Citation and Court Information
CITATION: Chaly v. Preferred Roadside Towing, 2018 ONSC 5935
DIVISIONAL COURT FILE NO.: 300/18
DATE: 2018/10/04
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
ALISA CHALY Applicant/Appellant
Alisa Chaly, acting in person
– and –
PREFERRED ROADSIDE TOWING Respondent
Marco Terenzi, in person for the Respondent Scott McGrath, Duty Counsel/Amicus Curiae
HEARD at Toronto: October 4, 2018
Oral Reasons for Judgment
MYERS J. (Orally)
[1] The Appellant appeals from the decision of the Small Claims Court transferring to Brampton Ms. Chaly’s application under the Repair and Storage Liens Act, RSO 1990, c R.25, (“RSLA”).
[2] Ms. Chaly rightly notes that the RSLA requires that the matter proceed by application rather than action. Form 2 under s. 23 of the RSLA makes it clear that an application format is intended. The Small Claims Court Rules do not provide for applications. Rule 6.01 deals with actions and provides for actions to be brought where the defendant resides or the cause of action arose. Ms. Chaly argues that Rule 6.01 should not apply to applications. She argues that in the absence of a specific rule, the Court should turn to the Rules of Civil Procedure.
[3] The RSLA specifically provides for the Small Claims Court to have jurisdiction in s. 23 applications. These are typically very modest in value. The Small Claims Court Rules have always favoured keeping small matters local.
[4] The Small Claims Court Rules favour defendants who are impleaded by protecting them from having to incur travel costs. The Rules also provide that actions may be brought where the cause of action arose. That provision too links the case to the locality involved. The Civil Rules Committee has made a policy choice that convenience to the plaintiff is sacrificed in favour of the convenience of the defendant. Cash 4 U Corp. v. Power, [2014] OJ No. 2131 (Small Claims Court).
[5] Rule 1.03(2) of the Small Claims Court Rules provides that where the rules are silent, the Court may give directions as are just and the practice shall be decided by analogy to the Small Claims Court Rules. The Rules of Civil Procedure are only accessed as a final resort where appropriate.
[6] In my view, Rule 6.01 applies to RSLA applications by analogy. The same policy rationale that favours local resolution of small claims disputes and actions applies to applications under the RSLA. The judge was therefore correct to traverse the application to Brampton.
[7] The judge’s order is probably interlocutory. Therefore, this Court probably has no jurisdiction to hear this appeal. However, for the sake for efficient, affordable justice, I am prepared to deal with this matter as an application for judicial review so as to give the parties an answer today.
[8] It is incredible that the Appellant’s car is still being held. The Appellant has threatened the Respondent and demands “justice” while letting storage fees against her car accrue for months rather than just go to Brampton. She refuses to serve the Respondent at its convenient address and refuses to pick-up registered mail while demanding proper service on herself.
[9] I am prepared to help the parties resolve their dispute if both are willing. However, legal speaking, the appeal or application for judicial review must be dismissed.
[10] In the event that this matter proceeds further in this court, the Respondent may serve any documents on the Appellant by email at [DELETED to preserve privacy].
[11] The Appellant put the Respondent to the expense of this appeal and contested its motion to allow a director to represent it. She put the Respondent to expenses in preparing and filing materials and was wholly unsuccessful. In my view it is fair and reasonable for the Appellant to be required to pay the Respondent disbursements as a contribution towards its costs. Ms. Chaly is ordered to pay Preferred Roadside Towing costs of $300 before November 15, 2018.
[12] If the parties cannot resolve their issues themselves and both want to meet with me to try and mediate a resolution, they contact my assistant Annette Elek at annette.elek@ontario.ca .
F.L. MYERS J.
Date of Reasons for Judgment: October 4, 2018
Date of Release: October 9, 2018
CITATION: Chaly v. Preferred Roadside Towing, 2018 ONSC 5935
DIVISIONAL COURT FILE NO.: 300/18
DATE: 2018/10/04
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
ALISA CHALY Applicant/Appellant
– and –
PREFERRED ROADSIDE TOWING Respondent
ORAL REASONS FOR JUDGMENT
F.L. MYERS J.
Date of Reasons for Judgment: October 4, 2018
Date of Release: October 9, 2018