Court of Appeal for Ontario
Date: 2017-02-22 Docket: M47467 Judge: Pardu J.A (In Chambers)
Between
Florips Bajouco Moving Party
and
Cindy Green Respondent
Counsel
Florips Bajouco, acting in person Rebecca Huang, appearing as duty counsel George Pakozdi, for the respondent
Heard: February 9, 2017
Endorsement
[1] Ms. Florips Bajouco moves for a stay of proceedings pursuant to rule 63.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[2] She expressed a concern about late service of the respondent's materials, but elected to proceed with this matter, with the assistance of duty counsel, rather than seek an adjournment.
[3] Judgment was granted in favour of the respondent on the motion, Ms. Cindy Green in the Small Claims Court for $8,800.77, together with costs in the amount of $1,515.12. The respondent sued the moving party, her neighbour, alleging that the moving party's failure to keep the downspout connected on her half of the semi-detached house caused flooding in the respondent's home on four occasions between 2011 and 2013. The moving party denied that her downspout had ever been disconnected. She suggested that the flooding might have been caused by sewer backup, water flow from the street or the respondent's own downspout. Both parties were represented by counsel at the trial. The Small Claims Court judge found in favour of the respondent, concluding that the moving party's downspout had been disconnected and that this had caused the flooding.
[4] The moving party appealed to the Divisional Court. The Divisional Court dismissed her appeal, observing, at paras. 9 and 13-16:
Although Bajouco has raised several issues on her appeal, most of them seek to impugn the trial judge's assessment of the evidence at trial and to have this Court rehear the case. In my view, none of the points argued on behalf of Bajouco amount to demonstrating any reversible error of law or palpable or overriding error with respect to any findings of fact made by the trial judge or with respect to her application of the law to those facts.
There was evidence at trial upon which the trial judge could rely to support a finding that the downspout had become detached and had caused flooding onto Green's property. The trial judge did not make any palpable and overriding error in her assessment of the evidence in that regard, including in her assessment of the credibility of the witnesses. It is evident from the trial judge's reasons that Green's evidence as to the cause of the flooding was accepted by her, and that all other possible causes of flooding and damage advanced by Bajouco were systematically analyzed and rejected.
By engaging in this deductive reasoning, the trial judge did not improperly shift the burden of proof to the Defendant.
The trial judge was entitled to assign no weight to the City of Toronto record tendered by Bajouco as evidence at trial. Although the document was entered as a business record, its contents were disputed by Green. Its author was not called to give evidence at trial. The trial judge did not rely on the notation on the document as to the source of the flooding and, rather, accepted Green's evidence as being both credible and reliable on the issue. It was within the proper scope of the role of the trial judge to do so.
Similarly, there was evidence adduced upon which the trial judge could rely in arriving at her assessment of damages. Various bills and estimates were tendered by Green to support the repair costs she claimed.
[5] Costs in the Divisional Court were awarded to the respondent in the sum of $3,000.
[6] On June 29, 2016, this court dismissed the moving party's motion for leave to appeal and awarded costs to the respondent in the sum of $1,500.
[7] She has now filed a motion pursuant to r. 59.06(2) to ask the panel that refused her motion for leave to appeal to reconsider that decision. That material is not before me.
[8] In her affidavit she says that there has been fresh evidence discovered relating to the flooding in the respondent's basement and that the evidence is "crucial to the decision made at trial."
[9] At trial, the respondent testified that the flooding in her basement caused damage to her basement bathroom. The moving party says that she has discovered that a photograph of this bathroom used by the respondent to support her claim at trial was a photograph of the west wall of the house where the bathroom was located and that this was "right by her own downspout."
[10] The moving party also submits that the respondent made changes to or falsified a letter from a company called Watertite relating to repairs caused by flooding.
[11] The moving party also relies on a Watertite invoice dated August 6, 2013, indicating work was done on her west wall and under her porch. She alleges that the respondent's shower stall is directly over her sewer line and that the respondent has been flooding her own basement.
[12] The moving party submits that the trial judge erred in many respects and that in July 2016 the City of Toronto discovered a 50 percent calcium obstruction in the city sewer line affecting almost every house on the street.
[13] She says the respondent pleaded a claim for $24,800 but did not prove that at trial and that the respondent did not provide her true identity to the court, calling herself Cindy Green, rather than by her legal name Cynthia Green.
[14] She says finally that the respondent lied under oath at trial.
[15] Most of the matters described by the moving party as amounting to fresh evidence were in fact dealt with at trial.
[16] The possibility that damage to the respondent's bathroom might be caused by the respondent's own downspouts was raised by the moving party at trial. She testified:
And then, there is also a picture of the plaintiff's downspouts. She has two downspouts located along the side of her home. Those downspouts do not point away from her property; those downspouts are actually right up against her, uh, side. They, um, I believe most likely is the reason why she's had the flooding in her bathroom, 'cause her bathroom is located on that side, um, and I'm assuming – I will assume that is why she's had the flooding – it's coming from her roof water.
[17] Similarly she alleged in her evidence that the respondent altered the letters from Watertite.
[18] The Watertite invoice dated August 6, 2013 was also before the trial judge.
[19] I am not satisfied that the discovery in July 2016 of calcium in the sewer lines would have been material to the conclusions reached by the trial judge.
[20] Nothing in the material filed before me persuades me that the Divisional Court judge erred in dismissing the moving party's appeal.
[21] Rule 63.02 provides that a final order may be stayed on terms as are just "by an order of a judge of the court to which a motion for leave to appeal has been made or to which an appeal has been taken."
[22] The respondent argues there is no appeal outstanding. The motion for leave has been dismissed, and r. 63.02 does not give authority to stay proceedings where a motion for reconsideration is awaiting disposition under rule 59.06(2).
[23] Assuming, without deciding, that there is authority under r. 63.02 to stay enforcement of the Small Claims Court judgment and the related costs awards pending a decision on a motion asking the panel to reconsider its refusal to grant leave to appeal, I am not persuaded that the moving party has met the test for a stay set out in RJR–Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 344.
[24] As indicated in Meridian Credit Union Limited v. Baig, 2016 ONCA 942, at para. 7, a party seeking to re-open an appeal after the appeal decision has been rendered faces a high hurdle, and a court will re-open an appeal sparingly and only where it is clearly in the interests of justice.
[25] Here the moving party is seeking to re-litigate in this court the same factual issues that were before the trial judge, on essentially the same evidence that was before the trial judge.
[26] There is no evidence of impecuniosity on the record before me, nor of the impact of enforcement of the judgment.
[27] The respondent has had judgment since July 8, 2014 and has been unable to enforce it. The moving party has been refused relief on appeal twice, and she is now attempting a third appellate review by motion to reverse the refusal of leave. Given the nature of the factual issues now raised, the absence of any error by the Divisional Court and the hurdle faced by the moving party in obtaining a change in the decision of this court refusing leave, I am not persuaded that a stay of enforcement should be granted. I recognize that the time until the panel decides whether to reconsider the refusal of leave might not be lengthy, but in the absence of evidence of irreparable harm, and weighing the balance of convenience, the motion is dismissed, with partial indemnity costs in favour of the respondent in the sum of $2,500.00 inclusive of disbursements and applicable taxes.
G. Pardu J.A.