Court File and Parties
CITATION: Haggart v. Cooper, 2018 ONSC 6036
DIVISIONAL COURT FILE NO.: DC-1065/17 DATE: 20181011
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
ARRELL, R.S.J., MULLIGAN, and MATHESON, JJ.
BETWEEN:
RONALD HAGGART
Applicant
– and –
GLENNA COOPER and ALEXANDER COOPER
Respondents
COUNSEL:
Ronald Haggart, Self-represented.
Brianna K. Johns, counsel for the Respondents.
HEARD at Sudbury: October 11, 2018
Oral Reasons for Judgment
Arrell, R.S.J. (Orally)
[1] This is an application for judicial review of three orders of the Small Claims Court, as follows:
- the Order of the Deputy Judge Young of April 12, 2016 ;
- the Order of Deputy Judge Young of October 18, 2016; and,
- the Order of the Deputy Judge Thurston of May 12, 2017.
[2] The Applicant asks this Court to set aside or quash these orders, and seeks related relief.
[3] There is a very limited scope for an application for judicial review. Although the Divisional Court has jurisdiction to review a Small Claim’s Court decision, it generally will not do so unless the decision is made without jurisdiction or in breach of principles of natural justice: Peck v. Residential Property Management Inc., [2009] O.J. No. 3064 (Ont. Div. Ct.); Stamm Investments Ltd. v. Ryan, 2016 ONSC 6293, at paras 14-16 (Div. Ct.).
[4] This Court will not intervene on judicial review if the proceeding is, in essence, an appeal. The Courts of Justice Act, R.S.O. 1990, c. C.43 already addresses rights of appeal to the Divisional Court from the Small Claims Court in its s. 31. That regime cannot be circumvented by bringing an application for judicial review.
Brief background:
[5] The underlying dispute arises out of an Agreement of Purchase and Sale of a property that did not close. The Respondents made a claim against the Applicant for breach of that Agreement. The claim was brought in the Small Claims Court.
[6] In January 2016, the Respondents served the Applicant with their Small Claims Court Claim. The Applicant contends it was a draft version, not a final document. That was not the finding of Deputy Judge Thurston.
[7] The Applicant was noted in default and the Respondents obtained a default judgment against him. In April 2016, there was a court hearing to assess damages and the Applicant was ordered to pay $16,097 in damages plus costs and court fees of $2,000. This is the first order at issue.
[8] The Applicant received a copy of the endorsement and took steps to retain a paralegal. In August, a paralegal wrote to the lawyer for the respondent indicating that the Applicant was going to bring a motion to set aside the default judgment.
[9] On the return date for the motion, October 18, 2016, no one was present for the Applicant. In turned out that the paralegal had become ill and had not diarized the motion. The Deputy Judge found that the motion was not timely and there was no meritorious defence. The motion was dismissed, giving rise to the second order at issue.
[10] A second motion was scheduled for February 21, 2017. A paralegal swore an affidavit in support of the motion and also attempted to act as counsel on the motion relying on that affidavit, giving rise to a conflict problem. The motion was therefore dismissed without prejudice to bring it again.
[11] On May 12, 2017, the Applicant’s third motion to set aside the default judgment was dismissed on the merits, giving rise to the third order at issue. The Applicant was represented at that motion.
[12] On that third motion, the Deputy Judge conducted a thorough review of the evidence, heard submissions and applied the proper test to set aside a default judgment under Rule 11.06 of the Small Claims Court rules. Under Rule 11.06, the Applicant had to satisfy the court that (1) the Applicant had a meritorious defence; (2) the Applicant had a reasonable explanation for his default; and (3) the motion had been brought as soon as reasonably possible.
[13] On the first requirement, that the Applicant have a meritorious defence, the Deputy Judge considered the evidence and found that his defence was “without merit.” The Deputy Judge found that the Applicant had also failed to satisfy the other two requirements under the Rule.
[14] The Applicant had appeal rights. The record before us does not indicate that the Applicant promptly pursued his appeal rights. However, on June 12, 2017, this application was commenced.
Issues:
[15] The Applicant has raised a number of matters before us, which we have grouped into these issues:
- jurisdiction of the Small Claims Court;
- alleged breaches of the principles of natural justice, and
- other matters.
Jurisdiction:
[16] The Applicant submits that in relation to the first order, the Deputy Judge ought not to have allowed new claims pertaining to real estate fees resulting in the total of the losses surpassing $25,000.
[17] However, the need to be within the $25,000 limit was discussed at the assessment and the amount ordered did not exceed the $25,000 limit. The order of the Deputy Judge is only for $16,097 (plus costs of $2,000). There was no jurisdictional error.
Procedural Fairness:
[18] The Applicant submits that there were breaches of procedural fairness.
[19] In relation to the assessment hearing, the Applicant submits that materials for the assessment were not served on him, but does not recognize that since he was in default under the rules that he was not entitled to any further notice of any future hearings whatsoever.
[20] As well, the Applicant attempts to challenge the approach of the Deputy Judge with respect the evidence, but the record shows that the Deputy Judge was addressing proper procedure with the Respondents. The Applicant has not shown a breach of procedural fairness with respect to the first order that would justify a remedy in a judicial review.
[21] In relation to the third order, the Applicant submits that the Deputy Judge refused to allow Ms. Lafrance to attend the hearing via teleconference, meaning that an unprepared representative would argue the motion, and that the Deputy Judge refused to hear submissions for an adjournment of the May 12, 2017 date due to the teleconference issue.
[22] The adjournment request arose because Ms. Lafrance had not filed the necessary request to attend the motion via teleconference on time and as a result that request was denied. The adjournment was therefore requested. The motion date had been set on consent. The deputy judge ruled that she would not adjourn the motion except on consent. Any request for an adjournment would therefore have to be argued. On the return of the motion it was fully argued by another representative of the Applicant, who did not request an adjournment. At the outset of the hearing the Deputy Judge asked the parties if they were ready to proceed and was told emphatically, yes.
[23] The Applicant has not established that this was a breach of natural justice rather than an exercise of the Deputy Judge’s broad discretion to refuse an adjournment in all the circumstances.
Other Issues
[24] The Applicant further submits that in relation to the third order, the Deputy Judge held him excessively responsible for his counsel’s mistakes and that the oral reasons and endorsement did not properly apply Rule 11.06. As well, the Applicant submits that there was no evidence of service on him. The Respondents had filed the wrong affidavit of the service in their materials, but the correct affidavit of service was filed in the Applicant’s material and was therefore before the Deputy Judge.
[25] These arguments assert errors with respect to the merits of the motion, and ought to have been pursued on an appeal if at all.
[26] The Applicant has not shown an error of jurisdiction or procedural fairness sufficient to justify this court exercising its discretion to grant a remedy in an application for judicial review. The other issue raised are, in essence, an appeal, and cannot be pursued on this application.
Order:
[27] The application for judicial review is therefore dismissed. The Applicant also requests an extension of time to appeal, but that relief is outside the scope of this proceeding.
[28] The Respondents have been successful and request costs, which they are entitled to. We have considered all of the submissions. In all the circumstances of this case, and in the exercise of our discretion, we award $2,500 (all inclusive), payable in 90 days by the Applicant to the Respondents.
Regional Senior Justice H. S. Arrell
I agree
Madam Justice W. M. Matheson
I agree
Mr. Justice G. M. Mulligan
Date of Reasons for Judgment: October 11, 2018
Date of Release: October 11, 2018
CITATION: Haggart v. Cooper, 2018 ONSC 6036
DIVISIONAL COURT FILE NO.: DC-1065/17 DATE: 20181011
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
ARRELL, R.S.J., MULLIGAN, and MATHESON, JJ.
BETWEEN:
RONALD HAGGART Applicant – and – GLENNA COOPER and ALEXANDER COOPER Respondents
ORAL REASONS FOR JUDGMENT
Arrell, R.S.J.
Date of Reasons for Judgment: October 11, 2018
Date of Release: October 11, 2018