CITATION: Ramlochan v. Somodi, 2023 ONSC 269

DIVISIONAL COURT FILE NO.: 203/22 & 108/22

DATE: 20230112

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Emile Ramlochan, Plaintiff/Appellant

AND:

Zsolt Somodi, Joseph Siracusa, and Steven Diotalevi, Defendants/Respondents

BEFORE: Nishikawa J.

COUNSEL: Emile Ramlochan, in person

Samantha Coomara, for the Defendant/Respondent Zsolt Somodi

Peter A. Simm, for the Defendant/ Respondent Joseph Siracusa

W. Xavier Navarette, for the Defendant/ Respondent Steven Diotaveli

HEARD at Toronto: November 21, 2022

ENDORSEMENT

Overview

[1] The Appellant, Emile Ramlochan, appeals two decisions of the Small Claims Court. The first appeal (Court File No. 108/22) relates to Deputy Judge Prattas’ costs order dated January 4, 2022 (the “Costs Order”) ordering that the Appellant pay the costs of a nonsuit motion successfully brought by one of the Respondents, Joseph Siracusa. The second appeal (Court File No. 203/22) is of the deputy judge’s order dated February 10, 2022 dismissing the Appellant’s action against the Respondents, Steven Diotalevi and Zsolt Somodi, and a numbered company. The Appellant asks the court to set aside both decisions on the basis of errors allegedly made by the deputy judge and a reasonable apprehension of bias.[^1]

Factual Background

[2] In April or May 2014, the Appellant took his car to a garage for certain repairs. The Appellant did not communicate with the garage for over a year because he was out of the country. The Appellant then lost track of the vehicle and failed to follow-up for several years. Meanwhile, the vehicle was transferred to different repair shops and storage facilities without adequate records being maintained.

[3] Based on the failure to return the vehicle, on February 22, 2019, the Appellant commenced an action in Small Claims Court against the Respondents and three others for fraudulent misrepresentation and other causes of action. The Appellant sought $25,000 in damages. Mr. Somodi and Mr. Diotalevi are in the auto repair business. Mr. Siracusa is the owner of a bailiff company. The Appellant dismissed the action against three of the six defendants. The Appellant later commenced a separate action in the Small Claims Court against a corporation of which Mr. Somodi is owner and director, 1843394 Ontario Ltd., c.o.b. Niki Auto Motor (“Niki”).[^2] In that action, the Appellant sought $35,000 in damages for conversion, breach of bailment, fraudulent misrepresentation, loss of use of the vehicle and quantum meruit.

[4] The two actions were heard together. The trial commenced on January 22, 2020 and ended on October 12, 2021, after fourteen sitting days. During this time, the Appellant commenced and then agreed to dismiss five new actions. Some of the new actions were against the existing defendants.

The Decisions

The Nonsuit and Costs Orders

[5] At the close of the Appellant’s case, Mr. Siracusa brought a nonsuit motion. On October 4, 2021, the deputy judge granted the motion, holding that the Appellant had failed to make out a prima facie case of fraudulent misrepresentation against Mr. Siracusa, with reasons to follow (the “Nonsuit Order.”) The Appellant’s claim against Mr. Siracusa was dismissed. On October 12, 2021, the deputy judge heard submissions on costs of the motion. The deputy judge delivered the Costs Order, with written reasons for both the Nonsuit Order and the Costs Order, on January 4, 2021 (the “First Decision”).

[6] In the First Decision, the deputy judge rejected the Appellant’s argument that no costs should be awarded because he did not have advance notice of the nonsuit motion. The deputy judge also held that it was an appropriate case to exceed the cap on costs set out in s. 29 of the Courts of Justice Act, R.S.O. 1990, c. C.43, because, as provided in Rule 19.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the Appellant’s conduct was unreasonable and had prolonged the proceedings. The deputy judge assessed fair and reasonable costs at $6,750, all-inclusive.

The Final Order

[7] After the trial, the deputy judge dismissed the actions against the other defendants in his lengthy and detailed reasons dated February 18, 2022 (the “Second Decision.”). Although the deputy judge found that the defendants were not blameless in that they failed to keep adequate records, he concluded that the Appellant “was most assuredly the author of his own misfortune.” The deputy judge found that the Appellant had paid $5,000 in storage fees. He ordered that the Appellant pay $4,300 to Mr. Somodi based on evidence that since January 2019, the Appellant was aware of a charge for storage fees. The deputy judge did not award any costs based on his finding the conduct of all parties to be poor and unreasonable.

Issues

[8] The appeals raise the following issues:

(a) Is the appeal of the Costs Order properly before this court?

(b) Did the deputy judge make a palpable and overriding error in finding that the Appellant behaved unreasonably?

(c) Was the proceeding fair to the Appellant?

(d) Did the deputy judge err in making findings on issues that had not been pleaded?

Analysis

The Standard of Review

[9] On appeal, the standard of review on questions of law is correctness. On questions of fact and mixed law and fact, the standard of review is palpable and overriding error, unless there is an extricable legal principle, in which case the standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33, at paras. 8, 10 and 36. Issues of procedural fairness are also reviewed on a correctness standard of review: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at paras. 29-30.

Is the Appeal of the Costs Order Properly Before This Court?

[10] Mr. Siracusa takes the position that the Appellant’s appeal of the Costs Order is not properly before this court because the Appellant failed to appeal the Nonsuit Order within 30 days after the order was made. Mr. Siracusa submits that the appeal is only as to costs and, pursuant to s. 133(b) of the Courts of Justice Act, would require leave, which the Appellant did not seek or obtain.

[11] The Court of Appeal has held that “a decision on the merits is final for the purpose of appeal when it is rendered, notwithstanding the pendency of the determination of the costs attributable to the case”: Byers v. Pentex Print Master (2003), 2003 42272 (ON CA), 62 O.R. (3d) 647, at para. 17 (C.A.).

[12] The Nonsuit Order dismissing the Appellant’s claim against Mr. Siracusa was made on October 4, 2021, with reasons to follow. The Appellant made no attempt to appeal the order granting Mr. Siracusa’s nonsuit motion within the time required under the Rules of Civil Procedure, which would have been by November 3, 2021. In fact, the notice of appeal mentions only the order dated January 4, 2022 and not the October 4, 2021 order. The fact that the Costs Order and the First Decision were not provided until January 4, 2022 does not automatically extend the time to appeal. The Appellant did not bring a motion for an extension of time to appeal the Nonsuit Order. As a result, the Appellant is out of time to appeal the Nonsuit Order.

[13] Because the Appellant is out of time to appeal the Nonsuit Order, the appeal is only as to costs. Under s. 133(b) of the Courts of Justice Act, the Appellant was required to seek leave to appeal the Costs Order. Because no leave was sought, the costs appeal is not properly before this court: Harris v. Leikin Group Inc., 2014 ONCA 479, at para. 42.

Did the Deputy Judge Make a Palpable and Overriding Error in Finding that the Appellant Behaved Unreasonably?

[14] The Appellant disputes the deputy judge’s finding, made in both the First Decision and Second Decision, that he behaved unreasonably at trial. That finding relates only to the issue of costs of both the nonsuit motion and the trial. As a result, my finding above that the costs appeal is not properly before this court, I need not address the Appellant’s argument that the deputy judge erred in finding that he behaved unreasonably, thus justifying a costs award in excess of the limit under s. 29 of the Courts of Justice Act.

[15] In respect of the Second Decision, the finding that the Appellant behaved unreasonably was of no consequence because the deputy judge, finding that all parties or their legal representatives behaved poorly and unreasonably, ordered no costs against him.

[16] In any event, the deputy judge’s finding that the Appellant acted unreasonably is a finding of fact subject to the standard of palpable and overriding error. The Appellant has identified no such error. Moreover, the deputy judge’s finding is amply supported by the record. As noted by the deputy judge, the Appellant did not respect evidentiary rulings and equated evidentiary rulings against him with bias; alleged multiple times that the deputy judge was biased only to apologize and then repeat the allegation; refused to consent to an adjournment resulting from a death in the family of one of the legal representatives; commenced five new actions raising the same issues during the trial; and, in closing submissions, sought exemplary damages against the parties’ legal representatives and other damages in excess of the Small Claims’ Court’s jurisdiction. Even if the costs appeal were properly before this court, I would see no reason to interfere with the Costs Order.

Was the Proceeding Fair to the Appellant?

[17] The Appellant submits that the deputy judge lacked impartiality and that the proceeding was not fair to him because the deputy judge interjected and instructed Respondents’ legal representatives to make objections during the Appellant’s cross-examination and structured the hearing in a manner that disadvantaged him and provided an advantage to the Respondents. The Appellant further submits that the deputy judge failed to act impartially by “commenting, bullying, coercing and verbally abusing the Appellant into agreeing with [his] views, and submitting arguments of his own without supporting evidence[.]” The Appellant further alleges that the deputy judge created or altered evidence.

[18] The Appellant has failed to demonstrate a reasonable apprehension of bias on the part of the deputy judge. While the Appellant referenced pages of the transcript to support his allegations, he has provided no specific examples of the deputy judge coercing, bullying or otherwise treating him unfairly. A review of the pages identified by the Appellant does not reveal such behaviour, or comments that would suggest that the deputy judge had determined the issue prematurely. See Guerette v. Demetrios, 2001 21211 (Ont. C.A.).

[19] The Appellant’s submission that the trial was conducted in an unfair manner reflects a fundamental misunderstanding of the trial process and the role of the trial judge. A trial judge is required to control the court’s process, to ensure that the trial moves forward, to clarify the evidence, to explain procedural steps and to suggest that a self-represented litigant seek legal advice. The deputy judge asked questions to clarify the Appellant’s evidence, asked for submissions before making evidentiary rulings, and then made the required rulings. That the Appellant disagreed with the rulings does not establish bias. In addition, the deputy judge’s questions regarding the numerous additional proceedings commenced by the Appellant on the same issue raised legitimate concerns about duplicative and unnecessary proceedings.

[20] Unlike the case relied upon by the Appellant, Watterson v. Canadian EMU, 2016 ONSC 6744, the deputy judge took steps to ensure that the Appellant understood the process, for example, when Mr. Siracusa brought the nonsuit motion. The deputy judge did not give any of the represented parties an unfair advantage. In fact, the deputy judge was critical of all the parties and their legal representatives. This is reflected in his decision not to order costs of the trial in favour of the successful parties.

[21] There is similarly no merit to the Appellant’s argument that it was a breach of natural justice for the deputy judge to require him to make submissions on costs of the nonsuit motion before the reasons were provided. That is a process used by the court to ensure that a case proceeds and comes to a conclusion in a timely and efficient manner. In any event, the Appellant has not identified anything in the reasons that would have impacted his submissions on costs.

[22] On the issue of the deputy judge encouraging the Appellant to seek legal advice, the deputy judge’s conduct was consistent with the Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons. Section 4(1) of the Statement directs judges to inform unrepresented litigants of the consequences of proceeding without counsel.

[23] Moreover, the Appellant failed to provide any evidence to support his allegation that the deputy judge altered or created evidence. When asked to identify evidence that was created or altered by the deputy judge, the Appellant directed the court to an email dated February 17, 2019 from Detective Constable Walker of the Toronto Police Service to the Appellant. At trial, however, it was the Appellant who adduced and relied on that email. The Appellant’s inability to identify a single piece of altered or created evidence shows that the allegation is baseless. Making such a serious allegation against a deputy judge of the Small Claims Court brings the administration of justice into question and ought not to be done lightly.

[24] As observed by the deputy judge, the Appellant alleged multiple times during the trial that the deputy judge was biased against him. The Appellant then apologized and withdrew the accusations. The deputy judge noted this in his reasons, at para. 268, as follows:

[268] When the plaintiff made these allegations, I suggested that I would be unable to continue the trial if he were to persist in them. On each such occasion, he withdrew his allegations and apologized saying that he did not really mean them. On that basis and since we were well into the evidence and in the interest of justice and not to put the defendants to the added expenses of a new trial, I continued with the trial confident that I could continue it impartially and without bias and base my decision solely on the facts and the evidence adduced at trial and the applicable law.

[25] In fact, it was the Respondents, Mr. Somodi and Niki, who brought a motion for the court to declare a mistrial and Mr. Diotalevi who brought a motion to have the deputy judge recuse himself on the basis of bias. In his submissions, the Appellant stated that he was satisfied that the deputy judge could make an impartial judgment and that he wished the court to continue with the trial. The deputy judge declined to order a mistrial and to recuse himself. One of his main concerns was that the Appellant would be prejudiced and that any prejudice would not be compensable in costs. Having taken the position that the deputy could fairly judge the matter on the motions, it is inconsistent for the Appellant to argue the contrary on appeal.

Did the Deputy Judge Err in Making Findings on Issues that had not Been Pleaded?

[26] The Appellant relies on Whiten v. Pilot Insurance Company, 2002 SCC 18, [2002] 1 S.C.R. 595, at paras. 86-87, to argue that there is a lack of procedural fairness where a party does not have advance notice of an allegation to be able to meaningfully prepare and respond.

[27] The paragraphs from Whiten upon which the Appellant relies relate to properly pleading a claim for punitive damages and have no application here. Moreover, the Appellant has provided no particulars as to the matters for which he lacked notice and was unable to respond.

[28] The Appellant’s submission appears to relate to the deputy judge allowing Mr. Siracusa to bring the nonsuit motion during the trial. However, a nonsuit motion is generally brought by the defendant at the close of the plaintiff’s evidence to dismiss the action on the ground that the plaintiff has failed to make out a case for the defendant to answer: FL Receivables Trust 2002-A v. Cobrand Foods Ltd., 2007 ONCA 425, at para. 12. There was no unfairness in the deputy judge hearing the nonsuit motion.

Conclusion

[29] Accordingly, for the foregoing reasons, the appeal is dismissed.

[30] The Respondents are entitled to costs of the appeal. The costs of the appeals are fixed at $5,000 inclusive, to each of the Respondents, Mr. Siracusa and Mr. Diotaevi. Mr. Somodi’s costs are fixed at $4,000 inclusive.

“Nishikawa J.”

Date: January 12, 2023

[^1]: The Respondents raise a preliminary issue as to which parties are properly named as respondents on the respective appeals. The Costs Order relates only to Mr. Siracusa. Therefore, the other Respondents, Mr. Diotalevi and Mr. Somodi, are not proper parties to the costs appeal (108/22). By contrast, the Order relates to Mr. Diotalevi and Mr. Somodi, but not to Mr. Siracusa, who is thus not a party to the trial appeal (203/22).

[^2]: No appeal was brought against 1843394 Ontario Ltd., c.o.b. Niki Auto Motor.