Citation: Edelenbos v. Bandula, 2015 ONSC 354
NEWMARKET COURT FILE NO.: DC-13-00532
DATE: 20150116
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
BEN EDELENBOS Plaintiff/ Defendant by Defendant’s Claim (Respondent)
– and –
ALEX BANDULA also known as SANDOR BANDULA Defendant/ Plaintiff by Defendant’s Claim (Appellant)
COUNSEL:
D.G. Plaxton, for the Plaintiff/Respondent
L. Somerville Taylor, for the Defendant/Appellant
HEARD: January 9, 2015
REASONS FOR DECISION
On appeal from the decision of Deputy Small Claims Court Judge V. Stabile dated January 30, 2013
MULLIGAN J.:
[1] This is an appeal by Alex Bandula of the decision of Deputy Small Claims Court Judge V. Stabile. The judgment was dated the 30th day of January 2013.
[2] The appellant, Bandula, was the defendant in the trial. In his decision, the deputy Small Claims Court judge granted judgment for the plaintiff, Ben Edelenbos (Edelenbos), for damages as a result of a workplace altercation between the plaintiff and the defendant. The amounts awarded were the following: $3,000 for general damages; $3,062.09 for special damages; and costs fixed for the plaintiff in the amount of $2,150. The defendant’s counterclaim was dismissed by the deputy Small Claims Court judge.
The Facts
[3] There are some facts that are not in dispute. On August 27, 2007, the plaintiff and the defendant were involved in an altercation at a worksite. They did not work for the same employer. The plaintiff, Edelenbos, was a sheet metal worker. The defendant, Bandula, was involved in framing. There was a disagreement between them, a scuffle or fight broke out, workers separated them, and the plaintiff alleged that he was kicked in the leg and suffered injuries for which he sought compensation.
[4] The matter had a somewhat torturous path through the Small Claims Court. On the first day of trial, an issue arose about whether or not benefits under the Workplace Safety and Insurance Act[^1] should be pursued because both parties were working within the course of their employment when the alleged incident took place. The matter was adjourned so that a claim for benefits could be pursued under the Act.
[5] The Workplace Safety and Insurance Act Tribunal conducted a hearing and issued lengthy reasons outlined in Decision No. 1671/10. The Tribunal posed the following question at para. 5 of its decision:
(ii) Did the Applicant [the defendant Bandula in this action] take himself out of the course of employment by attacking/kicking the Respondent [the plaintiff Edelenbos]?
[6] I will have more to say about the Tribunal decision later in these reasons. However, the Tribunal determined that the plaintiff’s right of action in the Small Claims Court was not taken away. As was stated in the Tribunal’s decision at para. 6, “It is therefore the Court and not the Tribunal, to determine if the factual allegations are correct.”
[7] The matter was then remitted to the Small Claims Court. A hearing was conducted and a written decision was issued by the learned deputy Small Claims Court judge.
Position of the Appellant
[8] The appellant submits that the learned deputy judge made palpable and overriding errors of fact and law with respect to findings of liability, the quantum of damages awarded, and the costs awarded. The appellant also submits that the learned deputy judge erred in dismissing the defendant’s claim without providing reasons for doing so.
Position of the Respondent
[9] In seeking that this appeal be dismissed, counsel for the respondent submits that the deputy Small Claims Court judge rendered an eleven-page decision, considered all of the exhibits filed, and heard the testimony of the participants at trial. The decision indicates that there was ample evidence to find liability and that the damages were reasonable under the circumstances, given the injuries sustained and the time off work. The respondent further submits that the costs awarded by the learned deputy Small Claims Court judge were reasonable and fully within his discretion.
Tribunal Hearing
[10] It is clear that the deputy Small Claims Court judge paid deference to the decision of the Tribunal. As he stated in his decision at pages 7 and 8:
I was provided a copy of the transcript of the proceedings before the Tribunal. The Tribunal found inter alia, that the defendant was the aggressor. As such, the resulting altercation was considered to be outside the course of employment. Thus the plaintiff had the right to continue with this action against the defendant personally. … Given the expertise of the Tribunal in interpreting its own enacting legislation, the Tribunal is to be given due deference in this decision and I do so completely. [Emphasis in original.]
[11] In his analysis, the learned deputy judge stated, “I have had the benefit of oral testimony of the plaintiff, the defendant, and his common law partner.” He also made reference to various exhibits, including Exhibit 9, the transcript of the hearing held at the Workplace Safety and Insurance Appeals Tribunal. He also referred to the Tribunal’s decision in his costs award. As he stated, “Further he [the defendant] was found to be the aggressor by the Tribunal.”
Tribunal Ruling
[12] Because the learned deputy judge suggested that the Tribunal ruling was owed deference, it is important to review some aspects of that ruling. In coming to its decision that the plaintiff’s right of action to sue in Small Claims Court is not taken away, the Tribunal stated at para. 6:
I have found that the Applicant took himself out of the course of employment by kicking the respondent. Assuming the facts described by the Respondent, this was an act of assault. It is therefore for the Court, and not the Tribunal to determine if the factual allegations are correct.
[13] The conclusions of the Tribunal bear repeating here:
[39] I find that the right of action is not taken away.
[40] I have considered the issue on the basis of the allegations made by the Respondent in the statement of claim. The allegation is that the Applicant kicked the Respondent with a steel-toed boot while he was lying on the ground. That is the action that is alleged to have caused the injury. Whatever transpired prior to that time, in my view that was the act of an aggressor within the terms of the Board policy. Assuming, without deciding, the correctness of the allegation that the Respondent was lying on the ground at the time that he was kicked, nothing in the prior dispute would be sufficient to justify that action. In my view, that action, if proved, is sufficient to take the Respondent out of the course of his employment. I consider this analysis consistent with the approaches taken in Decision Nos. 2161/08, 1939/09 and 949/04, the decisions relied on by the parties on this point. Those decisions support the principle that the aggressor in a fight removes himself from the course of employment.
[41] However, I note that I have based my determination that the Applicant was not in the course of his employment on the facts set out by the Respondent in the statement of claim. Because I have found that the right of action is not taken away, it is for the Court, and not the Tribunal, to adjudicate with respect to the correctness of the Respondent’s allegations. I have not heard from the witnesses whom the Respondent alleges witnessed the kick. I have not made any findings, per se, about what occurred at the workplace, or about the extent of the Respondent’s injuries and/or about whether he was unable to work. It is for the Respondent to establish that evidence as Plaintiff in the Court proceeding. [Emphasis added.]
Standard of Review
[14] The standard of review of a judge’s decision was canvassed in Litwinenko v. Beaver Lumber Co., [2008] O.J. No. 2133. Divisional Court Justice S. Greer, stated at paras. 9 and 10:
[9] The standard of review of the Judge’s decision in the Appeal before us was set out by the Supreme Court of Canada in Housen v. Nikolaisen (2002), 2011 D.L.R. (4th) 577. On a question of law, the test is a matter of correctness, in which case the appellate court is free to replace the opinion of a trial judge with its own.
[10] On issues involving findings of fact, a judge is not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”, as set out in Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802. Further, if a judge has considered all of the evidence that the law requires him or her to consider and still comes to the wrong conclusion, this amounts to an error of mixed fact and law and is subject to a more stringent standard of review than that of palpable and overriding error.
Sufficiency of Reasons
[15] The Supreme Court of Canada addressed the issue of sufficiency of reasons in R. v. Shepherd, 2002 SCC 26, [2002] 1 S.C.R. 869. As Binnie J. stated at para. 55 (i):
The delivery of reasoned decisions is inherent in the judge’s role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large.
Conclusion
[16] I am satisfied that the learned deputy judge made an error of law in concluding that the defendant was liable for the plaintiff’s injuries. Although he reviewed the evidence before him in his decision, he did not come to an independent conclusion about liability and incorrectly relied upon the Tribunal’s qualified finding that the defendant was the aggressor, stating, “The Tribunal is to be given due deference in its decision, and I do so completely.”
[17] Clearly, the Tribunal made a decision within its policies and procedures on the limited record before it that the plaintiff could continue with his action. The Tribunal then correctly noted at para. 41:
It is for the Court, and not the Tribunal, to adjudicate with respect to the correctness of the Respondent’s allegations. … It is for the Respondent to establish that evidence as Plaintiff in the court proceeding.
[18] Within the Small Claims Court action, the defendant brought a defendant’s claim alleging that it was the plaintiff who started the altercation and thereafter demanded the plaintiff to pay him money, failing which, he would go to the police. Without giving reasons for doing so, the learned deputy Small Claims Court judge simply stated in his decision, “The defendant’s claim is thereby dismissed without costs.” It is important that unsuccessful parties understand the reasons for a decision dismissing their claim. Sufficiency of reasons is part of the core function of a judge, even in busy Small Claims Courts.
[19] In my view, the learned deputy Small Claims Court judge fell into legal error by incorrectly assuming that the issue of liability had been decided by the Tribunal, and then giving deference to that incorrect assumption. That conclusion, coupled with the lack of reasons for dismissing the defendant’s claim, require the matter to be remitted back to the Small Claims Court. For the foregoing reasons, I grant the appellant’s appeal and remit this matter back to the Small Claims Court for trial before a different judge as to the claim and counterclaim.
[20] I also note that the appellant referred to several other bases for its appeal, including allegations of errors that the judge made in misapprehending the medical evidence and the loss of income evidence during part of the time in question. The appellant also questions the amount of general damages awarded in this case, given the alleged injury to the plaintiff. I make no determination with respect to these issues and would refer the issue of damages to the Small Claims Court for a fresh hearing with respect to liability and damages.
[21] I therefore set aside the award of costs of the learned deputy Small Claims Court judge.
Costs of the Day
[22] At the conclusion of this hearing, both counsel agreed that the successful party ought to receive an award of costs of $3,000, including HST, plus disbursements, not to exceed $1,000. I therefore award costs to the appellant, Alex Bandula, in the amount of $3,000 plus disbursements not to exceed $1,000. Both counsel agreed that an agreement on disbursements would be reached via correspondence between counsel.
MULLIGAN J.
Released: January 16, 2015
[^1]: S.O. 1997, c.16.