a witness may be justified: (1) to clear up ambiguities and call a witness to order; (2) to explore some matter which the witnesses answers have left vague; and (3) to put questions that should have been asked by counsel in order to bring out some relevant matter, but which were nonetheless omitted.

[23] As discussed earlier, this Court was only provided with transcript excerpts for the two day trial. As stated by the Court of Appeal in Stucky, “the record must be assessed in its totality and the interventions complained of in a given case must be evaluated cumulatively, not as isolated occurrences, from the perspective of a reasonable observer present throughout the trial”. In this case, I am only able to base my decision on a partial record.

[24] Ms. Stokes alleges that Deputy Judge McCarthy was biased in favor of Ms. Gasparini and Cefaloni. Based on my review of the transcript excerpts, Deputy Judge McCarthy intervened appropriately. Below is a list of examples (not meant to be exhaustive) of some of his interventions:

Transcript Excerpt – September 20, 2016

• he advised Ms. Stokes’ agent that he had already asked that question of the witness (p. 50)
• he advised Ms. Stokes’ agent when he was asking leading questions (pp. 52, 55)
• he clarified when opinion evidence was not appropriate (pp. 57, 59)
• he sought clarification about documents of Cefaloni’s counsel (p. 67)

Transcript Excerpt – September 21, 2016

• he instructed the agent to allow the witness to finish her answer (p. 4)
• he sought clarification from the witness (p. 14)
• he sought clarification quite a few times about the location of documents (pp. 31, 36, 48, 55)
• he asked a witness to repeat an answer (p. 47)
• he sought clarification from counsel about the waiver of privilege (pp. 59, 60)

Were the trial judge’s inferences and conclusions as to credibility supported by the evidence?

[25] It is well established that appellate courts have shown deference to a trial judge’s findings of credibility. In R. v. W., 1992 56 (SCC), [1992] 2 S.C.R. 122, the Supreme Court affirmed that appeal courts must take into account the special position of the trial judge on matters of credibility since he has the advantage of seeing and hearing the evidence of the witnesses. The appeal court does not benefit from such an advantage. This view was shared by the Court of Appeal for Ontario in R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 46.

[26] In his decision, Deputy Judge McCarthy finds Ms. Gasparini to be a credible witness based on all of the evidence and the fact that she was consistent in her testimony. I see nothing in the partial record I have before me that leads me to conclude that Deputy Judge McCarthy’s inferences and conclusions as to credibility were not supported by the evidence. I have actually found it to be quite to the contrary.

Did the trial judge ascribe insufficient weight to important evidence with respect to Ms. Eileen Campbell in allowing the affidavits to be entered as evidence?

[27] The admissibility of documents is a question of law. Counsel for Ms. Gasparini and Cefaloni received two different affidavits, both sworn by Ms. Campbell, dated February 17 and 19, 2016. During her testimony, she did not recall signing two affidavits, however she conceded that she had obviously signed both.

[28] It is a high threshold to exclude evidence in civil matters. Evidence will only be excluded where its probative value outweighs its prejudicial effect. “Evidence is not ‘prejudicial’ simply because it works against the interests of a party […] Evidence is ‘prejudicial’ where it operates improperly or where it produces problematic collateral costs” (David Paciocco and Lee Stuesser, The Law of Evidence, 7th ed (Toronto: Irwin Law, 2015), p. 42). In this matter, there was no evidence of a prejudicial effect.

[29] Sub-section 27(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, states: “the Small Claims Court may admit as evidence at a hearing and act upon any oral testimony and any document or other thing so long as the evidence is relevant to the subject-matter of the proceeding, but the court may exclude anything unduly repetitious.” In addition, rule 18.02 of the Rules of the Small Claims Court, O.Reg. 258/98 states: “A document or written statement or an audio or visual record that has been served, at least 30 days before the trial date, on all parties who were served with the notice of trial, shall be received in evidence, unless the trial judge orders otherwise.”

[30] Deputy Judge McCarthy exercised his discretion as per s. 27(1) of the Courts of Justice Act and r. 18.02 of the Rules of the Small Claims Court in order to permit the admission of both affidavits. I reviewed the transcript excerpt of this part of Ms. Campbell’s evidence and conclude that he properly exercised his discretion to do so.

Did the trial judge err in not allowing the Appellant’s counsel to continue cross-examining Ms. Gasparini on evidence that was submitted within the prescribed time?

[31] During the cross-examination of Ms. Gasparini, Mr. Willard, counsel for Ms. Gasparini and Cefaloni, objected regarding the questioning regarding an email dated August 28 from Ms. Stokes to Mr. Willard. The latter argued that the email address listed for him on this email was incorrect and therefore, he had not received it. The following is the exchange afterwards between Mr. Shaw, agent for Ms. Stokes and Fiat, and Deputy Judge McCarthy:

MR. SHAW: I don’t know how respond to that. That’s, I don’t know how, quite how to respond to that, because we’re under the volition (ph) that this was sent. Anyhow.

THE COURT: But you’re going to be able, obviously, to put some evidence in from your client. It’s, it’s her email. So, maybe that could clarify something, but, at this point, you could, you’ve heard from counsel.

MR. SHAW: So, I will cross with that when the time comes (Excerpt of Proceedings at Trial, September 21, 2016, p. 28).

[32] It is clear from this exchange that Mr. Shaw was given the opportunity to deal with the letter through his witness and then he confirms that he “will cross with that when the time comes.” It must be noted that afterwards, Mr. Shaw did not cross-examine or refer to the email again during the trial. Deputy Judge McCarthy cannot be faulted for Mr. Shaw’s lack of action regarding the email. Deputy Judge McCarthy properly exercised his discretion as per s. 27(1) of the Courts of Justice Act.

Conclusion

[33] Based on all of the reasons noted above, I find that Deputy Judge McCarthy did not make a palpable and overriding error. Consequently, I dismiss Ms. Stokes’ and Fiat’s appeal.

[34] The Respondents were successful in this matter and argue that they are entitled to reasonable costs. I invited Ms. Stokes to make submissions on the issue of costs and she declined. Mr. Willard provided me with his Bill of Costs. I have reviewed it and the costs claimed are reasonable; I have exercised my discretion to award costs on a partial indemnity basis.

[35] Consequently, I order as follows:

(1) this appeal is dismissed; and

(2) the Appellants must pay the Respondents’ reasonable costs in the amount of $2,539.98 (includes fees, disbursements, and HST). This amount is to be paid within 30 days of this Order.

Justice M. O’Bonsawin

Released: July 13, 2018

CITATION: Stokes v. Gasparini, 2018 ONSC 4340

DIVISIONAL COURT FILE NO.: 17-2288

DATE: 2018/07/13

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

Diana Stokes and Fiat Justitia Paralegal Services Defendants (Appellants)

– and –

Sonia Gasparini and Cefaloni Counter Tops Plaintiffs (Respondents)

REASONS FOR DECISION

O’Bonsawin J.

Released: July 13, 2018