CITATION: Sabatin v. Ganji, 2018 ONSC 5680
DIVISIONAL COURT FILE NO.: Div. Ct. 366/17
DATE: 2018/09/26
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Eleno Sabatin
Plaintiff
– and –
Kamran Ganji
Defendant
N. Sivakumaran for the Plaintiff
S. Juzkiw for the Defendant
HEARD: September 24, 2018
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] The Plaintiff, Eleano Sabatin, appeals an Endorsement Order dated June 8, 2017 made in the Small Claims Court by Deputy Judge McNeely. Mr. Sabatin asks that the Order be set aside because the Deputy Judge: (a) lacked jurisdiction; (b) unreasonably denied an adjournment request; and (c) misdirected herself both in law and on the facts. For the reasons that follow, Mr. Sabatin’s appeal is dismissed.
B. Facts
[2] In January 2016, Mr. Sabatin signed an agreement to sell his home in Toronto to the Defendant, Kamran Ganji. Mr. Ganji, however, breached the agreement, and in June 2016, Mr. Sabatin commenced a Small Claims Court action in Toronto against Mr. Ganji.
[3] On January 31, 2017, there was a trial in Toronto, and a Deputy Judge granted Mr. Sabatin a judgment for $25,000 plus costs and disbursements of $1,175 plus pre and post-judgment interest.
[4] On March 30, 2017, there was a judgment debtor examination in the Newmarket Small Claims Court. The examination was in Newmarket because that was where Mr. Ganji resided. Pursuant to rule 20.10 of the Small Claims Court Rules, an examination of a judgment debtor shall be held where the judgment debtor resides.
[5] Deputy Judge Baker presided at the examination. Mr. Sabatin and a friend (R. Jogendra) were in attendance to examine Mr. Ganji. Mr. Jogendra is a retired justice of the peace who was acting pro bono for Mr. Sabatin. Mr. Ganji attended the examination along with Bita Maftoun, a licensed paralegal.
[6] At the examination on March 30, 2017, Deputy Judge Baker made the following endorsement.
Adjourned to Thursday September 28, 2017, 1:30 p.m. (before myself) and subject to a filing in bankruptcy. The plaintiff wishes to review the material provided to him today by the debtor. I shall deal with the issue of costs of today on September 28th. The debtor is warned to attend on Sept. 28th.
On consent, the debtor shall pay to creditor $7,000 in full and final satisfaction of the claim as follows: (i) $2,300 by May 1, 2017; (ii) $2,300 by June 1, 2017; and (iii) $2,300 by July 1, 2007. Payment will be by Money Order. If paid then no need to attend on September 28th. If any default then the debtor to attend on September 28th and creditor may pursue for full amount and interest and costs.
[7] As may be noted, Deputy Judge Baker’s Endorsement Order memorialized a $7,000 settlement of the $25,000 judgment with installment payments beginning on May 1, 2017.
[8] What happened next is the source of controversy. This controversy eventually led to a motion in Toronto on June 8, 2017 before Deputy Judge McNeely and to the Endorsement Order that is now under appeal.
[9] Mr. Ganji’s account of the events that followed the judgment debtor examination is that after the hearing before Deputy Judge Baker, he had a conversation with Mr. Sabatin and arrangements were made that Mr. Ganji would make the installment payments by delivering money orders to the office of his representative where the payments would be picked up by Mr. Sabatin. According to Mr. Ganji, he did deliver the money orders as arranged, but when Mr. Sabatin did not pick up the payments, he attempted to deliver them to Mr. Sabatin’s home. Mr. Sabatin says that Mr. Sabatin avoided the deliveries and instead treated the settlement as breached. Rather than accept the payments, Mr. Sabatin had a writ of seizure and sale and a notice of garnishment issued. In response to these developments. Mr. Ganji brought a motion in Newmarket to stop Mr. Sabatin’s enforcement activities. He says that there were no judges available in Newmarket, and so he went back to Toronto and brought on the motion that was heard by Deputy Judge McNeely on June 8, 2017.
[10] Mr. Sabatin’s account of the events is different. He says that Mr. Ganji lied during the hearing before Judge Baker and is lying again about the alleged arrangement that would have Mr. Sabatin pick up the money orders. While there was indeed a conversation after the hearing before Deputy Judge Baker, the arrangement was that Mr. Ganji would mail the cheques to Mr. Sabatin. Mr. Sabatin says the cheques were not mailed, and the settlement agreement having been breached, he was entitled to enforce the $25,000 judgment with a Notice of Seizure and Sale and a Notice of Garnishment.
[11] With their rival versions of the events between March 30, 2017 and June 8, 2017, Mr. Ganji, along with Ms. Maftoun, and Mr. Sabatin, along with his daughter Annalisa Melendez, attended the hearing before Deputy Judge McNeely.
[12] It was a lengthy hearing. The transcript of the hearing is over 80 pages in length. After the hearing was well underway, Mr. Sabatin asked for an adjournment so that Mr. Jogendra, who was out of the country, might participate and represent Mr. Sabatin (page 24 of the transcript). Deputy Judge McNeely refused to adjourn the hearing and it continued.
[13] At the hearing on June 8, 2017, Deputy Judge McNeely made the following Endorsement Order:
Ms. Maftoun argues that the payment under the Settlement of March 30, 2017 has been refused and there is no breach of the payment obligations undertaken on March 30, 2017. The plaintiff was asked to respond to the suggestion made that the attempt to pay was thwarted. No directions were given in the Order of D.J. [Deputy Judge] Baker as to payment other than it was to be by money order. This has led to the dispute about how to pay.
I am not satisfied that there was a breach by the defendants of his payment obligations. I find that the consent order to pay $7,000 over 3 payments was a settlement of the full claim under the judgment. That settlement is still binding on the plaintiff. There is no basis for the plaintiff to argue a default and or breach by the defendant. The plaintiff did not claim to have done anything to collect the first two payments. No bank account number was given and there is a dispute about whether the money was to be picked up.
I do not find a breach entitling the plaintiff to revert to the original claim for $25,000.
The $7,000 is to be paid into Court to the credit in the action as the parties have not agreed on how the $7,000 is to be paid to the plaintiff.
The motion was brought in Toronto as no judges were said to be available in Newmarket and this date is said to be the earliest available date. I do not see Baker D.J. as having seized himself of all issues, as no such words are found in his Order of March 30, 2017. What was adjourned was the examination date not all issues relating to the execution of the judgment, which is a Toronto judgment.
Upon payment of the $7,000 into court to the credit of this action, the judgment shall be fully satisfied provided that the payment of the full $7,000 is made by NOON June 22, 2017. If not paid into Court on time or in full, the writ and judgment shall remain as is.
Once payment into court has been made, the writ of seizure and sale shall be withdrawn. The Notice of Garnishment was stayed by operation of rule 20.01 (2) as D.J. Baker made a periodic payment order, and the rule bars further enforcement other than a registrar’s order.
Upon payment of the $7,000 into court, the examination date is no long necessary but the scheduling issue is an issue for Deputy Judge Baker.
The defendant seeks costs of $1,000 saying that the conduct of the plaintiff acted unreasonably. The plaintiff disputes this and says he should claim costs not reverse. The problem arose for both parties because they did not agree on how to pay the payments. If they had asked for how directions on March 30, 2017, this dispute would have been avoided.
The plaintiff is owed the $7,000 being paid into court and it was paid in as no agreement was reached to have payment to the plaintiff. The plaintiff is forced to bring a motion to seek payment out of court.
The dispute could have been avoided by both parties by seeking directions from the court earlier. Being wrong in law is not the same as being unreasonable. That said, the allegation of breach was not successful … [illegible] to defendant.
$60 in disbursement for the filing of the motion shall also be paid to the defendant.
[14] On June 12, 2017, Mr. Ganji paid $7,000 into court.
[15] On June 30, 2017, Mr. Sabatin appealed Deputy Judge McNeely’s Order.
C. Discussion
[16] There is no merit to Mr. Sabatin’s appeal.
[17] The Small Claims Court is a branch of the Superior Court of Justice[^1] and has a province- wide territorial jurisdiction. Mr. Sabatin commenced his action in Toronto, and although the judgment debtor examination of Mr. Ganji was in Newmarket, the Toronto Court remained and was the appropriate location for Mr. Ganji’s motion. Deputy Judge McNeely’s analysis that Deputy Judge Baker was not seized of the matter was correct.
[18] Deputy Judge McNeely made no reviewable error in refusing the mid-hearing request for an adjournment.
[19] Whether to grant or refuse an adjournment of a hearing of an application (or any other hearing) is a matter of judicial discretion.[^2] In Ariston Realty Corp. v. Elcarim Inc.,[^3] I listed some of the factors for a court to consider in deciding to grant or refuse an adjournment, including: the overall objective of a determination of the matter on its substantive merits; the principles of natural justice; that justice not only be done but appear to be done; the particular circumstances of the request for an adjournment and the reasons and justification for the request; the practical effect or consequences of an adjournment on both substantive and procedural justice; the competing interests of the parties in advancing or delaying the progress of the litigation; the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment; whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused; the need of the administration of justice to process civil proceedings in an orderly manner; and the need of the administration of justice to enforce court orders effectively. That a party is self-represented is a relevant factor in the exercise of the court’s discretion to grant or refuse an adjournment because a part of the court’s obligation is to ensure that all litigants have a fair opportunity to advance their positions.[^4]
[20] Deputy Judge McNeely’s decision to refuse an adjournment, particularly when the request was made well into the hearing, was a principled and rationale decision and did not deny Mr. Sabatin a fair hearing. He had a fair opportunity to present his case and his arguments.
[21] Finally, I see no error of fact or in law in Deputy Judge’s decision that there was no breach of the settlement agreement and that Mr. Sabatin was bound by the terms of that agreement.
D. Conclusion
[22] For the above reasons, Mr. Sabatin’s appeal is dismissed.
[23] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Mr. Ganji’s submissions within ten days from the release of these Reasons for Decision followed by Mr. Sabatin’s submissions within a further ten days.
Perell, J.
Released: September 26, 2018
CITATION: Sabatin v. Ganji, 2018 ONSC 5680
DIVISIONAL COURT FILE NO.: Div. Ct. 366/17
DATE: 2018/09/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Eleno Sabatin
Plaintiff
– and –
Kamran Ganji
Defendant
REASONS FOR DECISION
PERELL J.
Released: September 26, 2018
[^1]: Courts of Justice Act, R.S.O. 1990 c. C.43, s. 22.
[^2]: Khimji v. Dhanani, (2004), 2004 12037 (ON CA), 69 O.R. (3d) 790 (C.A.); Graham v. Vandersoot (Vandersloot), 2012 ONCA 60.
[^3]: 2007 13360 (ON SC), [2007] O.J. No. 1497 (Ont. S.C.J.).
[^4]: Toronto-Dominion Bank v. Hylton, 2010 ONCA 752.