CITATION: 774161 Canada Ltd. v. Ford, 2023 ONSC 2145

DIVISIONAL COURT FILE NO.: 249/22

DATE: 20230404

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

774161 CANADA LTD. a.k.a AFFORDABLE CREATIONS

Peter I. Waldmann, for the Plaintiff/Respondent

Plaintiff/Respondent

– and –

ELIZA FORD a.k.a. JEWELRY EXCHANGE

Self-represented, Defendant/Appellant

Defendant/Appellant

HEARD at Toronto: April 4, 2023

leiper J. (Orally)

Overview

[1] The Appellant, Ms. Eliza Ford appeals from a judgment of Deputy Small Claims Court Judge K. Howes. On March 22, 2022, the trial judge granted judgment in favour of the Respondent 774161 Canada Ltd. a.k.a. Affordable Creations in the amount of $17, 918.66.

[2] The Appellant challenges the fairness of the trial, the treatment of Ms. Ford’s adjournment request and the rationale of the trial judge’s findings on damages.

[3] As I explain in these reasons, the trial judge erred in failing to ensure that Ms. Ford was treated fairly during the trial and in making the findings on damages. I allow the appeal and order a new trial.

Background

[4] In July of 2018, Ms. Ford and Mr. Agrawal, the principal of 774161 Ontario Limited entered into a consignment agreement for Ms. Ford to sell jewelry placed with her by Mr. Agrawal at an exhibition in Toronto. Their agreement was noted on a pre-printed form which showed that Mr. Agrawal had placed approximately 39.75 kg of jewelry plus 11 separate unweighed pieces with Ms. Ford.

[5] On the final day of the Toronto exhibition, Mr. Agrawal went to Ms. Ford’s booth to request the return of any unsold jewelry. Ms. Ford was not available because she had other duties related to the exhibition. Her stepson, Zachary, who was working at the booth, spoke with Mr. Agrawal who produced a scale and packaged up the remaining inventory.

[6] Mr. Agrawal initiated a claim against Ms. Ford for unsold and unreturned merchandise, in breach of their agreement. He sought damages in the amount of $22,398.32.

[7] Ms. Ford defended the claim. Her amended statement of defence of December 3, 2018, included copies of her ledgers and receipts from the Toronto exhibition. In October of 2018, her husband, Garnet Irving who had been at the exhibition working as security, delivered a cheque and some additional items to Mr. Agrawal’s lawyer. By then litigation had commenced. The cheque remained uncashed.

[8] The trial was conducted by videoconference on March 21, 2022. Mr. Agrawal was present and represented by counsel. Ms. Ford attended without counsel. Initially, she requested an adjournment to have counsel. After a brief discussion about the adjournment, and following an interjection from Mr. Irving, the trial proceeded with Ms. Ford acting on her own behalf.

Issues

[9] This appeal raises three issues:

(1) Did the circumstances of the adjournment request create any procedural unfairness to the respondent?

(2) Did the trial judge fail to appropriately assist Ms. Ford with the procedural steps required to put forward her defence?

(3) Did the trial judge make a palpable or overriding error in assessing damages?

Standard of Review

[10] The appellate standard of review applies to this appeal, in that questions of law are reviewable on a correctness standard. Questions of fact and questions of mixed fact and law are reviewable on a standard of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, at para. 37.

[11] The standard of review for matters of procedural fairness is correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 DLR (4th) 328, at para. 30.

Preliminary Issue: Fresh Evidence on Appeal

[12] Counsel for Ms. Ford sought to introduce fresh evidence on appeal, in the form of affidavits from Ms. Ford and Mr. Irving. Both of them had testified at trial. The Respondent objected to the admission of this evidence.

[13] I conclude that the evidence does not meet the Palmer test for fresh evidence. These criteria are:

(i) The evidence should generally not be admitted, if, by due diligence, it could have been adduced at trial;

(ii) The evidence must be relevant in the sense that it bears upon a decisive issue in the trial.

(iii) The evidence must be credible in the sense that it is reasonably capable of belief, and

(iv) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

See Palmer v. The Queen, 1979 8 (SCC), [1980] 1 SCR 759.

[14] The affidavits tendered describe Ms. Ford’s dealings with her lawyer prior to trial and her thinking around the adjournment and costs. Given the issues on appeal, which include the trial judge’s conduct of the trial and her assessment of damages, I conclude that the fresh evidence tendered such that it adds to the existing record is not relevant to those issues. For those portions that were repetitive of evidence and submissions that are part of the record, it is not necessary and does not meet the other Palmer criteria. I would not exercise my discretion to admit the fresh evidence.

Analysis of the Issues

1. Did the circumstances of the adjournment request create any procedural unfairness to the Respondent?

[15] The first issue concerns the request for the adjournment.

[16] When this trial began, Ms. Ford told the trial judge that she had retained counsel but had recently learned that her lawyer was not aware of the trial date and was not prepared to represent her. She asked for an adjournment. The trial judge commented that counsel for Mr. Agrawal had said that “his client would agree to an adjournment if you paid him costs of $400, which I don’t think is unreasonable. They’re prepared to proceed today, and you’re not. So, Mr. submitted that he would agree to an adjournment, on payment of costs of $400.”

[17] The transcript filed on appeal did not include the pretrial conversation concerning the adjournment request and counsel’s willingness to adjourn with costs. Counsel advised that that conversation happened informally before the trial proceedings began.

[18] However, the adjournment was not granted because at this point, one of the Appellant’s witnesses, later identified as her husband Mr. Irving, interrupted the proceedings:

UNIDENTIFIED SPEAKER FROM BODY OF COURT: We will proceed.

ELIZA FORD: We will, we’ll proceed?

UNIDENTIFIED SPEAKER FROM BODY OF COURT: We’ll proceed.

ELIZA FORD: Okay. I, we’ll proceed.

UNIDENTIFIED SPEAKER FROM BODY OF COURT: We’re not going to pay money for that.

[19] After this exchange, the trial judge excluded Ms. Ford’s husband as a witness until he gave evidence. The trial judge gave directions to counsel and to Ms. Ford on how to transmit documents to the court through the registrar. The trial proceeded shortly thereafter, with Ms. Ford representing herself. Nothing further was said about Ms. Ford’s adjournment request.

[20] In the reasons for judgment on the trial, the trial judge discussed the adjournment request:

I note also that before the trial commenced the Defendant requested an adjournment in order that her lawyer be able to represent her. For some reason he didn’t know that the trial was supposed to go on that day. However, when the Plaintiff indicated his consent to adjourn but on payment of modest costs, Ms. Ford decided not to pay those costs but to proceed to trial unrepresented.

The Discretion of Trial Judges in Granting or Refusing Adjournments

[21] A reviewing court should show deference to a trial judge’s exercise of discretion in deciding whether to grant an adjournment, and only interfere in circumstances where the trial judge has misdirected themselves or where their decision is “clearly wrong”: See Ontario Securities Commission v. Go-To Developments Holdings Inc., 2022 ONCA 328 at para.11; Khimji v. Dhanani [2004] O.J. No. 200; 12037 (ON CA); 2004 12037 (ON CA), 69 O.R. (3d) 790 at para. 14.

[22] Ms. Ford submits on appeal that having been “abandoned” by her lawyer, the trial judge ought to have adjourned the trial, without any costs consequences to her. She argues that the trial judge’s decision to adjourn the trial only if she paid costs of $400 was a failure to provide accessible justice and means that the decision should be set aside.

[23] I disagree. It would have been open to the trial judge to impose costs as a condition of the adjournment. Mr. Agrawal was present, had retained counsel and was ready to proceed. A trial judge has the discretion to inquire into the grounds for an adjournment and impose conditions, including costs. However, the way in which the adjournment request was addressed in this case was unsatisfactory. It led to a trial, which as I explain below, was not fair to Ms. Ford as a self-represented party. I begin first with the factors that should guide a trial judge in considering an adjournment request.

[24] A trial judge should consider the factors found in Rule 52.02, helpfully expanded upon in Ariston Realty Corp. v. Elcarim Inc., 2007 13360 (ON SC), [2007] O.J. No. 1497 at para. 34. These expanded factors include: the objective of determining a matter on its merits; principles of natural justice, including that justice should be done and be seen to be done, the rationale and circumstances of the request for an adjournment, the consequences of an adjournment on the ability to do justice to the matter, 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, and the need of the administration of justice to orderly process civil proceedings and effectively enforce court orders.

[25] Where parties are self-represented, a trial judge has a special duty to acquaint parties with courtroom procedures and the rules of evidence. They must accommodate self-represented parties who are unfamiliar with trial processes and help them present their case: Dujardin v. Dujardin Estate, [2018] O.J. No. 3545, 2018 ONCA 597, 423 D.L.R. (4th) 731, at para. 37; Gionet v. Pingue, [2018] O.J. No. 6661, 2018 ONCA 1040, 22 R.F.L. (8th) 55, at para. 30; Davids v. Davids, 1999 9289 (ON CA), [1999] O.J. No. 3930, 125 O.A.C. 375 at para. 36.; Manitoba (Director of Child and Family Services) v. A. (J.), [2006] M.J. No. 171, 2006 MBCA 44, at paras. 19-20.

[26] The transcript shows that although the trial judge contemplated an order for costs as a condition of the adjournment, any submissions about those terms, time for payment or ability to pay were preempted by Mr. Irving’s interjection that led to Ms. Ford’s decision to proceed. The transcript reveals that Ms. Ford showed some uncertainty about proceeding. She was not aware that her husband would need to be excluded until his evidence was tendered. The trial judge had observed that Mr. Agrawal was ready to proceed “and you’re not.” These factors required that the trial judge provide some assistance to Ms. Ford before embarking on a trial. The duty to assist an unfamiliar litigant involved includes providing basic information about the process for asking for an adjournment, the factors that a judge must consider in deciding whether to grant an adjournment and the potential terms, including how costs may be part of that process.

[27] The trial judge ought to have excluded Ms. Ford’s witness, and then address the adjournment request made by Ms. Ford. Minimally, the trial judge should have ensured Ms. Ford understood her options before proceeding to trial without counsel, including her right to make submissions on the terms of an adjournment. This did not need to unduly lengthen the trial, but it would have ensured that Ms. Ford had the information necessary to make an informed decision on whether to pursue the adjournment request or elect to proceed to trial. This was a critical choice point, informed by the duty of a trial judge toward self-represented individuals. As I discuss in the second issue raised in this appeal, Ms. Ford did not receive the assistance about procedure that she was owed, leading to evidence being excluded from consideration that could have had a bearing on the trial.

(2) Did the trial judge fail to appropriately assist Ms. Ford with the procedural steps required to put forward her defence?

The Commencement of the Trial

[28] The trial proceeded. There were several issues at the beginning which revealed Ms. Ford’s unfamiliarity with the process and how to put forward her case. First, the trial judge advised the parties that she did not have all the material. She stated that “most trials are complicated because you have to get all of your evidence, both sides, to me.” The trial judge provided instructions for sending any missing documents through the registrar by way of email and recessed court for 20 minutes to allow that to happen. On returning, the trial judge acknowledged receipt of certain documents from counsel to Mr. Agrawal and told Ms. Ford that the copies she had sent could not be accessed because they were photographs of documents. However, the trial judge did not tell the parties what she had received or offer any assistance in how to provide the missing documents.

[29] Second, before evidence was called, Ms. Ford and the trial judge had an exchange about the videoconference and documents to be received in evidence:

THE COURT: Okay. That’s what I thought it would be, but sometimes it’s something I need to know about. All right. So, thank you very much again for sending it in. Ms. Ford, maybe you could turn on your video so we can see you.

ELIZA FORD: Okay. Sorry, I’m not very good at this.

THE COURT: Well, nobody is. It’s a new world, so.

ELIZA FORD: I’m not sure how I do this. I can see everybody. I can see everything else. Hang on one second. Settings....

THE COURT: Documents which everybody sent to me, I haven’t received it in evidence yet. But since you sent it to me, if you decide to rely on it, you want it to go into evidence, just identify it and I’ll pull it up from what you sent me and then we can deal with it that way. And you can put....

[30] At this point, counsel for Mr. Agrawal interrupted the trial judge to describe the evidence that he intended to call at trial, and to ask what witnesses Ms. Ford intended to call. The trial judge gave no further information to Ms. Ford about courtroom procedure, how to tender documents as part of the record, or any information about how to participate in the trial including the videoconference expectations. Ms. Ford was not told she could ask the trial judge if she had questions about procedure. This is information that the trial judge ought to have given to Ms. Ford as a self-represented litigant, unprepared to conduct a trial on her own.

The Evidence for the Plaintiff

[31] The essence of Mr. Agrawal’s evidence at trial was that Ms. Ford agreed to sell 39.75 kg of his silver jewelry at exhibitions in Toronto and Edmonton, but later changed her mind about selling any of it in Edmonton. On the final day of the Toronto exhibition, where he also had set up a booth, he asked for the unsold amounts to be returned to him. He testified that he only received 20.821 kg of silver jewelry back, which he weighed at the show in Toronto when he retrieved it.

[32] Mr. Agrawal testified that Ms. Ford was “around,” meaning at the show, when he took back his unsold jewelry. He described weighing the jewelry on the same scale he had used when the consignment agreement was formed. He also testified that Ms. Ford’s employee, Zach made notes of the weights and agreed to send that information to Ms. Ford. Mr. Agrawal produced a security photo showing himself at the booth with Zach when he attended to retrieve the unsold jewelry.

[33] According to Mr. Agrawal, Ms. Ford later told him by email that she had only sold 600.63 grams of jewelry at the Toronto exhibition, thus she owed him $788.97. This email correspondence was tendered at trial by Mr. Agrawal. He also testified that Ms. Ford told him that some of his jewelry was not at the Toronto exhibition, but at her home, but that later, she claimed he had retrieved all the jewelry.

[34] With that, counsel for Mr. Agrawal closed his case.

The Evidence of Ms. Ford and the Ruling on the Admissibility of the Cheque

[35] Ms. Ford testified next in her defence. She described how consignment agreements are made, her role with the Toronto Exhibition as a Director of C J Expos, which runs jewelry exhibitions in Toronto and Edmonton. She confirmed the consignment agreement she made with Mr. Agrawal, and her expectation that they would meet after the show in Edmonton at her office to weigh the remaining silver, using the same scale, and settle the agreement based on their terms. The point of dispute was that during the final hours of the Toronto Exhibition, Ms. Ford did not agree to have Mr. Agrawal retrieve his unsold product, and was not present for the weighing of it, which is the usual practice.

[36] Based on her records, Ms. Ford testified that she prepared a cheque for what was sold and returned product that she described as “broken product, that didn’t go to the show, because it was not suitable, that’s what was returned, with the cheque” to Mr. Agrawal’s lawyer’s office. After describing the cheque, the trial judge informed Ms. Ford that she should “put that in” to evidence. Mr. Waldmann objected because he said he had not seen the cheque, or the bin. Ms. Ford testified that it had been hand delivered to his office.

[37] The trial judge informed Ms. Ford that “You can’t put anything in evidence that you haven’t already given to the Plaintiff. And Mr. Waldmann has just said that you have not given him a picture of the bin...”

[38] Ms. Ford told the trial judge that she did not realize she had to provide a picture of those items to the defence if they had been hand-delivered to counsel.

[39] The trial judge ruled on the admissibility of the cheque as follows:

[Y]our sworn testimony is that you did deliver the cheque, but I’m not going to receive a copy into evidence because you should have provided it. Any evidence on which you’re relying today, documentary evidence, you should’ve provided to the Plaintiff well in advance of the trial. Do you have any other documentary evidence that you’re proposing to submit today, which you have not given to Mr. Waldmann?

[40] As a self-represented litigant, who had initially sought an adjournment of the trial and was unfamiliar with the expectations for tendering documentary evidence, Ms. Ford was not treated fairly on the issue of the admissibility of the cheque. The trial judge did not inquire into receipt of the cheque by Mr. Agrawal’s lawyer, nor consider her ability to do justice under the Rules of the Small Claims Court, including r. 1.03 which provides:

1.03 (1) These 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. O. Reg. 258/98, r. 1.03 (1).

[41] In the reasons for decision, the trial judge appeared to accept the evidence of Ms. Ford that she had delivered the cheque to Mr. Waldmann, but that it had not been cashed.

The Failure to Admit Evidence of the Records of Jewelry Sold at the Toronto Exhibition

[42] Counsel for Mr. Agrawal cross-examined Ms. Ford at trial, and in response to questions about the jewelry sold at the Toronto Exhibition, she testified that she had receipts and records supporting her evidence of the jewelry sold from her booth.

[43] This led to an exchange with counsel as follows:

Q. All right. And do you have the invoices?

A. We do, and I believe that was also sent to the Judge.

THE COURT: You didn’t submit it as evidence.

A. It was in there. It was emailed on Thursday?

THE COURT: I’m sorry, this is where there is often a confusion, Ms. Ford, about what is evidence. And that, I understand why you would be confused by it. But if you sent it into the Court...

A. Yes.

THE COURT: ...but that doesn’t mean that you’re going to then tell me to accept it as an exhibit. Why I asked you if you wanted to put anything in as an exhibit, that you did not mention that.

A. Okay.

[44] The trial judge did not assist Ms. Ford with her understanding of what could be put into evidence, what could be made an exhibit, despite acknowledging that this is a confusing area.

[45] After hearing additional evidence from Ms. Ford, including about a ledger kept of the sales from the booth, the trial judge suggested that she make sure that her booth employee and stepson Zach put the ledger and invoices in as evidence. The trial judge did not explain how this process would work. The comment that the witness should put the records into evidence was confusing, given that this is the role of the party or their counsel.

[46] When Zach testified, Ms. Ford did not attempt to tender the invoices or ledger. The trial judge did not raise the issue or ask Ms. Ford if she meant to tender those records during his evidence.

[47] After all of the evidence was complete, Ms. Ford asked the trial judge if she had received the documents, that is the ledger and the receipts which Ms. Ford had sent to the registrar. At that point, Mr. Waldmann objected that the case was closed and no new exhibits should be received by the court.

[48] The trial judge observed:

THE COURT: It wasn’t entered as an Exhibit but, I’m going to, just let me see what it is you’re talking about. I know it’s a difficult process for unrepresented parties. On the other hand, you could have had an adjournment today, and had your lawyer here. So, you did submit some things to the....

ELIZA FORD: Court on the 17th.

THE COURT: Uh-huh.

ELIZA FORD: And they were the ledgers, the receipts, my flight to Edmonton and a report from the owner of the show.

MR. WALDMANN: Well, this is opening up from the beginning, right?

THE COURT: I know it is, I know.

ELIZA FORD: Okay, well I, those were all articles that were along part of the trial right from the beginning. So, if it can’t be accepted, well, but I thought Mr. Waldmann was in copy of all of that information from originally.

THE COURT: He probably was, because you were supposed to give him copies of everything upon which you would be relying in the trial. Today’s the trial...

ELIZA FORD: Yeah.

THE COURT: ...and I didn’t know anything about this, as it was clear, because I didn’t even have the Claim or the Defence. And it’s now for you to enter into evidence anything that you think I should review. You didn’t enter these things into evidence. I haven’t read them, I don’t know what they say. Mr. Waldmann is correct that you had your opportunity to do that and I do have to remind you that he was prepared to grant you an adjournment...

ELIZA FORD: Okay.

THE COURT: ...so that you could have a lawyer here to assist you...

ELIZA FORD: Okay.

THE COURT: ...and you decided to proceed on your own. So, I’m not going to accept that evidence now.

[49] I conclude that the trial judge did not render sufficient procedural assistance to Ms. Ford in how to tender documents which had been exchanged in advance of trial, appeared to be relevant to her defence and had not been tendered solely because Ms. Ford was acting without counsel.

[50] In the reasons for judgment, the trial judge commented that Ms. Ford had not led evidence as to how much of Mr. Agrawal’s silver she had sold at the Toronto Exhibition. The trial judge said:

“She had filed some documents with the trial office in advance of the trial but did not adduce them as evidence at the trial. It is acknowledged that unrepresented parties are often confused as to why the evidence must be presented at a virtual trial if it has already been submitted electronically to the trial office. In recognition of this I pointed out to Ms. Ford that she may want to put this evidence into her upcoming witness Zach, having failed to enter it during her own testimony, but she did not do so.”

[51] The trial judge went on to repeat what she had said during the trial, that Ms. Ford could have had a lawyer present but had decided to go ahead without counsel.

[52] This juxtaposition of ideas, combined with the trial judge’s comment during trial that “you could have a lawyer here to assist you” suggests that Ms. Ford was at fault for not adjourning the trial to have counsel. It also appears to blame Ms. Ford for not knowing how to tender documents or remembering that the judge had told her to have “Zach” put in the ledger document and invoices.

[53] Counsel for the Respondent submits that these documents could not have helped Ms. Ford, given his client’s evidence about the weighing of the jewelry which was more reliable evidence as to the amounts turned over and then retrieved. In essence, he submits there was no prejudice to Ms. Ford by the exclusion of these records.

[54] I disagree. Even if not dispositive of the claim, the records related to the items in question, were apparently made contemporaneously with sales, and may have had a bearing on the credibility of the parties as to the events involved. The objection to their admission was purely technical and not substantive. The trial judge referred to their absence in her reasons for decision. The transcript bears out that at several points Ms. Ford mentioned these records and sought to have them considered. Her failure to adduce them during evidence was a result of her unfamiliarity with the process, and a lack of guidance from the trial judge in the face of that unfamiliarity.

[55] Justice must be done, and it must be seen to be done. I conclude that the treatment of the ledger and the invoices is a further example of the trial judge failing to ensure that the trial was fair from the perspective of both parties, and in ensuring that Ms. Ford as a self-represented party was not prejudiced by her lack of familiarity with trial procedure.

The Display of the Scale Used to Weigh Jewelry at the Exhibition and the Reply Evidence from Jenna Karaman

[56] Ms. Ford also submits that the trial judge erred in admitting evidence from Mr. Agrawal showing a photograph of the scale which he testified was used to weigh the jewelry.

[57] She further submits that the evidence from Ms. Karaman was not appropriate reply evidence as it served only to corroborate Mr. Agrawal’s description of the weighing process at the Toronto Exhibition. Ms. Ford submits that the treatment of Mr. Agrawal’s evidence was treated more favourably than the evidence that she sought to tender.

[58] Given my findings above related to the treatment of Ms. Ford as a self-represented litigant it is not necessary to consider these additional issues.

(3) Did the trial judge make a palpable or overriding error in assessing damages?

[59] Although the trial fairness issues are sufficient to dispose of this appeal, I make the following observations about the approach adopted by the trial judge to the award of damages in this case.

[60] The trial judge found that the Plaintiff had established a claim to the difference between the amount of silver consigned to Ms. Ford for sale and the amount he claimed to have retrieved in his email to her on the day after the Toronto Exhibition. The trial judge found as fact that there was less silver retrieved than had been deposited under the consignment agreement. However, the trial judge also went on to find issues with the proof of that amount, arising from several factors:

• Mr. Agrawal’s failure to retain his written record as to the weights of the silver retrieved at the Toronto Exhibition;
• contrary to Mr. Agrawal’s evidence that he used the same scale to weight the silver, the trial judge found that a different scale was used to weigh the silver at the Toronto Exhibition;
• Ms. Ford did not state that she had retained any of the jewelry at her home, a fact which the trial judge held was central to the evidence. This comment does not appear to accord with a plain reading of the transcript which has Ms. Ford testifying as follows:

Q. Did you have any material at home?

A. We had broken product pieces and plastic bags and a bin.

Q. So you had nothing valuable, you’re saying....

A. Nothing valuable, no. No, that never would never have been left in a home.

• The trial judge concluded that Ms. Ford had retained some of Mr. Agrawal’s jewelry

[61] In the end, the trial judge concluded that “the Plaintiff has a problem proving his damages due to its use of different scales, the vagueness of the consignment memo and the absence of the Defendant or her employee to the weighing in process. The amount shown on exhibit 1, the consignment memo, add[s] up to 42.2 kilos. The Plaintiff’s claims cited a different amount and the Plaintiff at trial testified that the weight was at least 40 kilos. “

[62] The trial judge calculated damages by accepting the original amount deposited as 42.2 kilos at 1.19 per gram for a value of $50,218.00. She accepted Mr. Agrawal’s evidence that he retrieved 20.821 kg for a difference in value of $24,777.00. However, the trial judge then factored in the claim on the face of the Statement of Claim: $22, 398.32. She commented that “the difficulty in proof is not a bar to obtaining judgment.” The trial judge found in favour of the Plaintiff, but then took the proof problems into account by discounting the judgment by 20% for a total judgment in favour of the Plaintiff of $17,918.66.

[63] The parties were entitled to have findings of fact, and credibility made. The trial judge was bound to apply the civil standard of proof to the evidence, with the burden on the Plaintiff. The issues with proof and the application of a judicial discount to address those issues were not the subject of submissions.

[64] Again, this raises a question of trial fairness, as well as introducing an element of arbitrariness into the calculation of damages. I conclude that substantively and procedurally, the trial judge erred in the assessment of the evidence and the calculation of damages.

Conclusion

[65] I conclude that Ms. Ford did not receive a fair trial. In the circumstances the appropriate remedy is to order a new trial, before a different Deputy Judge of the Small Claims Court.

[66] Costs are awarded in favour of Ms. Ford, payable by the Respondent in the amount of $6,000.

___________________________ LEIPER J.

Date of Oral Reasons for Judgment: April 4, 2023

Date of Written Release: April 5, 2023

CITATION: 774161 Canada Ltd. v. Ford, 2023 ONSC 2145

DIVISIONAL COURT FILE NO.: 249/22 DATE: 20230404

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

774161 CANADA LTD. a.k.a AFFORDABLE CREATIONS

Plaintiff/Respondent

– and –

ELIZA FORD a.k.a. JEWELRY EXCHANGE

Defendant/Appellant

ORAL REASONS FOR JUDGMENT

leiper J.

Date of Oral Reasons for Judgment: April 4, 2023

Date of Written Release: April 5, 2023