COURT OF APPEAL FOR ONTARIO

CITATION: Massoudinia v. Volfson, 2013 ONCA 29

DATE: 20130118

DOCKET: M41855

Weiler J.A. (In Chambers)

BETWEEN

Mojgan Massoudinia

Plaintiff (Responding Party)

and

Irina Volfson

Defendant (Moving Party)

Counsel:

David M. Mayzel, for the moving party

Hilary Brook, as duty counsel

Mojgan Massoudinia, acting in person

Heard: by teleconference on January 16, 2013

On a motion for an extension to file a notice of motion for leave to appeal from the judgment of Justice M. McKelvey, sitting as a single judge of the Divisional Court, dated September 19, 2012.

ENDORSEMENT

[1] This is a motion for leave to appeal and to extend the time within which to appeal. In determining whether to extend the time for filing an appeal, the court will generally consider whether the justice of the case requires it, taking into account whether the appellant formed a timely intention to appeal, the length of the delay, any prejudice to the respondent, and the merits of the appeal: Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A.). I am satisfied that the moving party formed a bona fide intention to appeal within the prescribed appeal period. I also accept her explanation for the delay. However, for the reasons that follow, I am of the opinion that the appeal has no merit.

[2] The moving party was ordered to pay $4,576.49 plus costs by a deputy judge sitting in Small Claims court. The amount awarded was for breach of a warranty given by the moving party to the responding party. The warranty related to the functionality of equipment for a swimming pool and was contained in the agreement of purchase and sale wherein the moving party sold a house to the responding party.

[3] In delivering brief oral reasons, the Small Claims court judge accepted the evidence of the responding party that, after she took possession of the house, she made efforts to try to get the equipment for the pool working. He also referred to independent documentary evidence, namely, a service work order from one company and a repair order from another company, indicating that there was a problem with the pool evident shortly before closing.

[4] The moving party appealed the decision to a single judge of the Divisional Court, in part on the basis that the Small Claims court judge’s reasons were inadequate. The reasons did not refer to the moving party’s testimony that the problems had been resolved and all was in fine working order at a family function held shortly prior to closing.

[5] The Divisional Court judge acknowledged that the reasons were “not ideal” and that they did not explicitly deal with the defence evidence. He held, however, that they met the minimum standard in that the parties would understand the reasons for his decision for the purposes of appellate review. He elaborated:

While the trial judge does not comment specifically on the defence evidence, it is apparent that he preferred the Plaintiff’s evidence which he felt was corroborated by other independent documentation filed with the court.

In the context of a Small Claims Court action with a very modest amount in dispute, I conclude that the trial judge’s Reasons are adequate and the appeal is, therefore, dismissed.

[6] The moving party now seeks leave to appeal to this court on a question that is not a question of fact alone. The proposed question is whether the Divisional Court judge erred in applying a different and lesser standard of review to the reasons of the Small Claims court judge.

[7] I disagree that this was what the Divisional Court judge was saying. The Divisional Court judge adopted the functional approach mandated by the Supreme Court of Canada in R. v Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 in assessing the reasons. Under that approach, finding an error of law due to insufficient reasons requires a two stage of analysis. The first stage is whether the reasons are inadequate. Secondly, if they are, the question is whether the reasons cause prejudice to the appellant’s right to meaningful appellate review. As Binnie J. held in Sheppard, at para. 53, inadequate reasons do not alone give “a free-standing right of appeal” or “entitlement to appellate intervention”.

[8] In this case, the Divisional Court judge held, in essence, that even if the Small Claims court judge’s reasons were objectively inadequate, they did not prevent appellate review because the basis of the decision was obvious on the face of the record. I agree.

[9] Finally, I do not read the Divisional Court judge’s comment, “[i]n the context of a Small Claims Court action with a very small amount in dispute,” as suggesting that a different and lesser standard of review applies to Small Claims court reasons. What he was saying was that, in assessing the adequacy of the reasons, context matters. Appellate courts recognize that oral reasons ordinarily cannot be as thorough and detailed as written reasons. As Carthy J.A. said, in R. v. Richardson (1992), 1992 CanLII 7710 (ON CA), 9 O.R. (3d) 194 (C.A.), at para. 13, “[i]n moving under pressure from case to case it is expected that oral judgments will contain much less than the complete line of reasoning leading to the result.”

[10] For these reasons, the record does not support the moving party’s question of law. The moving party has not satisfied the requirement of showing that the appeal has merit.

[11] I would just add that, where the parties have already had one appeal, a court deciding whether or not to grant leave should also consider, the significance of the legal issues raised to the general administration of justice. See Iness v. Canada Mortgage and Housing Corp., 2002 CanLII 15707 (ON CA), While the moving party in this case framed the question in such a manner as to raise an issue of importance to the administration of justice, it is plain from the record that this case has no general significance.

[12] The motion is dismissed.

“K.M. Weiler J.A.”