Rizvi v. Urban Studio Inc., 2018 ONSC 484

CITATION: Rizvi v. Urban Studio Inc., 2018 ONSC 484

DIVISIONAL COURT FILE NO.: 002/18 DATE: 2018 01 18

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

ALI RIZVI, SYED MUSTAFA RIZVI

Ali Rizvi, acting in person

Syed Mustafa Rizvi, acting in person

Moving Parties (Plaintiffs)

Sarah Whitmore, Amicus

– and –

URBAN STUDIO INC. (carrying on business as ONLY BASEMENTS), JOSEPH ALAVI also known as YOUSEF ALAVI, and DENIELLE DICKERSON

Denielle Dickerson, acting in person

Phuong Thien Dam, for the Respondents, Urban Studio Inc. and Joseph Alavi

Respondents (Defendants)

HEARD at Toronto: January 18, 2018

C. HORKINS J. (Orally)

1The plaintiffs Ali Rizvi and Syed Mustafa Rizvi bring a motion for an order extending the time to appeal the order of Thomson J. of the Small Claims Court dated July 26, 2017. If allowed, they seek an order that the appeal be allowed and the order of Thomson J. set aside.

[2]

Overview

I start with an overview of the Small Claims Court claim. The plaintiffs commenced a claim in the Small Claims Court against the defendants in April, 2017. In this claim it is alleged that they entered into a contract with the defendants on December 1, 2016, to renovate their basement. According to the claim, monies were paid and numerous problems occurred with the renovation because the work was allegedly not completed and was done negligently.

3It is also alleged in the claim that the personal defendants negligently and fraudulently made representations to the plaintiffs concerning the renovation work. There are three defendants, Urban Studio Inc. carrying on business as ONLYBASEMENTS (the “Defendant Company”), Joseph Alavi also known as Yousef Alavi, who is described as the “principal and guiding mind” of the Defendant Company, and Denielle Dickerson, who is described as “principal” of the Defendant Company.

4The defendants filed their defences. They were late in doing so by about four weeks and the plaintiffs consented to the late filing. The defendant, Alavi states that he is not an officer, director or controlling mind of the Defendant Company. The defendant, Denielle Dickerson states that she was an employee of the Defendant Company and was not a principal as alleged.

5On July 31, 2017, Thomson J. of the Small Claims Court issued an order that states: “CLAIM AGAINST DEFENDANTS YOUSEF ALAVI AND DENIELLE DICKERSON IS IMPROPER AND IS DISMISSED. TO SETTLEMENT CONFERENCE.”

6There was no motion before Thomson J. and none of the parties were present when the order was issued. None of the parties had notice of the judge’s intention to consider the dismissal of the claim against the personal defendants and therefore, there was no opportunity to file material and make submissions.

7Everyone agrees that Thomson J. acted contrary to Small Claims Court Rule 12.02(3) and (4). This rule allows the court on its own initiative to issue an order, but only if Rule 12.02(4) is followed. The rule states:

12.02(3) The court may, on its own initiative, make the order referred to in paragraph 1 of subrule (2) staying or dismissing an action, if the action appears on its face to be inflammatory, a waste of time, a nuisance or an abuse of the court’s process.

(4) Unless the court orders otherwise, an order under subrule (3) shall be made on the basis of written submissions in accordance with the following procedures:

1. The court shall direct the clerk to send notice by mail to the plaintiff that the court is considering making the order.

2. The plaintiff may, within 20 days after receiving the notice, file with the court a written submission, no more than four pages in length, responding to the notice.

3. If the plaintiff does not file a written submission that complies with paragraph 2, the court may make the order without any further notice to the plaintiff or to any other party.

4. If the plaintiff files a written submission that complies with paragraph 2, the court may direct the clerk to send a copy of the submission by mail to any other party.

5. A party who receives a copy of the plaintiff’s submission may, within 10 days after receiving the copy, file with the court a written submission, no more than four pages in length, responding to the plaintiff’s submission, and shall send a copy of the responding submission by mail to the plaintiff, and, on the request of any other party, to that party.

8A judge must follow Small Claims Court Rule 12.02(4). A judge can decide not to follow Rule 12.02(4), but only if the judge “orders otherwise”. Judge Thomson did not order otherwise and was therefore required to comply with the Rule 12.02(4). She did not do so.

9As a result, the order was made without jurisdiction and in breach of principles of procedural fairness and natural justice. This is exactly what happened in two other cases involving the same judge. On both occasions, this court set the order in question aside because the same judge made an order without jurisdiction and in breach of principles of fairness and natural justice (see Kipiniak v. K. Dubiel; Kipiniak v. E. Dubiel, 2011 ONSC 825 and Capital One Bank v. Ramirez-Rodriguez, 2017 ONSC 3536).

10The plaintiffs did not learn about Thomson J.’s order until September 27, 2017. The paralegal who represented the plaintiffs at the time had moved and by the time the mail was forwarded, the delay had occurred. The paralegal advised the plaintiffs that the order was made contrary to the Small Claims Court rules and recommended that they address the problem at the settlement conference.

11On October 5, 2017, the parties attended a settlement conference before a different judge. Ms. Dickerson was not in attendance. The settlement conference judge asked the defendants to agree to set the order aside and they refused. The plaintiffs who were self-represented, believed that they had to seek to leave to appeal the order of Thomson J. This was an error as Thomson J.’s order is a final order and leave is not required. By November, they realized that a motion was necessary to extend the 30 day time period for an appeal. They brought this motion and it was heard today.

12In court during the midst of this motion, Ms. Dickerson advised the court that she did not receive the plaintiff’s affidavit but received everything else. I have an affidavit of service confirming that the affidavit of the plaintiff was indeed served and I note that the content of this affidavit is referenced in the plaintiff’s factum. Ms. Dickerson has filed full responding material. I accept and rely on this affidavit of service and I am proceeding today. No one is requesting an adjournment. In my view, it is fair to proceed particularly because everyone agrees that the judge had no power to issue the order. Secondly, as I have explained to the parties, they will have a full opportunity to present their defence in the Small Claims Court. My order deals simply with the obvious need to correct the fact that Thomson J. should not have made the order without complying with Rule 12.02(3) and (4) of the Small Claims Court Rules.

[13]

Motion to Extend Time to Appeal

Pursuant to Rule 61.04(1) of the Rules of Civil Procedure an appeal to an appellate court shall be commenced within 30 days after the order was made. I will deal first with the motion to extend the time to appeal.

14Rule 3.02(3) of the Rules of Civil Procedure governs a motion to extend the time to appeal. The case law makes it clear that the court dealing with such a motion must consider the following factors:

(1) Whether the appellant formed a firm intention to appeal within the relevant period.

(2) The length of and the explanation for the delay.

(3) Any prejudice to the responding parties.

(4) The merits of the appeal and the overarching justice of a case and whether the justice of the case requires the relief.

15I find that the plaintiffs have satisfied this test. As soon as the plaintiffs learned about the order of Thomson J., they sought advice and raised their concern at the settlement conference as suggested by the paralegal.

16Given what had happened, one would reasonably have expected that the order would be set aside on consent at this conference, particularly given the clear violation of the Small Claims Court rules. Unfortunately, the defendants did not agree to do so.

17As self-representative litigants, the plaintiffs acted as fast as they could to inform themselves about next steps and bring the motion to this court. In my view, their explanation for the delay is reasonable.

18I have no evidence of prejudice to the defendants if the order is set aside and I find that there is none. They will have the full right to defend the claim. This decision does not prejudice their defences.

19I have also explained that if they wish to bring a motion to strike the claims against them, they are free to do so in the Small Claims Court.

20Ms. Dickerson tells the court today in her submissions that she may not have emails left from the communications with the plaintiffs. However, the corporate defendant has produced numerous emails and I have no evidence that documents have been destroyed or lost.

21The merit of the appeal is not challenged. Everyone agrees that the Small Claims Court judge failed to comply with Small Claims Court Rule 12.02(4) and that she had no jurisdiction to issue the order. It is absolutely clear that the order breaches the principles of fairness and natural justice. In the context of what I have reviewed, the justice of the case requires that I grant the order extending the time to appeal and I do so.

[22]

The Appeal

Turning to the appeal. The issue is simple. The order was issued without jurisdiction and as I have stated already, it breaches the principles of fairness and natural justice. It must be set aside. There is no point in setting a separate date for the appeal to be heard, as suggested by counsel for the corporate defendant. The plaintiffs’ motion was clear. He was moving for a time extension and if allowed the hearing of the appeal today. Thomson J.’s order has already caused delay and an unnecessary expense and use of judicial resources. It would be a travesty not to deal with the appeal today.

[23]

Disposition

For all of the above reasons, I allow the appeal and I set aside the order of Thomson J. dated July 26, 2017.

24I have endorsed the Motion Record as follows: “Oral reasons given today: (1) An order is granted extending the time to appeal the order of Justice Thomson dated July 26, 2017. (2) The Appeal of the order of Justice Thomson dated July 26, 2017 is allowed and the order is set aside. (3) The plaintiffs’ costs of today are fixed at $634.45. The issue of whether the defendants are liable to pay the costs will be in the cause. (4) The claim shall proceed in the Small Claims Court before a judge other than Justice Thomson.”

___________________________ C. HORKINS J.