CITATION: Royal Bank of Canada v. Lendak, 2024 ONSC 7044

DIVISIONAL COURT FILE NO.: DC-23-0001

DATE: 2024-12-16

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Royal Bank of Canada

Respondent

– and –

Peter Lendak

Appellant

V. Rampersad, Counsel for the Respondent

Peter Lendak representing himself

HEARD: November 1, 2024

DECISION ON APPEAL

s.k. stothart J.

Overview

1The appellant, Peter Lendak, appeals as against the decision of Deputy Judge N. Munro on November 23, 2023, following a trial held on November 22, 2023 in the Small Claims Court, in Elliot Lake, Ontario.

2On November 23, 2023, Deputy Judge Munro concluded that she was satisfied on a balance of probabilities that the appellant obtained a Royal Bank of Canada credit line (“RBC credit line”) and a Royal Bank of Canada credit card (“RBC credit card”) and had received the benefit of credit for both which he failed to repay as provided for in the terms of usage.

3Deputy Judge Munro found that the appellant owed $34,447.81, which included prejudgment interest to November 22, 2023, and that the respondent was entitled to post judgment interest in accordance with the Courts of Justice Act. Deputy Judge Munro also ordered the appellant to pay the costs of the action in the amount of $3,363.55 inclusive.

The grounds of appeal

4The appellant raises the following grounds of appeal:

a. The Deputy Judge erred in failing to dismiss the proceedings as barred by the Limitations Act, 2002 S.O. 2002, Chapter 24, Schedule B;

b. The Deputy Judge was biased and treated the appellant unfairly as a self-represented litigant;

c. The Deputy Judge failed to consider prior findings by the Court, specifically the decisions of Justice Stinson and Deputy Judge Paquette;

d. The Deputy Judge erred in ordering excessive pre-judgment interest and post-judgment interest; and

e. The Deputy Judge erred with respect to the issue of costs.

Background

5On September 21, 2017, the respondent, the Royal Bank of Canada (“RBC”) issued a statement of claim (CV-17-583110) in the Superior Court of Justice seeking payment of funds owing on an RBC credit card and an RBC line of credit in the appellant’s name.

6The claim sought payment of:

a. $13,900.65, which was the outstanding balance on the RBC credit card account;

b. $5,000 which was the outstanding balance on the RBC credit line;

c. Pre-judgment and post-judgment interest on the amount owing on the credit card at a rate of 19.99% per annum from August 23, 2017 to the date of Judgment;

d. Pre-judgment and post-judgment interest on the line of credit at a rate of 6.90% per annum from July 5, 2017; and

e. The plaintiff’s costs of the action on a full indemnity basis, plus H.S.T.

7The respondent’s claim was commenced in the Ontario Superior Court of Justice in Toronto under the simplified procedure provided in r. 76 of the Rules of Civil Procedure, O. Reg. 575/07, s.6. On October 2, 2017, the appellant filed a statement of defence.

August 20, 2019 - Motion for summary judgment

8The respondent brought a motion for summary judgment, which was heard on August 20, 2019. The reasons for decision in that motion are reported Royal Bank of Canada v. Lendak, 2019 ONSC 4877.

9In his reasons for decision, Justice Stinson set out a detailed history of the matter, which I will not repeat. In the end, Justice Stinson found as follows at para. 25-26:

It is undisputable that, through its inherent jurisdiction, the court has authority to control its own processes. If authority for that proposition is required, it may be found in the discussion of this topic by John MacDonald J. in Shoppers Trust Co. v. Mann Taxi Management Ltd. In the exercise of that jurisdiction, the court has an obligation to ensure that scarce court and judicial resources are deployed in a suitable and efficient fashion. Where other proceedings are available and suitable for the resolution of disputes, such as Small Claims Court proceedings, and absent good and valid reasons, the Superior Court should ordinarily direct claims within the monetary jurisdiction of that court to be litigated there. Failure to adhere to that principle, both by litigants and judges, would mean that the scarce resources of the Superior Court of Justice are being unduly overburdened.

These principles are applicable to the present case. There is no reason or need for this case to be litigated in the Superior Court of Justice. I therefore direct that it be transferred to the Small Claims Court at Elliott Lake and henceforth proceed as a matter commenced there. I direct plaintiff's counsel to take the necessary steps to implement this directive and to arrange a telephone case conference with the presiding judge of that court to seek directions as to the next steps in the proceeding.

10The matter was thereafter transferred to the Small Claims Court in Elliott Lake.

May 4, 2022 – Motion to dismiss

11On May 4, 2022, the matter was before Deputy Judge Edmond J. Paquette by way of a motion brought by the appellant seeking a dismissal of the claim pursuant to r. 11.1.01 of the Rules of the Small Claims Court, O. Reg. 258/98.

12The appellant took the position that because the claim had been initiated on September 21, 2017 and the action had not been disposed of by order, no step was taken by the plaintiff under r. 11.03 to obtain judgment, and the plaintiff had not set the matter down for trial by the second anniversary of the commencement of the action, that the action should be dismissed for delay.

13In dismissing the motion, Deputy Judge Paquette noted that due to various administrative delays the matter was only transferred to the Elliott Lake Small Claims Court in December 2022. In dismissing the motion, Deputy Judge Paquette concluded at para. 7:

It appears that the commencement date of the Order of Justice Stinson is when the actual file was received by the Clerk in Elliot Lake. Hence, Rule 11 would not apply until December, 2024 in any event.

The trial on November 22, 2023

Motion under the Limitations Act

14On November 22, 2023, at the commencement of the trial, the appellant brought a motion seeking to have the claim dismissed under the Limitations Act. The appellant took the position that Justice Stinson’s order directed that the claim be commenced in Elliott Lake. The appellant submitted that Deputy Judge Paquette had decided that the claim had not been commenced until December 2022. In the appellant’s view, this meant that given the claim was discoverable in September 2017 (when the statement of claim was issued) and the proceedings had been “commenced” in the Small Claims Court in 2022, the claim was barred because it had been “commenced” outside of the two-year general limitation period.

15Deputy Judge Munro provided oral reasons for her decision, dismissing the appellant’s motion. In her decision, she found that Justice Stinson’s ordered that the claim be transferred to Elliott Lake. She further found that Deputy Judge Paquette’s decision, which was not appealed, was that r. 11 did not apply because the matter arrived in Elliott Lake in December 2022.

The trial proceedings

16One witness was called at trial, Michael Connolly. Connolly was an employee with the RBC who was able to identify and explain the various bank records contained in the plaintiff’s book of documents and the general processes with respect to obtaining a line of credit and a credit card from the RBC.

Objection to Connolly’s evidence being received

17The appellant objected to the plaintiff calling Connolly as a witness. The appellant took the position that r. 8.02 of the Small Claims Rules required the respondent to provide an affidavit from Michael Connolly at least 30 days prior to trial.

18In submissions, the respondent advised the court that it had initially intended to call Cindy Holbrook as its witness from RBC. All of the prior affidavits had been in her name, and she had been listed as the respondent’s sole witness in the list of witnesses. Ms. Holbrook had an accident that required medical attention and was not able to attend the trial. On November 3, 2023, the respondent advised the appellant that it would be calling Mr. Connolly instead of Ms. Holbrook and that his evidence would be the same.

19The respondent advised the court that it filed its book of documents on September 20, 2023, and had served the appellant with the book of documents by e-mail and by Purolator around the same time, which would have been more than 30 days prior to trial.

20During submissions, the appellant acknowledged receiving the respondent’s books of documents containing the business records “way back when” or “sometime in 2017”. The appellant’s position was that Connolly’s evidence should be barred because the respondent did not provide an affidavit from Connolly 30 days prior to the trial. The appellant was of the view that r. 8.02 required this.

21The appellant then requested an adjournment on the basis of this change in witness and on the basis that he had not received proper notice. He took the position that he could not properly cross-examine Mr. Connolly because he had not received an affidavit or witness statement from him.

22The trial judge attempted to explain to the appellant that Mr. Connolly was providing oral testimony and that the appellant would be able to cross-examine him on the oral testimony and on the bank records. The trial judge attempted to explain that Mr. Connolly’s evidence was not being tendered by way of affidavit and that the respondent had simply found another witness to provide the same evidence as anticipated from Ms. Holbrook, which was essentially evidence that identified and explained the bank records. This explanation was interrupted several times by the appellant.

23The trial judge explained at page 43:

…from the court’s standpoint, if there was a book of documents that you received…which are documents that are made in the usual course of business at the Royal Bank then if you have another person in the same department who’s going to identify those documents – and you’ll be allowed to cross-examine them and make sure whether or not they are able to do that. I don’t understand the prejudice. It’s a little bit different – like, If you’re introducing business records that you’ve received notice on, it’s a little bit different than, for sure, if you had an eyewitness to a state of events, and then that eyewitness isn’t available, then obviously they can’t be substituted in. But in this particular case, where we are talking about a financial institution introducing financial records, made in the ordinary course of business, it’s not – and you will certainly have an opportunity to cross-examine. The questions that you could have asked this Cindy Holbrook could equally be asked to another employee in the same department who is familiar.

And I also have to decide if the appropriate remedy, in fairness to everyone is to deal with this matter today. If this were a crucial eyewitness whose evidence could not be replaced, that would be an important factor, but when it’s an employee identifying business records…

24The appellant continued to insist that r. 18.02 required the respondent to file an affidavit from the proposed witness and accused the trial judge that this was an example of the court enabling the plaintiff against a self-represented litigant and refusing to enforce the rules. At this point, the appellant requested an adjournment.

25When the trial judge attempted to address this request, she was repeatedly interrupted by the appellant who continued to ask the trial judge why she was allowing the respondent to break the rules, and then asked the trial judge if she banked at the RBC, and then expressed that he felt the trial judge banked at the RBC and had a conflict of interest.

26At this point the trial judge asked the appellant to stop talking if he was not going to make submissions relevant to the issue, and to be respectful to the court.

27The trial judge then went on to attempt to explain her decisions, with repeated interruptions. Stating at page 48:

And I also have to decide if the appropriate remedy, in fairness to everybody concerned, is to deal with this matter today. If this were a crucial eyewitness whose evidence could not be replaced, that would be an important factor, but when it’s an employee identifying business records…(interrupted)

28The trial judge continued at page 49:

I am going to explain… (interrupted), to you sir… (interrupted) that when you have business records taken in the ordinary course of business – I don’t care which corporation they are at – there are court rules that allow – and those records were served on you, and they were served with you well within the timeframe. So you knew those records were going to be introduced…(interrupted).

29The trial judge ultimately declined to bar the evidence or grant an adjournment, finding at page 51:

The name of a witness is not evidence for the court. The name of the witness is the person who will be giving evidence if they’re allowed to do so. In this particular case, I am being told that the purpose of substituting a witness in is to identify business records that were served on you. They were made in the ordinary course of business. This has nothing to do with the type of business. Under the Rules of Evidence business records can be served and they can be admitted by the court, and I am exercising my discretion to allow the plaintiff to call the witness. You will have an opportunity to cross-examine, and if that person is qualified to properly identified these business records that were served on you well within the timeframes, then those business records should be accepted by this court. You’ve asked for justice. You’ve asked for there not to be a delay and you’ve asked for the matter to be heard in Elliot Lake. I am trying to accomplish that for you. Just because the records go in, that does not mean that you cannot defend your claim. It does not mean you can’t ask questions, and it does not mean that you can’t put forth your defence…(interrupted).

30The appellant continued to insist that he was entitled to an affidavit on which to cross-examine the witness and that if Ms. Holbrook was injured, she should testify remotely. After continuing back and forth, the trial judge expressed that she was ready to hear the plaintiff’s case.

Evidence of Michael Connolly

31Although the appellant has not appealed against the trial judge’s factual findings at trial, I will summarize the evidence of Michael Connolly.

32Michael Connolly testified that he was a collateral management and enforcement associate with the RBC. His duties included going through files that had gone to litigation.

33Connolly identified the documents contained in Tabs C to J in the respondent’s book of documents as true and authentic copies of documents kept in the ordinary course of business at the Royal Bank that are automatically generated on a monthly basis. He testified that the documents had not been altered in any way. The book of documents was entered as Exhibit 1 at the trial. This exhibit has not been provided to the court as part of this appeal.

34Based on the transcript of proceedings, Connolly identified several bank documents, including a RBC credit line agreement in the name of Peter Lendak for account 695 35607-001; RBC credit line statements for the line of credit account between July 3, 2014 and May 2017; a copy of VISA statements for a RBC VISA credit card number 4512 0623 7734 in the name of Peter Lendak for the period between April 21, 2016 and April 2017; a copy of the credit card agreement; the back of a VISA credit card; a list of transactions that had taken place using the VISA credit card; a copy of the bank account history for a bank account in the name of Peter Lendak between April 30, 2016 and March 19, 2019; and a copy of a cheque made out to Peter Lendak from Peter Lendak, written on the line of credit account, in the amount of $1,000 dated August 5, 2024. Various addresses had been provided by the account holder in these records, including addresses in Elliot Lake.

35Connolly testified and confirmed that the records indicated the outstanding balances on the line of credit and the credit card, as well as the applicable rates of interest which were 6.9% on the line of credit and 19.99 % on the credit card. Connolly also testified and confirmed the terms of use for both the line of credit and the credit card which were also contained in the records.

36With respect to the credit card, Connolly confirmed that the records demonstrated that as of August 23, 2017, the credit card had a balance of 11,563.33. At an interest rate of 19.99% to the date of trial, the interest owing was $14,451.69. The principal and interest totaled $26,015.22.

37With respect to the line of credit, Connolly confirmed that the records demonstrated that as of July 5, 2017 the line of credit had a balance of $5,000. At an interest rate of 6.9% to the date of trial, the interest owing was $8,432.79. The principal and interest totaled $13,432.79.

38Connolly testified that the records demonstrated that for some time the line of credit and credit card balances had been paid from the bank account held in the name of Peter Lendak. As time went on, the bank account had insufficient funds to cover the balances owing. Ultimately the line of credit and credit card balances remained unpaid, and the matter was forwarded to their litigation department. Connolly testified that balances remained unpaid as of the date of trial.

Trial judge’s reasons

39In her reasons for decision, the trial judge found that she was satisfied on a balance of probabilities that Peter Lendak obtained a Royal Bank of Canada credit card and line of credit, which he failed to repay as provided for in the terms of usage. She was satisfied that Peter Lendak owed $34,447.81 which included prejudgment interest up to November 22, 2023, and that the respondent was entitled to post judgment interest in accordance with the Courts of Justice Act.

Analysis

40The Divisional Court has jurisdiction to hear an appeal from a final order of the Small Claims Court pursuant to s.31 of the Courts of Justice Act, R.S.O. 1990, Chap.C.43.

41The standard of review on an appeal from the order of a judge is correctness for a question of law and palpable and overriding error for findings of fact. A question of mixed fact and law is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle which may amount to an error of law: Housen v. Nikolaisen, 2002 SCC 33.

Did the trial judge err in finding that the plaintiff’s claim was not barred by the Limitations Act

42The appellant relies on s. 4 of the Limitations Act, 2002, S.O. 2002, c.24, Sched. B, which reads:

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary on which the claim was discovered.

43The word “commence” means to “begin” or “start”. In this case, the respondent’s claim was “commenced” when it began on September 21, 2017 by way of an issued Statement of Claim under the simplified procedure provided in r. 76 of the Rules of Civil Procedure.

44Justice Stinson’s order states: “I therefore direct that it be transferred to the Small Claims Court at Elliott Lake and henceforth proceed as a matter commenced there” [Emphasis added]. Justice Stinson’s order was clearly an order transferring a proceeding from one court (the Superior Court of Justice) to another court (the Small Claims Court) where he concluded it was more suited to hear the dispute between the parties. His order did not dismiss, stay, or otherwise end the existing claim. The claim still existed. Justice Stinson’s order simply transferred it to Small Claims Court.

45The appellant submits that Deputy Judge Paquette’s decision contained a “finding of fact” that the proceedings had been “commenced” in December 2022, and that finding was binding on Deputy Judge Munro.

46A review of the proceedings before Deputy Judge Paquette makes it clear that he did not decide or make a “finding of fact” that the claim had been “commenced” in December 2022. He found that the claim had been “transferred” from Toronto to Elliot Lake (para.5) and that the “commencement date of the Order of Justice Stinson” in the Small Claims Court was the date the file was received by the Clerk in Elliot Lake (para. 7).

47No appeal was taken from Deputy Judge Paquette’s decision. Further, even if there was a “finding of fact” it was not binding on the trial judge, who was the trier of fact.

48It is important to note that r. 1.1.01(1) creates a process for administrative dismissals of a Small Claims Court matters, “unless the court orders otherwise”. In this case, there had not been an administrative dismissal of this matter. Administrative dismissals in Small Claims Court were suspended for a period of time during the COVID-19 pandemic and were not resumed by the Ministry of the Attorney General until March 13, 2024. Even if there had been an administrative dismissal, r. 1.1.01(1) provides that the dismissal can be subject to an order of the court that the matter may proceed. In this case, Deputy Judge Paquette found that the matter should proceed to trial.

49In her reasons, Deputy Judge Munro found that Justice Stinson’s order transferred the matter to Small Claims Court in Elliot Lake to proceed as if it was commenced there. Deputy Judge Munro noted that Justice Stinson did not dismiss the claim that was issued in Toronto. Rather, he transferred the claim, that had been made within the Limitations Act time frame, to Elliot Lake, to proceed as a matter commenced in Elliot Lake.

50I find no error on the part of Deputy Judge Munro in dismissing the appellant’s motion under the Limitation Act. Her decision was correct.

51It makes no sense that transferring a matter to Small Claims Court would re-start the clock with respect to the Limitations Act. The purpose of the Limitations Act is to provide a clear and cohesive scheme for addressing limitations issues, one that balances the plaintiff’s right to sue with the defendant’s need for certainty and finality. It recognizes that lawsuits should be brought within a reasonable time and that individuals should not be subjected to the threat of being sued indefinitely: Canaccord Capital Corp. v. Roscoe, 2013 ONCA 378 at para. 19.

52In this case, the respondent’s action was commenced in September, 2017, well within two years of the appellant failing to pay the amounts owing on his line of credit and credit card and it becoming appropriate for the respondent to bring a claim: 407 ETR Concession Co. v. Day, 2016 ONCA 709, at para. 39.

53The appellant was put on notice of the claim in September 2017 and filed a statement of defence, all within the two-year limitation period. Transferring the claim to another court did not alter the fact that the appellant knew about the claim and had been defending against it for a significant period of time. The claim was simply transferred to another court for what should have been a more expeditious and simplified hearing.

54Deputy Judge Munro did not err in dismissing the appellant’s motion to dismiss the claim as barred by the Limitation Act.

Did the actions of the trial judge demonstrate bias or otherwise result in unfairness to the appellant

55The appellant submits that the trial judge was biased and did not treat him fairly as a self-represented person. The appellant submits that every time there was a discrepancy at trial, the trial judge found in favour of the respondent. The appellant submits that the trial judge made numerous errors, failed to uphold the rules, and failed to assist him at trial.

Bias

56A party alleging bias bears the onus of establishing that there was a real likelihood or probability of bias or a reasonable apprehension of bias on the part of the trial judge. The threshold for a finding of real or perceived bias is high. In reviewing whether there was an apprehension of bias on the part of the trial judge, an appellate court must consider “what would an informed person, viewing the matter realistically and practically- and having thought the matter through – conclude”. The court must ask itself, is it more likely than not, that the trier of fact, whether consciously or unconsciously, did not decide the case fairly: R. v. S. (R.D.), [1997] 3 S.C.R. 485 at paras. 31, 110-115.

57A reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that judges swear to uphold": R. v. S. (R.D.), at para. 111.

58In R. v. MacMillan, 2024 ONCA 115, the Ontario Court of Appeal described the framework as follows at para. 78:

The jurisprudence establishes that the application of this test is framed by: (i) a strong presumption of judicial impartiality, which accords judicial decision makers considerable deference on appeal; (ii) a high burden on the part of the party alleging bias; (iii) a contextual assessment of the alleged bias, i.e., the instances of alleged bias (e.g., inappropriate, unjustified, or improper comments) are not to be considered in isolation, rather, the question should be whether the alleged bias influenced the decision-making process; (iv) the broad discretion afforded to trial judges in exercising trial management powers to ensure a trial remains "effective, efficient and fair to all parties" (this includes the power to intervene to focus the evidence on material issues, clarify evidence, avoid irrelevant or repetitive evidence, dispense with proof of obvious or uncontested matters, ensure that the way a witness answers questions does not unduly hamper the progress of the trial, or prevent a trial from being unnecessarily protracted); and (v) the presence of the jury during the impugned conduct: see e.g., Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General)2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 25-26; R. v. John2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 47-51; Gager, at paras. 144, 152-53.

59The appellant’s allegation of bias is premised primarily on the fact that the trial judge did not rule in his favour on the issues he raised prior to and during the trial.

60Adverse rulings, even rulings which are subsequently held to be wrong by a higher court, do not, on their own, demonstrate bias: OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520 at para. 59.

61I have already dealt with the issue of the Limitation Act argument and the findings of Deputy Judge Paquette. The trial judge’s decision to dismiss the appellant’s motion based on the Limitation Act was not an example of unfair or biased treatment on the part of the trial judge. It was a legal conclusion that was open to her based on the facts of the case and the applicable law.

62The trial judge’s decision to permit the respondent to call Michael Connolly as a witness and decision not to grant an adjournment of the trial were also an appropriate exercise of her discretion based on the facts of the case and the applicable law.

63With respect to the issue of Michael Connolly’s evidence, the appellant’s position at trial with respect to r. 18 of the Small Claims Court Rules was incorrect. Rule 18.02(1) provides that a document or written statement or an audio or visual record that has been served, at least 30 days before the trial date, on all parties who were served with a notice of trial, shall be received in evidence, unless the trial judge orders otherwise. This rule deals with circumstances where a party wants to introduce an affidavit (or the other items listed) as evidence at trial.

64In this case, the respondent was not filing the affidavit of Connolly at trial. The respondent was calling Connolly as a live witness to provide oral testimony. Rule 18 did not apply to Connolly’s evidence. There is no requirement in the Small Claims Rules that a party must provide an affidavit from a witness that they intend to call at trial. A party may call a witness to provide oral evidence at trial. The trial judge attempted to explain this to the appellant during the trial.

65The trial judge’s decision to not adjourn the trial was also a decision that was open to her based on all of the circumstances. In this case, the appellant was aware of the substance of the respondent’s proposed evidence in advance of the trial. The respondent’s evidence consisted almost entirely of bank records that demonstrated that a line of credit and credit card had been taken out in the appellant’s name, the terms that applied to the granting of those types of credit, the amounts owing, and that those amounts had not been re-paid. The appellant confirmed at trial that he had received the respondent’s book of documents. The evidence of Mr. Connolly was that of a bank employee who was able to identify and describe those bank records. His evidence was expected to be identical to that of Ms. Holbrook. The trial judge attempted to explain this to the appellant.

66The trial judge’s decision to not grant an adjournment and to proceed to trial was not unreasonable nor did it demonstrate bias. Although a relatively simple matter, the claim was very dated and had undergone a tortured history. The appellant had expressed concerns about delay and sought to have the claim dismissed on that basis. The trial judge found that the appellant would not be prejudiced by proceeding with the evidence of Connolly given he was simply substituting in to provide the same evidence that had already been disclosed to the appellant. In these circumstances, it cannot be said that the exercise of her discretion to not grant an adjournment was unreasonable or occasioned any prejudice to the appellant.

Duty of fairness

67A trial court has a duty to ensure that all parties, including self-represented litigants, receive a fair hearing. With respect to self-represented litigants, the court’s obligations are outlined in the Canadian Judicial Council’s 2006 Statement of Principles on Self-Represented Litigants and Accused Persons, which was endorsed by the Supreme Court in Pintea v. Johns, 2017 SCC 23 at para. 4.

68An important function of the court is to ensure that the trial procedure is fair and balanced so that the parties are able to fairly advance their positions and obtain a judgment based on the merits of the case: Girao v. Cunningham 2020 ONCA 260 at paras. 149-151.

69The Statement of Principles on Self-Represented Litigants and Accused Persons sets out directions for the judiciary with respect to promoting equal justice. It states:

1. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

2. Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.

3. Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible.

4. When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants' equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:

(a) explain the process;

(b) inquire whether both parties understand the process and the procedure;

(c) make referrals to agencies able to assist the litigant in the preparation of the case;

(d) provide information about the law and evidentiary requirements;

(e) modify the traditional order of taking evidence; and

(f) question witnesses.

70The Statement also provides guidance with respect to the responsibilities of the participants in the justice system. Specifically, it states at page 6: “All participant are accountable for understanding and fulfilling their roles in achieving the goals of equal access to justice, including procedural fairness”.

71The Statement goes on to provide: “Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case”.

72The Statement also provides the following guidance to the Judiciary:

1. Judges have a responsibility to inquire whether self-represented persons are aware of their procedure options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.

2. In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court.

3. Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

73In Girao, Lauwers J.A. summarized principles to be applied in a case involving a self-represented person as follows at paras. 150-151:

In Morwald-Benevides v. Benevides, 2019 ONCA 1023, 148 O.R. (3d) 305(Ont. C.A.), I surveyed some of the responsibilities that trial judges have to self-represented litigants, and noted, at para. 34:

It is no longer sufficient for a judge to simply swear a party in and then leave it to the party to explain the case, letting the party flounder and then subside into unhelpful silence. As this court has noted"it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence": Dujardin v. Dujardin, 2018 ONCA 597, 423 D.L.R. (4th) 731, at para. 37, repeated in Gionet v. Pingue, 2018 ONCA 1040, 22 R.F.L. (8th) 55, at para. 30. The court added, at para. 31 of Gionet: "In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case", citing Davids v. Davids(1999), 1999 9289 (ON CA), 125 O.A.C. 375, at para. 36. See also Manitoba (Director of Child and Family Services) v. J.A., 2006 MBCA 44, at paras. 19-20.

Although fairness concerns may animate how a trial judge exercises control over their courtrooms, there are clear limits to a trial judge's duty to assist a self-represented litigant. The actuality and the appearance of judicial impartiality must be maintained. As Brown J.A. said in Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135 (Ont. C.A.) at para. 22: "A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented." In order to preserve fairness in a trial"the trial judge must, of course, respect the rights of the other party": Davids v. Davids[1999] CarswellOnt 3304 (Ont. C.A.) ], at para. 36.

74I have carefully reviewed the transcript of proceedings and find that Deputy Judge Munro amply and admirably fulfilled her judicial responsibilities as they related to the appellant as a self-represented litigant.

75A review of the transcript of the trial reveals the following conduct by the trial judge:

a. The trial judge commenced the proceedings by advising both parties that she expected them to abide by the court rules and that she would not tolerate inappropriate behaviour by either party;

b. The trial judge heard the appellant’s preliminary motion pursuant to the Limitation Act. She provided both parties with ample and uninterrupted time to provide their submissions, and then provided a ruling;

c. The trial judge then heard the appellant’s preliminary objection to the evidence of Michael Connolly. This aspect of the trial proved to be difficult because the appellant repeatedly interrupted the trial judge’s attempts to explain that the respondent was calling a witness to provide oral testimony, that the oral testimony was expected to be the same as the originally intended witness; that the witness was expected to identify and explain bank records that had been provided to the appellant well in advance of trial; and that the appellant would have the opportunity to cross-examine the witness on his evidence and on the records. Ultimately, the trial judge rendered a decision and permitted the witness to testify: pages 43-44;

d. The trial judge considered the appellant’s request for an adjournment and declined to grant one. In doing so, she attempted to provide reasons that included her concern about the delay in the proceedings, that the appellant had been aware of the nature of the witness’ evidence prior to trial; and that the witness was simply substituting in for another witness who had become unavailable. The appellant repeatedly interrupted the trial judge as she tried to explain this: pages 48-54;

e. When the appellant asked for a lunch break because he was hungry, the trial judge took a lunch break: page 54;

f. After the testimony in chief of the witness Connolly, the trial judge explained the role and scope of cross-examination to the appellant. Initially the appellant refused to cross-examine the witness on the basis that he had not been provided with an affidavit and his fear that cross-examination would amount to an acceptance of her ruling that the witness could testify. The trial judge explained that this was the opportunity for the appellant to cross-examine the witness on his evidence provided, and on the documents produced. She explained that the appellant did not have to ask any questions, but if he chose not to, he would not have another opportunity to ask the witness questions: pages137-146;

g. The trial judge asked the appellant to clarify some of his questions during cross-examination: page 150-151;

h. The trial judge ruled on an objection by the respondent regarding repetitive questions during cross-examination: page 153;

i. The trial judge asked the appellant if he wished to testify. The appellant initially indicated that he would, but then asked if he had to. The trial judge told the appellant that he could choose to testify or choose not to testify and spent some time explaining this to the appellant: pages 162-163;

j. The trial judge explained that if the appellant wanted to get his defence before the court, he would have to present it: page 163;

k. When the appellant expressed that he was not going to testify, the trial judge offered the appellant a “5 or 10 minute break” to consider his position; page 163;

l. After the appellant chose not to testify or call evidence, the trial judge explained that she would hear submissions. She explained that the appellant should not interrupt while counsel for the respondent was making submissions and that the appellant would have the opportunity to make submissions without interruption: page 167;

m. The trial judge heard submissions from the respondent, then the appellant, and then reply submissions by the respondent: pages 164-182; and

n. The trial judge reserved her decision and released it in writing on November 23, 2023.

76Having reviewed the transcript, I am satisfied that the appellant was treated fairly, and that the trial judge attempted to accommodate the appellant’s unfamiliarity with the trial process in an effort to permit him the opportunity to present his case in accordance with the rules and procedures of the court. She did so in the face of very challenging behaviour on the part of the appellant throughout the trial.

Did the trial judge err in ordering pre-judgment interest and post-judgment interest

77In her reasons, Deputy Judge Munro ordered that the appellant pay pre-judgment interest on the amount owing on the credit card and line of credit, on the basis of the interest rate provided in the terms of use for the credit provided.

78Pre-judgment interest compensates a plaintiff for the period from when the money was initially owed until the date of the judgment. A loan agreement, with a specified interest rate, is an agreement between the parties on the cost of borrowing money over a period of time. Absent exceptional circumstances, the interest rate which governed the loan prior to a breach is the appropriate rate to govern the post-breach loan: Bank of America Canada v. Mutual Trust Co, 2002 SCC 43, at para. 49-50.

79In this case, the appellant entered into an agreement with the respondent that an annual interest rate of 19.99% would apply to the balance on the VISA credit card; and that an interest rate of 6.90% would apply to the outstanding principal balance on the line of credit. I find that the trial judge did not err in applying these amounts up to the date of her judgment. There were no circumstances in this case that warranted a deviation from the contractually agreed upon interest.

80In this case, Deputy Judge Munro ordered post-judgment interest at the interest rate provided by the Ontario Courts of Justice Act. This decision favoured the appellant, as it provided for an interest rate lower than that which was contractually agreed upon. I see no error in the trial judge’s decision in this regard.

Did the trial judge err in ordering costs against the appellant

81Section 29 of the Courts of Justice Act, R.S.O. 1990 c.43 provides that an award of costs in the Small Claims Court, other than disbursements, shall not exceed 15 percent of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour during the proceedings.

82Rule 19 of the Small Claims Rules provides that a successful party is entitled to have the party’s reasonable disbursements, including any costs of effecting service or preparing a party’s claim and expenses for travel, accommodation, photocopying and expert’s reports, unless the court orders otherwise.

83Deputy Judge Munro ordered costs in the amount of $2,835 plus HST, plus disbursements in the amount of $100, and cost of service in the amount of $60. This fell below 15% of the amount claimed by the respondent.

84The award of costs is discretionary and entitled to deference on appeal. I find that the quantum of costs imposed by the trial judge was fair and reasonable in the circumstances and see no error in her decision.

Conclusion

85For the above reasons, the appeal is dismissed.

Costs

86At the conclusion of the hearing of the appeal I received oral submissions on costs. The respondent sought costs in the amount of $9,879.14 if it was successful on the appeal and provided a costs outline. The appellant sought costs in the amount of $5,000 if he was successful on appeal and opposed costs if he was not successful.

87I have reviewed the costs outline. I find the 71.5 hours (approximately 9.5 workdays) claimed by the respondent to be excessive in the circumstances of this matter. This was an appeal from a Small Claims Court matter and the issues were not complex. The hearing took less than half a day. I find a fair and reasonable amount to be $7,000.

88I order the appellant to pay costs to the respondent in the amount of $7,000, payable within 30 days of the release of this decision.

The Honourable Madam Justice S.K. Stothart