COURT FILE NO.: DC-2/03
DATE: 20040312
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Keller v. Schipper and 1438117 Ontario Limited
BEFORE: The Honourable Mr. Justice D.J. Gordon
COUNSEL: B. Kelly, for the Respondent
W. Fehrenbach, for the Appellants
REASONS FOR DECISION
[1] This is an appeal from the judgment granted in the Small Claims Court after trial on 11 April 2003, under which the appellants were ordered to pay to the respondent $3,745.00 plus interest and costs.
[2] The subject matter of the litigation was the invoice delivered by the respondent to the appellants for services rendered.
[3] The personal appellant is a businessman and is the sole or majority shareholder and directing mind of the corporate appellant. The respondent is a chartered accountant whose practice includes taxation matters. The appellants retained the respondent in 2001 to perform accounting services but a mutual decision, albeit made separately, was made by the parties in October 2001 to terminate the accountant-client relationship.
[4] The respondents invoice claimed fees of $3,500.00 although actual docketed time was $4,200.00. As to the latter, the respondents time was said to be $2,250.00 and that of his staff $1,950.00. The appellants did not dispute the fees with respect to staff but stated the value of the respondents time to them was only $900.00 and, at trial, indicated the respondent should only receive $2,300.00 in total for fees. In result, a trial occurred in Small Claims Court and an appeal in this court over the sum of $1,200.00.
[5] Appellants counsel requests the judgment be set aside and a new trial ordered. He put forward the following issues on appeal:
Did the learned Deputy Judge err in fact and law in misconstruing the nature of the appellant’s retainer of the respondent?
Did the learned Deputy Judge err in fact and law by not considering the value to the Appellants of the Respondent’s work?
Did the learned Deputy Judge err in law in allowing the respondent to enter documents into evidence as exhibits to the trial and furthermore by considering the documents to be relevant in relation to the nature of the retainer that existed briefly between the appellants and the respondent?
Did the learned trial Judge err in law by improperly drawing inferences from the documents attached to the respondent’s claim contrary to the weight of the evidence?
Did the learned Deputy Judge err in law by misdirecting herself as to the principles applicable to valuing the work performed by the respondent and by ignoring the fact that the respondent had repudiated the contractual relationship existing briefly between the appellants and the respondent?
[6] For the reasons that follow, the appeal is dismissed.
[7] The only issue relevant to the trial, and to this appeal, is the first mentioned above; that is, what was the retainer.
[8] The trial judge’s initial finding the respondent was engaged by the appellants to provide accounting advice is, in my view, correct.
[9] The appellants position was such was restricted to preparation of tax returns, although they recognized certain preparatory work was required particularly as it related to the accounting services provided by the respondent’s staff.
[10] The respondents position was the terms of engagement to prepare the returns required a review of the reorganization documents and, in the course of such review, he determined or perceived there to be a problem which would cause a tax issue for the appellants. A portion of his invoice relates to work performed relative to this problem, including meetings with the appellants other accountants.
[11] The personal appellant did not agree with position of the respondent on this matter which led to the termination of their relationship.
[12] The trial judge identified the different positions although she did not specifically identify such as a dispute regarding the retainer. She identified the dispute as to whether the respondent had to review all of the reorganization material and address any problems he found. This, she said, was an issue as to whether the respondent acted as a competent chartered accountant and in her decision she said:
“I do not have any evidence before me that the work done by Mr. Keller was something that a competent chartered accountant would not do. And as a result I cannot make a finding - and the burden is on you Mr. Schipper, to be able to prove that Mr. Keller was incompetent, was doing something that he did not need to do. I cannot make that finding unless I know from the evidence in front of me what a competent C.A. would do in the circumstances. It is nearly impossible to win this kind of a trial unless you have a contrasting expert opinion and that is what is lacking here.”
[13] While I do not agree with the path the trial judge took in her analysis, I agree with the final conclusion. In essence, the trial judge is talking about the retainer as to whether such, given it pertains to professional services, can be limited, as the appellants wish, or necessitating investigation, as is the respondents position. The trial judge must rule on the evidence presented and it is apparent, although not clearly stated, she accepted the respondents evidence on this point and such was her finding.
[14] In addition, pursuant to section 134(4)(a) Courts of Justice Act , R.S.O. 1990, chap. C.43, as amended, I am prepared to draw such an inference of fact from the evidence at trial.
[15] The primary purpose of the Small Claims Court is to provide an expeditious manner for litigating claims in a summary fashion. While the reasons of the trial judge do not make specific reference to “retainer”, it is clear, in my view, she was aware of the issue and addressed it in a different manner. In this regard, section 134(6), Courts of Justice Act, applies, that is:
“A court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred.”
[16] If there is an error in the decision of the trial judge, it is minor in nature and does not affect the result. On the contrary, it would, in my view, be a miscarriage of justice to direct a new trial in the circumstances of this case.
[17] The appeal, therefore, is dismissed.
[18] If the parties cannot agree on the issue of costs, written submissions are required. The parties seeking costs shall serve submissions within 21 days of the release of this decision, the responding party within 14 days thereafter with a further 7 days allowed for reply. All submissions are to be delivered to my chambers on or before the last day allowed for reply.
D.J. GORDON J.
DATE: March 12, 2004