Court File and Parties
CITATION: Azzeh v. Tank Truck Transport Inc., 2018 ONSC 5387
DIVISIONAL COURT FILE NO.: 18-1094
DATE: 20180917
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GORDON, R.S.J.
BETWEEN:
AHAB AZZEH #1916492 ONTARIO LTD. Plaintiff (Respondent)
– and –
TANK TRUCK TRANSPORT INC. Defendant (Appellant)
COUNSEL:
James Longstreet, for the Plaintiff (Respondent).
John A. Annen, for the Defendant (Appellant).
HEARD: September 7, 2018
Reasons for Decision
Overview
[1] On April 23, 2018 Deputy Judge Mensour struck the defence of Tank Truck Transport Inc. (“Tank Truck”) and proceeded with the claim of Ahab Azzeh #1916492 Ontario Ltd. (“Azzeh”) as an assessment. He awarded Azzeh damages of $25,000, costs of $3,750 and disbursements of $175.00.
[2] Tank Truck seeks an order extending the time to serve and file an appeal of that decision to the Divisional Court.
Background Facts
[3] Azzeh’s Small Claims Court claim against Tank Truck was issued on August 31, 2016.
[4] The un-contradicted evidence of Azzeh is that Tank Truck failed to attend at the first scheduled settlement conference. I have not been provided with the date of that conference or any endorsement arising from it.
[5] A subsequent settlement conference was scheduled and held on March 20, 2017. The Deputy Judge presiding at that settlement conference made the following endorsement:
Settlement conf held, adjourned to May assignment court. Both parties shall exchange all documents to be relied upon to advance their case within 30 days or by April 20, 2017. Parties are at liberty to request a further settlement conference at the May assignment court should they so choose. Otherwise can set the matter down for trial.
[6] At the May assignment court the matter was adjourned to August 10, 2017 for trial. On August 10, Azzeh was in attendance with his witnesses ready for trial. Tank Truck requested an adjournment. The adjournment was granted. The deputy judge made the following endorsement:
As it appears that a witness material to the defence has gone missing, the matter is adjourned to a date to be set by the clerk for trial, 2 days required for trial. The plaintiff has travelled from Baffin Island for trial and is present with his witnesses. Costs will therefore be awarded to the plaintiff, in any event of the cause, in the sum of $3,000.00 payable within 30 days hereof. In addition, the defendant has not produced any documents despite the order of Justice Mason dated March 20, 2017. The Defendant will deliver the entire file of its dealing with the plaintiff within 30 days.
[7] The trial was subsequently scheduled by the clerk for November 30, 2017.
[8] When Tank Truck failed to pay costs and failed to deliver any documents, Azzeh brought a motion returnable on November 30, 2017 for an order striking the defence.
[9] On November 29, 2017, Tank Truck finally provided its documentary disclosure and paid the outstanding costs order. On November 30, 2017, the court made the following endorsement:
Motion dismissed. Trial adjourned to next assignment court – I am not seized with this matter. Costs of the motion payable to the Plaintiff in the amount of $1,000 – (one thousand) plus filing fee in any event and payable by the defendant within 30 days.
[10] The matter was subsequently scheduled for trial on April 23, 2018. When that date came, Tank Truck had not yet paid the costs ordered on November 30, 2017. The evidence before me is that those costs remain unpaid to date. The matter was called for trial and the representative of Tank Truck advised the court that its witness was not present. The matter was stood down to 11:00 in an effort to have the witness located, without success. Azzeh renewed his request that Tank Truck’s defence be struck given its failure to pay the costs order of November 30 and its failure to appear with its witnesses for trial. The court struck Tank Truck’s defence and invited its representative (a paralegal) to leave court. The deputy judge conducted the hearing and made the following endorsement:
For oral reasons delivered: (1) The defendant’s defence is struck and the matter will proceed as an assessment hearing. (2) The plaintiff will have (based on the evidence adduced both orally and in writing at the assessment hearing), judgment as against the defendant, for $25,000 plus costs of $3,750 and disbursements of $175.00. (3) All earlier costs orders remain in effect.
[11] By letter of May 4, 2018 Tank Truck’s representative reported to it as follows:
Enclosed herewith, please find the Order of Justice Mensour dated April 23, 2018 received by our office on even date.
As you are aware, your representative did not attend as they mistook the trial date. I attempted to have the Court wait, however they excused myself as I did not have a client present and proceeded with an Assessment Hearing. This gives you ground for Appeal as you were not present and I was excused.
[12] On receipt of this letter Tank Truck began email correspondence with its representative with the intention of launching an appeal of the decision. Eventually the Notice of Appeal with date July 30, 2018 was prepared, along with this motion seeking leave to extend the time for filing it. Although the Notice of Appeal is not specific in this regard it is fair to infer that what Tank Truck wishes to appeal is the striking of its defence and the award of damages and costs against it.
[13] The Notice of Appeal sets out the following grounds for appeal:
That the Deputy Judge erred in law by denying the Appellant procedural fairness on the hearing of the trial by dismissing the Appellant’s Paralegal from the Court Room.
That the Deputy Judge erred in fact and law by reasoning that the Appellant was in contempt of court by its witness arriving late to the trial.
That the Deputy Judge erred in law and fact in finding the quantum of damages and costs that were awarded.
That the Deputy Judge erred in law in granting Judgment to the Respondent Ahab Azzeh #1916492, a non-entity.
[14] There has been no transcript of the proceedings of April 23, 2018 provided to this court. Counsel for Tank Truck asked that the matter proceed notwithstanding.
The Test on Motion to Extend the Time for Filing of an Appeal
[15] In the case of Laczko v. Alexander, 2012 ONCA 803, the Ontario Court of Appeal had occasion to comment on the factors for consideration when a moving party seeks an order to extend the time for filing a notice of appeal from an order striking out their statement of defence. It held as follows:
In deciding whether to extend the time, the following factors are relevant: (1) whether the moving parties formed an intention to appeal within the relevant period; (2) the length of and explanation for the delay; (3) any prejudice to the responding party; (4) the merits of the appeal; and (5) whether the justice of the case requires it: Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A.).
[16] Azzeh essentially concedes that Tank Truck formed an intention to appeal within the relevant period and has adequately explained the delay in preparing the Notice of Appeal and bringing this motion. Argument before me centered on the remaining three factors.
Analysis
Prejudice to the Responding Party
[17] Azzeh brought his action in the Small Claims Court on August 31, 2016. Section 25 of the Courts of Justice Act provides that the Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience. Rule 1.03(1) of the Small Claims Court Rules provides that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act.
[18] Azzeh has done everything reasonably possible to have the case considered on its merits in a timely fashion and yet today, more than two years later, his efforts to do so have been largely stifled by Tank Truck. In my view, the significant delay in Azzeh’s ability to pursue its claim in a timely fashion amounts to prejudice.
[19] In addition, if successful on the appeal, Tank Truck seeks to have the matter remitted to the Small Claims Court for a new trial. At such a trial Tank Truck would, presumably, be entitled to lead evidence. However, Tank Truck seems to concede that the proper course for the Deputy Judge on April 23 would have been to proceed to trial without striking its defence. Had the Deputy Judge done so, the trial would have been properly conducted without Tank Truck being able to lead evidence, as its only witness had not attended.
[20] It is my view that proceeding to appeal, with the possibility that Azzeh may be required to conduct the trial anew and be required to meet the evidence of Tank Truck, amounts to potential prejudice.
The Merits of the Appeal
[21] As I have indicated, I have not been provided with a transcript containing the oral reasons for the endorsement made by the Deputy Judge. It is difficult for me to understand how I can assess the merits of the appeal without knowing the reasons for the decision. Nonetheless, Tank Truck asked that I hear its motion.
[22] Tank Truck argues that it was denied procedural fairness because its representative was not allowed to participate in the trial of the action. What this argument fails to recognize is that Tank Truck’s defence was struck. Once its defence was struck Tank Truck had no standing to participate. Accordingly, what is really at issue is the Deputy Judge’s decision to strike the defence.
[23] In that regard, Tank Truck argues that the only means by which the Deputy Judge could have struck its defence was by finding it in contempt of the order of November 30, 2017. It goes on to argue that a finding of contempt cannot be made based on non-payment of a costs order, and further that it was not provided with any or adequate notice that any order of contempt was being sought.
[24] Assuming the Deputy Judge struck the defence on the basis of contempt, I would agree. However, there are other means by which the Deputy Judge may have struck the defence. Rule 1.03(2) of the Small Claims Court Rules provides that if the rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act, and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
[25] Rule 60.12 of the Rules of Civil Procedure provides that where a party fails to comply with an interlocutory order, the court may, among other things, strike out the party’s defence. In addition, Rule 57.03(2) states that where a party fails to pay the costs of a motion the court may, among other things, strike out the party’s defence.
[26] It is quite conceivable that the Deputy Judge proceeded under those provisions.
[27] When this matter went before the Deputy Judge on April 23, 2018, it was the third occasion on which the matter had been scheduled for trial. On the first occasion it had been adjourned at the request of Tank Truck because its witness had gone missing and it had not complied with the order for disclosure made more than four months earlier. It was ordered to pay costs and to make the disclosure within 30 days. It failed to do so. It was not until the very eve of the next scheduled trial date some three months later that disclosure was made and the costs paid. This resulted in a further adjournment of the trial and a further costs award against it. When the matter was up for trial some five months later Tank Truck was again in the position of not having its witness present and having failed to pay the outstanding costs order. In the face of this history, it is readily conceivable that the Deputy Judge relied upon the rules cited above as authority for striking the defence.
[28] Tank Truck has given me no good reason to doubt the soundness of the decision if it was made on that basis. It has provided no explanation for its failure to be ready for trial in August of 2017. It has provided no explanation for why it took until the eve of the trial scheduled for November 20, 2017 to pay the ordered costs and make the disclosure that had been ordered nine months earlier. It has provided no explanation for why the costs ordered on November 20, 2017 were not paid by the date of the trial scheduled for April 23, 2018, or why its witness was not present for the trial. It has provided no explanation why it has yet to pay the costs ordered in November of 2017.
[29] Tank Truck has also appealed on the basis of an error by the judge in determining the amount of damages and costs payable. However, without the reasons I am unable to determine whether there was any such error. I have been given no good reason to believe any error was made. Certainly, the awards were within the jurisdiction of the Deputy Judge. In this regard, I note that section 29 of the Courts of Justice Act allows the court to award costs in excess of 15% of the amount claimed if necessary in the interests of justice to penalize a party for unreasonable behavior in a proceeding.
[30] Lastly, Tank Truck appeals on the basis of the Plaintiff being a non-entity. There is no evidence before me that Azzeh is a non-entity or is improperly named.
[31] On the documentation filed, the appeal appears to have very limited, if any, merit.
The Justice of the Case
[32] Azzeh did his level best to advance a relatively uncomplicated claim in the Small Claims Court. Tank Transport was cavalier in its defence. It disregarded court orders for disclosure until a contempt motion was brought. It disregarded court orders for the payment of costs until a contempt motion was brought. It acceded to the scheduling of trial on three occasions and on each occasion was unprepared to proceed. On the last occasion, not only was it unable to proceed because its witness failed to attend, but it remained in default of a costs order made five months earlier.
[33] Had the deputy judge conducted proceedings on April 23, 2018 as Tank Truck now suggests, the trial would have been conducted without evidence on behalf of Tank Truck, but with it having the benefit of its agent conducting the cross-examination of Azzeh. What Tank Truck seeks on appeal is an order remitting the matter for a full trial. It is difficult to see the justice in such a result.
[34] I am aware that Tank Truck believes it has a meritorious defence to the claim. It would also appear from the affidavit of Olivia Wiggins-Reid that there were, at the least, communication issues between Tank Truck and its representative. However, as set out in Laczko v. Alexander, supra, a representative of a party retained to represent that party in court proceedings is an agent of the client. It means that, vis-à-vis the other party, it is generally the client who is responsible for the actions of its representative. If the client has been wronged as a result of the actions of the representative, the client has recourse through an action in negligence against that representative.
Conclusion
[35] On consideration of all of these factors I am of the view that extending the time for appealing the decision of the Deputy Judge in not appropriate. Although Tank Truck had always intended to appeal and has provided a reasonable explanation for the delay in doing so, it remains that the appeal as presented has little merit. Perhaps more importantly, given the conduct of Tank Truck throughout the proceedings and its continuing default in payment of the costs order of November 30, 2017 it would be unjust to grant this relief.
[36] The motion is dismissed. If the parties are unable to agree on costs they may make written submissions to me, not to exceed three pages plus attachments, within 45 days.
R. D. Gordon, R.S.J.
Released: September 17, 2018
CITATION: Azzeh v. Tank Truck Transport Inc., 2018 ONSC 5387
DIVISIONAL COURT FILE NO.: 18-1094
DATE: 20180917
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R. D. GORDON, R.S.J.
BETWEEN:
AHAB AZZEH #1916492 ONTARIO LTD. Plaintiff (Respondent)
– and –
TANK TRUCK TRANSPORT INC. Defendant (Appellant)
decision on motion
Released: September 17, 2018