From: Dunn, Barbara (JUS) Sent: Thursday, May 08, 2003 4:12 PM To: Samlall, Jasmine (JUS) Subject: Addison v Naqvi Judgment.doc
COURT FILE NO.: 03-BN-546
DATE: 20030505
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
B E T W E E N:
Marianne Addison
Ravinder Sawhney, for the Appellant
Appellant (Plaintiff)
- and -
Azhar Naqvi
No one appearing for Respondent, though paged
Respondent (Defendant)
HEARD: April 11, 2003
REASONS FOR JUDGMENT
Dunn J.
[1] This is an appeal of the judgment of the Small Claims Court at Brampton given December 19, 2002 by Deputy Judge S. Gelman. The matter was apparently uncontested.
[2] The appellant filed a copy of the endorsement record. It reads as follows:
Assessment
[3] On hearing/judgment for plaintiff for $10,000.00 plus P.J.I. from March 1, 2002 at 8% per annum plus costs. S. Gelman, D.J.”
[4] No transcript of the assessment on that date was filed by the appellant. None was ordered by the appellant. She alleges that the endorsement reflects most of what transpired.
[5] I find that the appeal must fail. The materials filed on this appeal indicate that the appellant claimed $10,000.00 plus 8% “effective cost to me to lend this money since this amount was borrowed by me from the bank at an average rate of 8% interest.” The Small Claims judge awarded 8% interest as requested by the appellant, although he did not calculate the interest owing from the date requested by the appellant. Gelman, D.J.’s endorsement strongly suggests that he turned his mind to the substance of the appellant’s claim, even if it was not granted in full.
[6] For adequate reasons, the trier of fact may, of course, depart from the requirement under the Courts of Justice Act for the payment of interest on a claim. Section 130(1) of the Courts of Justice Act grants this discretion to the Court:
The court may, where it considers it just to do so, in respect of the whole or any part of the amount on which interest is payable under section 128 or 129,
(a) disallow interest under either section;
(b) allow interest at a rate higher or lower than that provided in either section;
(c) allow interest for a period other than that provided in either section.
[7] Given that the applicant has not filed transcripts of the proceedings, any reasons for judgment are not available for review by this Court. Therefore, even if the Small Claims judge had not addressed appellant’s submissions regarding quantum of interest in his endorsement, the decision would not be appellable.
[8] The appellant’s claim is accordingly dismissed. There will be no order as to costs with respect to the appeal.
Dunn J.
Released: May 5, 2003
COURT FILE NO.: 03-BN-546
DATE: 20030505
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Marianne Addison
Appellant (Plaintiff)
-and –
Azhar Naqvi
Respondent (Defendant)
REASONS FOR JUDGMENT
Dunn J.
Released: May 5, 2003