CITATION: 1201059 Ontario Inc. v. Pizza Pizza Limited, 2015 ONSC 1208
DIVISIONAL COURT FILE NO.: DC-13-495
DATE: 2015-02-26
SUPERIOR COURT OF JUSTICE – ONTARIO
(DIVISIONAL COURT)
RE: 1201059 Ontario Inc., Appellant
A N D:
Pizza Pizza Limited, Respondent
BEFORE: Justices Marrocco, Kent and Edwards
COUNSEL: Adel A. Dibavar and Meysan Saffari, Self-Represented
M.R. Kestenberg and A. Hershtal, for the Respondents
HEARD: February 23, 2015
E N D O R S E M E N T
[1] The appellant 1201059 Ontario Inc. (120) appeals the decision of Nightingale J. dated August 14, 2013, as a result of which Nightingale J. dismissed 120’s action with costs fixed in the amount of approximately $49,000.00.
[2] The appellant’s action involved what, if any, disclosure obligations a franchisor was obliged to make pursuant to the Arthur Wishart Act (Franchise Disclosure), 2000, SO 2000, c 3 (the Act) in the context of the renewal of a franchise agreement.
[3] This appeal raises four issues; the first and perhaps most important of which involved whether Nightingale J. erred in finding as a fact that there had been no material change in the operation of the respondent’s business between 1996 and 2001 which would have triggered any disclosure obligation under the Act. The other three issues involved the assessment of damages by Nightingale J., specifically:
a. Whether he erred in finding that the appellant had failed to mitigate his damages;
b. Whether he erred in the exercising of his discretion not to award interest to the appellant on funds held by the respondent; and
c. Whether he erred in determining that the respondent properly deducted the value of certain small wares from the funds held by the respondent.
[4] Litigants who represent themselves at trial in many cases can be at a significant disadvantage. The Rules of Civil Procedure, the rules of evidence and the nature of appellate review can sometimes be difficult for experienced lawyers to master, let alone someone whose first and perhaps only experience with our courts will be the case where they are self-represented.
[5] The role of the appellate court is not to provide an opportunity to reargue the case. There is a well-known distinction between a trial and an appellate court. The trial judge makes findings of fact based on his or her understanding of the evidence. The trial judge is in the unique position of having heard the evidence and assessed the demeanour of the witnesses. It is for this reason that appellate courts have traditionally treated findings of fact made by the trial judge with deference.
[6] The deference shown by an appellate court to a trial judge’s findings of fact remains in place unless the appellate court is satisfied that a finding made by the trial judge was the result of a “palpable and overriding error”. They mean essentially an error that is plain and obvious to see – or to use the more succinct words of the Supreme Court of Canada in H.L. v. Canada (Attorney General) 2005 SCC 25, [2005] 1 SCR 401 at paragraph 55, “...an appellate court will not interfere with the trial judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result”.
[7] The self-represented appellant in the appeal before this court clearly feels aggrieved, not just by how he feels he was dealt a “bad hand” by the respondent, but also aggrieved by the findings of the trial judge. This appeal however, does not give the appellant the opportunity that he seeks; that is, to re-litigate findings of fact well-grounded in the evidence. The appellant had his day in court and the findings of fact on central issues determined by the trial judge do not begin to meet the standard of palpable and overriding error required to allow appellate intervention.
[8] On the central issue of whether or not Nightingale J. erred in finding as a fact that there had been no material change in the operation of the respondent’s business between 1996 and 2001, a review of the Reasons for Judgment make abundantly clear that Nightingale J. carefully reviewed all of the evidence before him, including the documentary evidence and fundamentally found against the appellant. In that regard, a finding was made by Nightingale J. that he did not accept the evidence of the appellant’s witnesses as being factual and preferred the evidence of the respondent’s witnesses. In that regard, at paragraph 90, Nightingale J. stated:
“The Plaintiff and Adel were fully informed even prior to their entering the original franchise agreement in 1996 that its franchise, along with all of the other franchise operations of Pizza Pizza, were in the process of being renovated into sit-down restaurants, the cost of which was going to be borne by the franchisees under the terms of the franchise agreement...”
[9] It is clear from a review of the detailed Reasons of Nightingale J. that he determined based on the evidence before the court that the appellant’s witness was not credible and that where the evidence of the appellant’s witness contradicted that of the respondent’s witnesses, the evidence of the respondent’s witnesses was to be preferred. In that regard, we can find no overriding or palpable error such that this court should overturn those findings.
[10] Having made the fundamental determination concerning whom he believed, Nightingale J. in our view correctly concluded that the respondent did not breach its disclosure obligations under the Act and that there was no material change in the operation of the respondent’s business between 1996 when the appellant entered into the original franchise agreement and later when it entered into the renewal agreement in August 2001.
[11] Having ruled against the plaintiff on the central issue as to whether or not there was material non-disclosure, the Reasons for Judgment then dealt with an assessment of damages. The focus of the appellant’s oral argument before us dealt with the valuation of the franchise as a going concern. In that regard, Nightingale J. assessed the value of the plaintiff’s franchise, excluding the equipment and small wares, at $50,000.00 as of August 2005. Having concluded that there was a value to the franchise as a going concern, Nightingale J. then moved to a determination as to whether the appellant had failed to mitigate its damages by not even attempting to sell the franchise business. In fact, the evidence, which really was not in dispute, was to the effect that the appellant had abandoned the franchise. With these facts in mind, Nightingale J. determined that the plaintiff had failed to mitigate its damages and therefore assessed the value of the franchise as a going concern at nil. We see no error in the determination of the valuation of the business, given the factual findings of Nightingale J. as it relates to the abandonment of the business by the appellant and thereby the failure of the appellant to mitigate its damages.
[12] Finally, with respect to the exercise of his discretion not to award interest to the appellant on the funds held by the respondent and the question of the valuation of the small wares, we are not satisfied that Nightingale J. exercised his discretion in an improper fashion that would warrant the interference of this court, nor are we satisfied that there was any error with respect to the valuation of the small wares.
[13] The appellant essentially sought to reargue its case before this court which is a most difficult thing to do because we are not re-trying the case. We find no overriding or palpable error with respect to the findings of fact. There is no basis to interfere with the decision of Nightingale J. The appeal is dismissed with costs, which are fixed in the amount of $15,000.00 inclusive of disbursements, plus HST.
Marrocco A.C.J.S.C.
Kent J.
Edwards J.
DATE: February 26, 2015
CITATION: 1201059 Ontario Inc. v. Pizza Pizza Limited, 2015 ONSC 1208
DIVISIONAL COURT FILE NO.: DC-13-495
DATE: 2015-02-26
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: 1201059 Ontario Inc., Appellant
A N D:
Pizza Pizza Limited, Respondent
BEFORE: Justices Marrocco, Kent and Edwards
COUNSEL: Adel A. Dibavar and Meysan Saffari, Appellants in person
M.R. Kestenberg and A. Hershtal, for the Respondents
ENDORSEMENT
MARROCCO, KENT, EDWARDS J.J.