ONTARIO
A. SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
RICARDO GRENNAN
Self-represented, for the Appellant
Appellant
- and -
LYSA LECKY
Ryan J. Manilla, for the Respondent
Respondents
HEARD: November 23, 2018, at Brampton
REASONS FOR JUDGMENT
[On appeal from a Decision of Deputy Judge P. Kaler of the
Small Claims Court at Brampton delivered August 4, 2017]
DENNISON J.
A. Overview
1Mr. Grennan appeals Deputy Judge Kaler’s decision finding that Ms. Lecky did not owe Mr. Grennan $5,302.89 for purchases that she made on his credit card, as well as interest owed.
2In the appeal book, Mr. Grennan included numerous text messages that were not part of the record at trial. I explained to Mr. Grennan that he had two options. One option was to request an adjournment and bring a proper application to seek to have the fresh evidence admitted. His other option was to proceed with the appeal that same day, but in that case, I would not consider the text messages. Mr. Grennan decided that he wanted to his appeal to proceed. As such, I did not consider any of the additional text messages that Mr. Grennan filed in his appeal book.
3After having considered the evidence and the reasons for judgment, the appeal is dismissed for the reasons set out below.
B. Evidence at Trial
1. Mr. Grennan’s Evidence
4Mr. Grennan testified that in January 2011, Ms. Lecky asked him to take her to Ikea to purchase some furniture using his MasterCard credit card (“credit card”) as he had just obtained it. Ms. Lecky purchased furniture from Ikea. He further testified that after this, she used the credit card to make unauthorized purchases online and used it to pay for her school.
5Mr. Grennan testified that he and Ms. Lecky were best friends. He asked to move into Ms. Lecky’s home after his son died, as it was a difficult time for him. He moved in with Ms. Lecky in November 2013. He stated that he was not living with her in a relationship. However, in cross-examination he agreed that they were friends with benefits and admitted that they lived as a couple.
6Mr. Grennan stated that he brought the unpaid amounts on the credit card to Ms. Lecky’s attention and she agreed that she would pay what she owed as a result of her using the credit card.
7Mr. Grennan also testified that he bought Ms. Lecky a car on the basis that the car price was a loan. She did not pay him back. Mr. Grennan then sold Ms. Lecky’s old car for $1000. Rather than keep the proceeds of that sale to repay the loan she owed him, he put $900 of that money towards the credit card. Mr. Grennan brought a small claims action in relation to the car loan that was dismissed.
8Mr. Grennan testified that he moved out of Ms. Lecky’s home in July 2014. At some point in 2015 they stopped talking. She blocked his calls and texts. He therefore left her a letter in 2016 saying she owed the balance of the money on the credit card, which was $5,069.72 at that time. The balance due on the credit card as of April 2017 was $5,699.26.
9At trial, Mr. Grennan filed credit card statements from January 2011, February 2011 and May 2012 to July 2012, September 2012, October 2012 and November 2013. He also filed credit card statements from June 24, 2015 and May 2017 and June 2017.
2. Ms. Lecky’s Evidence
10Ms. Lecky testified that she met Mr. Grennan in 2001 and they started a sexual relationship. Mr. Grennan was already in a relationship and living with his partner. They had plans to move in together in 2011 when she purchased her home, but that did not occur at that time.
11In 2011 when Ms. Lecky purchased her house, she asked to use his credit card to purchase items from Ikea. She also testified that she used it to pay for school. She used it to purchase a purse and to book a hotel room in New York for a trip that they planned to take together. That trip did not occur as Ms. Lecky could not cross the border. Ms. Lecky testified that Mr. Grennan knew she was using his credit card.
12Mr. Grennan eventually moved in in November 2013. He paid for hydro, water and gas bills. He was not consistent in what he paid so she paid for the bills as well.
13Ms. Lecky testified that during their relationship she gave Mr. Grennan $1000 when he was charged with a DUI. She also testified that when she sold her car for $1000 she gave the money to him as they agreed to put that money towards the credit card. She agreed that $900 was put towards the credit card bill.
14Ms. Lecky was not happy in the relationship and cheated on Mr. Grennan, so he moved out.
15Ms. Lecky agreed that in December 2015 she ceased all contact with Mr. Grennan. She was not happy in the relationship and Mr. Grennan kept bugging her to pay the credit card. She kept paying the credit card up to February of 2017. At that point, she calculated how much she had paid and realized that she paid more than she owed.
16Ms. Lecky submits that she has paid what was owed on the credit card. She provided the last two years of her bank statements that show that she has paid $3,000 towards the credit card.
C. Deputy Judge’s Decision
17The deputy trial judge’s reasons are short and succinct. He summarized the testimony of Mr. Grennan and Ms. Lecky and the exhibits filed at trial. He dismissed the plaintiff’s claim as follows:
Ricardo stated that the credit card was new and was used first time by Lysa in January 2011. Had that been the case, then the February-March 2011 statement would not have cash advance of $420.00 and a previous balance of $587.23 showing (Exhibit “3”) herein.
If find the testimony of Lysa over that of Ricardo. I believe that the parties were in a relationship. I further find that Lysa had been paying towards the credit card and paid whatever was agreed upon to be paid.
18The plaintiff’s claim was dismissed and no order for costs was made.
D. Standard of Review
19The jurisdiction for this appeal is found in section 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended. That section provides as follows:
- An appeal lies to the Divisional Court from a final order of the Small Claims Court in an action,
(a) for the payment of money in excess of the prescribed amount, excluding costs; or
(b) for the recovery of possession of personal property exceeding the prescribed amount in value.
20Section 2 of the Small Claims Court Jurisdiction and Appeal Limit, O. Reg. 626/00 provides as follows:
- (1) For the purposes of clause 31 (a) of the Act, the prescribed amount is $2,500.
(2) For the purposes of clause 31 (b) of the Act, the prescribed amount is $2,500.
21The normal principles of deference apply to appeals from decisions of the Small Claims Court. In short, I may substitute my own view of the evidence and draw my own inferences only if the lower court committed a palpable and overriding error or made findings of fact or drew inferences that are clearly unreasonable or unsupported by the evidence: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 .
E. Analysis
22The appellant submits that the deputy trial judge erred in finding that the defendant had paid the monies owed by her on the credit card and that the deputy trial judge’s decision in this respect is unreasonable.
23I do not find that the deputy trial judge made an overriding and palpable error in finding that Ms. Lecky had been paying towards the credit card and paid the amount agreed upon. Similarly, I do not find the deputy trial judge’s conclusion that she paid the monies she owed to be unreasonable based on the evidence before him.
24Ms. Lecky testified that she paid back the money that she owed:
I’ve paid the bill consistently since 2011 of January and I stopped paying it in February [2017], because when I had summed up how much I’d paid over the time, I’ve more than –what I incurred, Mr. Grennan has never paid any monies towards the credit card.
25It was open to the deputy trial judge to find that Ms. Lecky had been paying money towards the credit card bills. Her testimony was supported by the banking records she filed. These records showed she paid $3,000 to the credit card between 2015 and 2017. Ms. Lecky testified that she printed off the bank statements that she could access from her online banking accounts. Ms. Lecky’s bank statements from TD bank from August 20, 2015 to February 2017 showed that she paid a total of $1,400 towards the credit card. Her bank statements from her Scotia Bank account from March 12, 2015 to February 2017 showed that she made payments to the credit card totaling $1,600.
26The select credit card statements that Mr. Grennan filed also showed that payments were made on the credit card.
27In addition, the select credit card statements Mr. Grennan filed showed that other items were purchased using the credit card that were not attributed to Ms. Lecky. Without all of the statements, it is unknown what other expenses were on the credit card and what payments were made, making it difficult to determine who incurred the interest amounts on the credit card. The onus was on Mr. Grennan to establish that Ms. Lecky used the credit card improperly and did not pay back what was owed including interest. It was open to the deputy trial judge to find that he did not meet that onus.
28The trial judge’s reasons, while brief, also sufficiently explained why he preferred Ms. Lecky’s evidence over Mr. Grennan’s evidence with respect to the monies that were paid towards the credit card.
29First, the deputy trial judge found Mr. Grennan was not truthful when he testified that the credit card was new when Ms. Lecky used it for the first time in January 2011. The credit card statement showed that there was a previous cash advance of $420.00 and a previous balance of $587.23. This evidence showed that Mr. Grennan also used the credit card as there was no suggestion that Ms. Lecky had used it prior to January 11, 2011.
30Secondly, the deputy trial judge accepted Ms. Lecky’s evidence that the parties were in a relationship. Mr. Grennan stated in his examination in-chief that they were just friends. He tried to downplay the nature of his relationship with Ms. Lecky in his evidence. In cross-examination, he agreed that they were best friends with benefits. Eventually he admitted that they were a couple when they were living together. This is also relevant with respect to the New York hotel expense, as it was Ms. Lecky’s evidence that they were both planning on going to New York for her birthday.
31I also note that the credit card statement dated October 24, 2012 corroborates Ms. Lecky’s evidence that she used the credit card to pay for her university tuition and that she paid it back. The credit card statement shows a debit to Athabasca University of $1,406.00. That same bill and the next month’s bill show credit card payments between October 1 and November 14 that totaled $1,750.00.
F. Conclusion
32I do not find that the deputy trial judge made a palpable or overriding error in his assessment of the evidence, nor do I find his decision unreasonable. The evidence discloses that Ms. Lecky paid $3,000 between August 2015 and February 2017 from her bank accounts to the credit card. In addition, Ms. Lecky testified that she had been paying the bill consistently since 2011. She also testified that $900 from the sale of her car was put towards the credit card and that she gave Mr. Grennan $1,000 for a DUI charge he faced. It was open to the deputy trial judge to prefer the evidence of Ms. Lecky over the evidence of Mr. Grennan. The appeal is dismissed.
G. Costs
33I have considered the cost submissions made by the parties. I have taken into account the factors enumerated under Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, including the time spent, the result achieved and the complexity of the matters, as well as the application of the principle of proportionality. In addition, I have considered the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71.O.R. (3d) 291 (Ont. C.A.) and Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, that consider that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances as opposed to an amount fixed by actual costs incurred by the successful litigant.
34I conclude that costs in the amount of $1,600 are reasonable in the circumstances. I order the plaintiff to pay this amount within 30 days.
Dennison J.
Released: January 16, 2019
CITATION: Grennan v. Lecky, 2019 ONSC 452
COURT FILE NO.: DC-17-88-00
DATE: 2019 01 16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
RICARDO GRENNAN
Appellant
- and -
LYSA LECKY
Respondents
REASONS FOR JUDGMENT
[On appeal from a Decision of Deputy Judge P. Kaler of the Small Claims Court at Brampton delivered August 4, 2017]
Dennison J.
Released: January 16, 2019