Court File and Parties

CITATION: Grande National Leasing Inc. v. Vaccarello, 2015 ONSC 5463

DIVISIONAL COURT FILE NO.: 480/12

DATE: 20150916

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

GRANDE NATIONAL LEASING INC. Plaintiff/Respondent

– and –

TONY VACCARELLO and 1194419 ONTARIO LIMITED Defendants/Appellants

COUNSEL:

Michael Gayed, for the Respondent

Yuvraj Chhina, for the Appellant

HEARD: June 25, 2015 in Toronto

REASONS FOR JUDGMENT

MOLLOY J.:

A. INTRODUCTION

[1] Tony Vaccarello appeals from the decision of Deputy Judge Tait of the Small Claims Court dated August 28, 2012. Mr. Vaccarello is the defendant in a Small Claims Court action brought by Grande National Leasing Inc. (“Grande National”) in relation to a Dodge Durango it had leased to Mr. Vaccarello, but which Mr. Vaccarello had returned prior to the expiration of the term of the lease. The Deputy Judge dismissed a preliminary motion by Mr. Vaccarello seeking dismissal of the plaintiff’s claim and, after hearing evidence, granted judgment to the plaintiff for $6,121.01 and costs of $1,275.00.

[2] Mr. Vaccarello was self-represented at the trial. Grande National was represented by a paralegal. Both parties were represented by legal counsel on the appeal before this Court.

[3] The preliminary motion brought by the defendant related to an earlier Small Claims Court action brought by Grande National in respect of the same vehicle lease, which action had been dismissed for delay. The Deputy Judge did not properly consider this motion and did not give Mr. Vaccarello a fair opportunity to present his argument.

[4] The Deputy Judge’s handling of the trial on the merits was also unfair to the defence. Further, the Deputy Judge failed to properly consider key evidence.

[5] For the reasons that follow, the decision of the Deputy Judge is set aside.

B. BACKGROUND FACTS

[6] There is no dispute with respect to many of the key facts.

[7] On May 18, 2004, the appellants leased two new cars from Grande National: a Red Durango and a Black Durango. Both leases were for a period of 36 months. The Red Durango was returned to Grande National in December 2004 and sold by Grande National without any loss to it. It is the Black Durango that is the subject of these proceedings.

[8] At some point between December 2004 and July 2005, Mr. Vaccarello advised Grande National that he was terminating the lease on the Black Durango. The precise date upon which that occurred, and the date upon which the Black Durango came back into the possession of Grande National, is disputed.

[9] On July 28, 2005, Grande National commenced an action against Mr. Vaccarello and the numbered company in the Small Claims Court at 47 Sheppard Avenue, being Action # SC-05-0225199-00 (“the 2005 Action”). The name of the plaintiff’s lawyer/agent is shown as “Roland Paskar MA LLB” with an address in Concord. In that claim, Grande National alleged that Mr. Vaccarello contacted Grande National asking to return the two Durangos and to be released from his obligations under the leases. Grande National agreed that it would attempt to sell the vehicles at market value and apply the proceeds of sale to the credit of Mr. Vaccarello, but that he would remain liable in the event of any shortfall. Grande National stated that it was able to sell one of the vehicles but was not able to sell the Black Durango. According to the claim, the amount owing on that vehicle was $38,881.00 and Grande National was unable to locate a seller who was even willing to pay $30,000.00. Finally, Grande National asserted that it would accept the best offer it received, but anticipated a shortfall of at least $10,000.00 and waived its claim to anything more than $10,000.00 to bring its claim within the jurisdiction of the Small Claims Court.

[10] No defence was filed to this claim. Mr. Vaccarello testified that he did not know anything about this action until years later, and denied ever being served with the claim. The trial judge made no finding on this issue.

[11] On November 14, 2005, Grande National noted the defendants in default in the 2005 Action and asked for an assessment hearing to be scheduled. The first assessment hearing date of December 2, 2006 was adjourned to January 31, 2006. On January 31, 2006 Deputy Judge Mungovan adjourned the matter to June 9, 2006 with a handwritten Endorsement (partially illegible) directing Grande National’s agent (R. Paskar) to produce sale documents showing a sale price of $28,900.00 and other documents supporting the sum of $38,881.00 (being the total amount owing on the Black Durango as alleged in the claim). On June 9, 2006, the assessment hearing was again adjourned, this time to August 11, 2006. On August 11, 2006, nobody appeared for the assessment hearing. Accordingly, the action was dismissed by Order of Deputy Judge Wolfe.

[12] The plaintiff Grande National took no further steps in the 2005 Action, and in particular did not seek to set aside the judge’s Order dismissing that action.

[13] On February 29, 2007 Grande National started a new action issued out of the Small Claims Court in Richmond Hill against the same defendants and in respect of the same Black Durango (“the 2007 Action”). The name of the plaintiff’s lawyer is shown as “Capo Sgro LLP; Attn. Domenic Janetta” with an address in Woodbridge. In that claim, Grande National asserted that the defendants had defaulted under the lease and returned the vehicle in June 2005 and that as of that date the remaining payout under the lease agreement was $36,630.03. Grande National alleged that it had re-leased the vehicle in May 2006, at which time its capital value was $30,000.00 leaving a balance owing of $6,630.03. Grande National also claimed against the defendants for three months default in payment, for a total of $3,023.97, plus $75.00 for three NSF cheque charges. After crediting the defendants for the last month’s rent deposit, the plaintiff claimed $8,721.01 against the defendants.

[14] The defendants responded to the 2007 Action, denying any liability to the plaintiff in damages and also asserted a Defence Claim for $10,000.00. The defendants alleged that in December 2005 both the Red and the Black Durango were returned to Grande National, at which point neither vehicle had ever been driven except to move them from one place to another. Grande National was instructed to sell both vehicles. Grande National subsequently sold the Red Durango, but failed to account to the defendant with respect to the proceeds, despite repeated requests to do so. The defendants alleged that although the Black Durango was returned to Grande National’s lot, by January 2005 it was no longer there. The defendants further alleged that Grande National converted the Black Durango to its own use, in breach of its obligations under the contract. The defendants asserted a claim against Grande National with respect to the reduced value of the Black Durango caused by Grande National using it for its own purposes and its failure to account with respect to the sale proceeds of the Red Durango. There was also a claim for an unrelated matter involving a Dodge Caravan that had been involved in an accident and insurance claim in 2006.

[15] On September 3, 2009, the 2007 Action which commenced in Richmond Hill was transferred to the Toronto Sheppard Avenue Small Claims Court and given a new number, SC-09-089399-00. It is unclear as to why this was done. However, it appears to flow from the Order of Deputy Judge Skolnik on August 13, 2009. His Endorsement made at that time, states:

Costs of today in the amount of $500 to be awarded to the party in the cause as the trial judge may order. Rea (sic) for cost order on lengthy order on transcript.

[16] On September 17, 2009, when the action arrived at the Toronto Sheppard Small Claims Court, the administrative judge CMJ Thompson noted on the Endorsement Record:

(There is an order of RHSCC about other files. Please attend to it. The matter has had a settlement conference.) FR in other files.

[17] Presumably, this is an administrative directive arising from the Order made by Deputy Judge Skolnik in the 2007 Action.

[18] On October 19, 2009, without a motion before her and presumably based on the Order in the 2007 Action, CMJ Thompson made an Order remitting the matter to trial for an estimated three days and consolidating it with the 2005 Action. Her Endorsement states:

To trial. ETT 3.0. The Claim in 05-022599 is consolidated herewith (& deemed defended). TRIAL FEE PAID (in 22599)

[19] The next day, October 20, 2009, again without a motion before her, without notice to the parties and presumably as an administrative action, CMJ Thompson made the following Order in the 2005 Action:

1. The dismissal is set aside
2. To trial with SC-09-0893990-00 as part of that claim
3. The defence in SC-09-089399-00 is deemed to defend this claim, not consolidated into SC-05-022599-00

[20] Although the formal copy of the Orders made by CMJ Thompson on October 19 and 20, 2009 in the court file indicate that they were to be delivered to Tony Vaccarello at an address in Mississauga, there was no evidence in the record before me that this was actually done. Mr. Vaccarello denied knowing anything about the 2005 Action, or its dismissal, or the Order vacating the dismissal, until shortly before the trial before DJ Tait in 2012. There has been no finding on the accuracy of that assertion.

[21] After October 2009, the matter proceeded under the 2005 Action number, but on the basis of the pleadings in the 2007 Action. There were some interlocutory matters that have no bearing on the issue before me. The matter then came on for trial before DJ Tait on August 28, 2012, and was completed that day.

C. THE PRELIMINARY MOTION

[22] The first issue raised before the trial judge was the defendant’s preliminary motion to dismiss. The defendant’s position was that the prior Order dismissing the 2005 Action had not been properly set aside and that it was therefore binding. Further, since the defendant said the Durango was returned in 2004, his position was that the 2007 Action was commenced after the expiry of the two-year limitation period. He pointed to the discrepancy in the plaintiff’s position as to the date of default: in the 2005 Action the plaintiff pleads default occurred in 2004; and in the 2007 Action (which was commenced in February 2007) the default is alleged to have occurred in June 2005. The defendant submitted that this change shows that the plaintiff’s purpose was to avoid the limitation period issue by starting a new action with a different default date, rather than moving to set aside the dismissal in the existing action.

[23] It is clear that the trial judge had not read any of the material before trial. He expressed some confusion at the outset as to the nature of the motion. The defendant (Mr. Vaccarello), who was acting on his own behalf, attempted to explain and asked to make a “brief statement” with respect to the motion. The trial judge said, “I’ll give you two minutes.”[^1]

[24] Mr. Vaccarello proceeded to explain that he had no knowledge of the 2005 Action until receiving the plaintiff’s response to his motion. He spoke for only eight lines before he was interrupted by the trial judge. He told the trial judge that the 2005 Action had been dismissed, to which the trial judge responded “I’m sorry, but this claim has gone on and on for years. You can’t say it was dismissed. It must’ve been reinstated.”[^2] Mr. Vaccarello replied that it had been reinstated, but that he was unable to find the dismissal Order in the file, to which the trial judge stated, “I don’t need the dismissal Order. It was reinstated, that’s that.”[^3]

[25] Mr. Vaccarello submitted that the action was re-opened without motion or appeal, which he said was unfair to him. The trial judge stated, “How could it have been re-opened without motion or appeal? That’s not possible.”[^4] Mr. Vaccarello reiterated that this was in fact what happened. The trial judge then went off on a tangent for two pages making inquiries about a Divisional Court appeal unrelated to the preliminary motion and then asked Mr. Vaccarello whether he was maintaining that the Richmond Hill action was out of time to which Mr. Vaccarello said “Yes, Your Honour.” To this, the trial judge stated, “Well why did it take me to pry the information out of you?” Mr. Vaccarello apologized for his inexperience, to which the trial judge said, “Well, you’ve said a lot, but you didn’t say the most important thing.”

[26] In fact, Mr. Vaccarello’s motion material did set out the defence position that the 2007 Action was out of time. Further, Mr. Vaccarello had not been given a fair opportunity to make his argument with respect to the motion. When he tried to explain, the trial judge repeatedly interrupted, in a most unhelpful manner.

[27] The trial judge then turned to Mr. Sabbah, the paralegal representing the plaintiff, for assistance. Mr. Sabbah provided an explanation for the three action numbers in 2005, 2007, and 2009. The trial judge then reviewed at least one of the Orders made by CMJ Thompson, although it is not clear which one. Mr. Sabbah told the trial judge, incorrectly, “I believe ’05 was dismissed administratively.” Mr. Vaccarello responded, correctly, that it had been dismissed by an Order of the court.

[28] The trial judge does not appear to have read the file to determine if there had been a motion to set aside the dismissal of the action. He simply ruled, “Thank you. All right. We’re not going to deal with the motion. It’s deferred. We will proceed with the trial of the action.” That was the end of the matter. The trial judge never returned to the issues raised by the motion until his final Reasons at the conclusion of the trial.

[29] The trial judge did not consider the context in which Justice Thompson’s Order had been made and did not seek any information from the plaintiff as to whether or not there had been a motion to set aside the dismissal of the claim. He did not take into account the defendant’s argument that the Order had been made without a motion for such relief, nor did he consider whether the defendant had been treated fairly in that regard. He failed to consider whether the Order had been made without jurisdiction. He also ignored the issue of the limitation period defence.

[30] Further, the trial judge did not refer to any of these issues in his Reasons for Judgment. His Reasons were devoted entirely to the calculation of the quantum of the plaintiff’s claim. He returned to the issue of the motion only at the point where he was considering costs. When Mr. Sabah submitted that the plaintiff had incurred costs in responding to the motion, the trial judge stated, “It will be dismissed also. We’ll deal with that separately.”[^5] The trial judge granted judgment to the plaintiff for $6,121.01 and costs of $1,275.00 in respect of the main action. He then continued as follows:[^6]

The defendant’s claim was withdrawn during trial and added to the financial complexity of the case. In addition, the defendant brought a motion returnable at trial which generated an extensive response and initial investigation of a possible limitation defence defeated by the fact that the continuing consolidated action was commenced in 2005. The defendant shall pay costs of the motion, which is dismissed, and cost of the defendant’s claim to the plaintiff in a further amount of $1000.00 because of the unjustified expense and inconvenience suffered by the plaintiff.

[31] Finally, at the very conclusion of the proceedings, the trial judge added the following observation:

I might add, and this should be recorded, that in assessing the evidence before me, I have been distinctly unimpressed by the integrity of the evidence of Mr. Vaccarello. In all cases where there is a conflict between his evidence and that of the representatives of the plaintiff, I am satisfied that the plaintiff’s recollections are more reasonable and more entitled to be relied upon than the extraordinarily complex thinking that seemed to tangle Mr. Vaccarello in his oral presentation, both as a witness and as his own counsel. I hope that additional comment will be helpful to anybody who has occasion to review this matter.

[32] None of these statements by the trial judge constitute adequate reasons for dismissing the defence motion. Reasons must be at least sufficient to explain to the reviewing court the basis for the decision and to the losing party the basis upon which his position was rejected.[^7]

[33] The Order dismissing the plaintiff’s 2005 Action was made by a judge. It cannot be set aside by the administrative action of another judge, acting entirely on her own without notice to any of the parties. There was no motion before CMJ Thompson when she reinstated the action and listed it for trial. Even if there had been a motion, there are legal tests that must be met before the defaulting party is entitled to have the dismissal Order set aside. Typically, the plaintiff would be required, at least, to demonstrate why the default occurred, to adequately explain any delay in bringing the motion to set it aside, and to show there has been no prejudice to the opposing side. The fact that a party may have acted in bad faith may be a factor in considering whether to set aside the prior Order. In that regard, it would be relevant to consider the fact that the plaintiff had started another action for the same relief in another court office and that the plaintiff changed one of its material allegations in the new action. None of these factors were considered by CMJ Thompson in 2009, nor were they addressed by the trial judge in 2012.

[34] The trial judge was correct in his observation that it was impossible for the dismissal Order to have been set aside in the absence of a motion or appeal. However, he inquired no further. If he had, he would have discovered that this was in fact what happened, as indeed was conceded by both parties before me on the appeal. The Order setting aside the dismissal of the 2005 Action was made without jurisdiction. It is a nullity.

[35] The trial judge’s failure to properly consider the defendant’s preliminary motion on this point is an error of law. Likewise, his dismissal of the motion without reasons is an error of law. Finally, as I will develop more fully in the next portion of my Reasons dealing with the overall fairness of the trial, the trial judge treated the defendant unfairly in the course of the motion, preventing him from making his points and making sarcastic and unhelpful comments that could reasonably be perceived by the defendant as an indication that he had pre-judged this issue against him.

D. FAIRNESS OF THE TRIAL

General Principles

[36] The defendant in this case was not represented at trial. The plaintiff had the assistance of a paralegal. Although it can often be frustrating for a trial judge to deal with an unrepresented litigant, it is a reality every trial judge faces often, particularly in the Small Claims Court. Sometimes when a party is unrepresented, the trial judge may need to intervene more frequently than would be the case if both parties are represented by counsel. This is often necessary to explain the process to lay litigants and to clarify points of law and the relevance of evidence. Some leeway must be given to trial judges in managing their courtrooms efficiently and ensuring that trials proceed in an appropriate manner in accordance with the laws of evidence.[^8] However, the trial judge is required to be impartial. Repeated interventions by the trial judge, particularly if done in a sarcastic or denigrating manner, can lead a reasonable party to perceive that judge to be biased against him. In the face of such interjections, the affected party may reasonably believe that he is not receiving a fair trial. In such cases, the appellate court may, in the interest of justice, order a new trial.[^9]

[37] The test for determining whether a judge’s conduct gives rise to a reasonable apprehension of bias was defined by Cory J. in R. v. S. (R.D.)[^10] as follows at para. 111:

The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the requiRed information. . . . [The] test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through-- conclude. . . .”

This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram,supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold”:R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. . . .

[38] Cory J. also held (at para 94):

Trial judges in Canada exercise wide powers. They enjoy judicial independence, security of tenure and financial security. Most importantly, they enjoy the respect of the vast majority of Canadians. That respect has been earned by their ability to conduct trials fairly and impartially. These qualities are of fundamental importance to our society and to members of the judiciary. Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair.

[39] The Ontario Court of Appeal considered the effect of repeated interventions by the trial judge in Majcenic v. Natale[^11] as follows:

When a judge intervenes in the examination or cross-examination of witnesses, to such an extent that he projects himself into the arena, he of necessity adopts a position which is inimical to the interests of one or other of the litigants. His action, whether conscious or unconscious, no matter how well intentioned or motivated, creates an atmosphere which violates the principle that “justice not only be done, but appear to be done”. Intervention amounting to interference in the conduct of a trial destroys the image of judicial impartiality and deprives the Court of jurisdiction. The right to intervene is one of degree and there cannot be a precise line of demarcation but if it can be fairly said that it amounted to the usurpation of the function of counsel it is not permissible.

[40] It is important in a situation such as this to consider the whole of the trial, not merely isolated comments made by the trial judge. Those comments must, however, be considered cumulatively. I find in this case that the trial judge’s conduct crossed the line. In all of the circumstances, Mr. Vaccarello believed that he was not being heard, that his case was not being treated fairly, and that the judge was not being impartial. Further, in my view, a reasonable and informed observer would come to the same conclusion. In coming to that conclusion, I have considered the whole of the trial, including the conduct of the preliminary motion.

Interjections by the Trial Judge on the Preliminary Motion

[41] The difficulty arose almost immediately in dealing with Mr. Vaccarello’s preliminary motion, as I have already noted above, under the heading “Preliminary Motion.” The trial judge gave Mr. Vaccarello two minutes to make his argument, and then proceeded to interrupt him after almost every sentence he uttered. In the course of attempting to explain the basis of his motion, Mr. Vaccarello stated that he had returned the two Durangos prior to the expiry of the lease. That was relevant to his motion because the date of the return and Grande National’s actions in relation to the return had some potential bearing on the limitation period and prejudice to Mr. Vaccarello if the Order dismissing the 2005 Action was set aside. However, as soon as Mr. Vaccarello mentioned this point, the trial judge cut him off. The following exchange occurred:[^12]

THE COURT: See, you’re talking about the merits.

MR. VACCARELLO: Your Honour, just a statement of. . .

THE COURT: Why on earth would I dismiss any part of the plaintiff’s claim?

MR. VACCARELLO: Because Your Honour, based uh, my claim and based on evidence I was, I will. . .

[42] The trial judge then went on to say that he would hear the Defendant’s Claim on its merits, but that Mr. Vaccarello was not entitled to pre-empt the plaintiff from presenting its claim. Mr. Vaccarello repeated that the 2005 Action had been re-opened without notice to him, at which point the trial judge simply insisted that this was impossible. He refused to accept Mr. Vaccarello’s word that he had no notice, he did not examine the court file to see if there had been a motion, and he did not ask the plaintiff’s representative if there had been a motion. He simply disbelieved Mr. Vaccarello and made his decision accordingly. That was not an impartial determination. Further, it set the stage for what followed.

Interference by the Trial Judge During the Cross-Examination of Joseph Grande

[43] After refusing to deal with the merits of the preliminary motion, the trial judge directed the plaintiff to call its first witness, who was Joseph Grande, one of the owners of the plaintiff company. The trial judge intervened frequently during Joseph Grande’s examination in chief, but primarily to seek clarification of relevant points. However, once Mr. Vaccarello commenced his cross-examination, the trial judge took over completely. The first thing Mr. Vaccarello attempted to do was to put before Mr. Grande reports from the Used Car Dealers Association as to the history and use of the two vehicles. Mr. Grande claimed he had never seen these reports before. Mr. Vaccarello produced a fax indicating that the document had been disclosed to plaintiff’s counsel in 2009. Mr. Grande then launched into an explanation about his dealings with the dealership from which he purchased the two vehicles in order to lease them to Mr. Vaccarello and the relationship of Chrysler, the manufacturer of the vehicles, and the warranty on the vehicles. None of this was relevant to any issue in the action. Mr. Vaccarello tried to object. The witness then stated, “I’m talking. Do you mind?” Rather than listening to the basis for the objection, which was a valid one, the trial judge told Mr. Vaccarello to “be quiet please.”[^13]

[44] A short while later, Mr. Vaccarello objected to persons in the courtroom being disruptive and interjecting while Joseph Grande was under cross-examination. Again, he was shut down by the trial judge who stated, “You’ve been interjecting and interrupting far more than anybody else.” He then instructed persons in the courtroom, “If there is any whispering to go on, for heaven sakes, keep it quiet.”[^14] This was during the course of Mr. Vaccarello’s cross-examination, even though he had barely been able to ask any questions of the witness. The appellant argued before me that the basis for Mr. Vaccarello’s objection was that Nicholas Grande, the son of the witness Joseph Grande and also an officer of Grande National, was coaching his father on the appropriate answers to questions from the body of the court. There is some support for this argument at page 51 of the transcript. When Joseph Grande was being asked by the trial judge about the calculation of monthly payments, Mr. Vaccarello interrupted, stating “No, no, no, you don’t talk.” This comment was apparently directed to somebody in the body of the courtroom, whom the parties acknowledge was Nicholas Grande. At this point, the trial judge did direct that this should stop, stating (at pages 51-52):

THE COURT: There’s been repeated reports to me that you have been talking and the chap at the back of the room have been waving at each other and what not. It must cease or you will have to leave.

UNIDENTIFIED SPEAKER (acknowledged to be Nicholas Grande): Okay, Your Honour.

THE COURT: You may speak in quiet confidence to your counsel.

[45] On the basis of the record before me, I cannot say that the trial judge ought to have taken this action earlier. Neither is it possible to determine that there was any harm done as a result of interference by Nicholas Grande. Although it is unfortunate that this conduct was not noticed and nipped in the bud earlier, I do not find this particular issue to be a basis for finding the trial was unfair.

Refusal to Permit Mr. Vaccarello to Elicit Evidence About the Red Durango

[46] In the course of his cross-examination of Joseph Grande, Mr. Vaccarello asked if Grande National had ever provided an accounting to the defendant following its sale of the Red Durango. The following exchange occurred:

MR. GRANDE: No, I didn’t. You wanna know why?

MR. VACCARELLO: No.

MR. SABBAH: It’s not the subject . . .

MR. GRANDE: That’s right.

MR. SABBAH: . . . of the litigation your Honour, objection. It’s just the Black Durango.

THE COURT: We’re talking about the Red one?

MR. SABBAH: Yes.

MR. GRANDE: Yeah.

THE COURT: Well then, forget it.

MR. SABBAH: It’s not the subject of the litigation.

THE COURT: It’s it’s . . .

MR. VACCARELLO: Oh.

THE COURT: We’re dealing with the Black Durango

MR. SABBAH: The Black Durango

MR. VACARELLO: Only the Black Durango, yeah. I apologize cause I, I thought the files were consolidated.

THE COURT: There is no claim with respect to the Red Durango. There is only a claim with respect to the Black Durango.

[47] Thereafter, Mr. Vaccarello was not permitted to deal at all with the Red Durango. This arose at numerous other points in the trial. Any time Mr. Vaccarello mentioned the Red Durango, the trial judge would not permit him to continue. There was in fact a claim with respect to the Red Durango. The defendant had asserted a claim in the 2007 Action that he was entitled to an accounting of the proceeds received by Grande National from the sale of the Red Durango. It was Mr. Vaccarello’s understanding that this defendant’s claim had been consolidated into the action being tried by the trial judge, and he was correct in that understanding. However, the trial judge refused to permit him to pursue it, without ever inquiring into the merits of the claim.

Gratuitous and Denigrating Comments About the Defendant Before and After Lunch

[48] This issue about the Red Durango arose just before the lunch break. Mr. Vaccarello was again trying to explain to the trial judge the relevance of the 2005 Action. It was clear the trial judge was becoming exasperated. Mr. Vaccarello apologized, stating to the trial judge, “Again, your patience is greatly appreciated, to which the trial judge answered, “Well, I’m afraid you’re giving me credit for something that is disappearing.” He then announced an adjournment for 45 minutes for lunch and told Mr. Vaccarello to spend that time getting organized.

[49] Upon returning after lunch, Mr. Vaccarello advised that he had now located in the court file the Endorsement of Judge Wolfe dismissing the 2005 Action. The following exchange occurred:[^15]

THE COURT: It does not matter. The case has been reinstated, I have told you three times.

MR. VACCARELLO: Very well, Your Honour. May I proceed with cross-examination of the . . .

THE COURT: That’s the only reason you are here.

[50] Mr. Vaccarello then attempted to take Joseph Grande to the plaintiff’s claim in the 2005 Action, but mistakenly referred him to the page number for the defendant’s claim. He apologized for the confusion, to which the trial judge commented, “It’s a good thing we only gave you 45 minutes to get organized,” Mr. Vaccarello then had the witness acknowledge that both claims, the 2005 Action and the 2007 Action had been filed by his lawyer on his instructions. Having obtained that concession, Mr. Vaccarello moved on to a different point, whereupon the witness interjected, and the following exchange ensued:[^16]

MR. VACCARELLO: Thank you sir. Now sir, I’d like to take you to the mileage of these vehicles because when you gave evidence earlier you stated . . .

MR. GRANDE: What is the point in this? You’re making – you’re asking something and you don’t finish. What is your point?

MR. VACCARELLO: I’m asking the questions, Mr. Grande.

THE COURT: Well, he has to understand what you’re talking about.

MR. VACCARELLO: Well, I wanted him to acknowledge that that is his claim and that Mr. Janero [sic] filed on his behalf.

THE COURT: You’re asking him to acknowledge the brutally obvious.

[51] This was an unfair interjection by the trial judge. Mr. Vaccarello’s questions were clear and straightforward. It was relevant to the defence to demonstrate that both actions were commenced by counsel for Grande National upon the direction of Grande National. It was also relevant to the defence to show that Grande National took different positions in the two actions as to the date upon which Grande National accepted the return of the vehicles, a crucial point for the defence and one that was also highly relevant to credibility. It is not for the witness to query his cross-examiner as to the point of the questions asked, nor is it the role of the trial judge to simply back up the witness. The question had been asked and answered. The trial judge ought not to have permitted the witness to fence with Mr. Vaccarello in this manner. Further, his comment that this was “brutally obvious” was both unfair and unnecessarily denigrating.

Trial Judge Elicited Irrelevant and Admissible Evidence as to Purported Fraud

[52] Nicholas Grande was the second witness to testify for the plaintiff. He testified that the lease for the Black Durango started in May 19, 2004 and that payments were to be made by pre-authorized withdrawals from the defendant’s bank account. He said that the last payment Grande National received was on March 1, 2005. The early portion of Nicholas Grande’s testimony was elicited as a result of questions from the trial judge as he struggled to understand how Grande National’s accounting system had dealt with the financial loss from the return of the vehicle by Mr. Vaccarello and subsequent re-lease of the vehicle to Leave It To Us Weddings. The trial judge noted that the Black Durango had not been driven at all by Mr. Vaccarello from the time he signed the lease and the time the vehicle was returned and asked for an explanation for the 18,000 km put on the vehicle as of the time it was leased to Leave It To Us Weddings. Mr. Grande testified that Grande National staff would use their vehicles that were available for sale as part of their marketing to show the vehicles. The trial judge then asked Mr. Grande if he had “any knowledge as to why the defendant wanted to have a vehicle that he never drove.” Mr. Vaccarello objected to the relevance of this question. The trial judge directed, “Let him answer.” The witness then stated, “To fraud Chrysler.” Mr. Vaccarello again objected to the relevance of this line of evidence. The following exchange occurred:

THE COURT: I want to know what the answer is and what it meant.

MR. VACCARELLO: I object strongly to this line of evidence being introduced.

THE COURT: Please sit down for the moment. If it turns out you’re right we’ll strike the whole thing out, but I need to know what it is he’s saying. You have brought up the word fraud which is extremely serious. The question was, why would a buyer seek to lease a vehicle that they had no intention of ever driving and you say to defraud Chrysler and I don’t understand that.

[53] Nicholas Grande then proceeded over the next four pages of testimony to describe what he believed to be the fraudulent conduct. In fairness to the witness, he started out by saying, “Well again, this is hearsay because it is my opinion,” but he thanked the judge for the opportunity to present it. None of this evidence was even remotely relevant to any issue before the court, nor had it been pleaded by anyone. Ultimately, the trial judge himself concluded that this evidence was not relevant, and stated, “We will go back to the beginning of the answer to my question and the whole will be deleted from the record.”

[54] In his Reasons for Judgment, the trial judge returned to this point, stating as follows:[^17]

For reasons that have never been sensibly explained, the defendant and those associated with him, including a Mr. Kirschner, who attended as one of the people to pick up the two vehicles [sic]. Apart from that acceptance of delivery, Mr. Vaccarello says that the vehicles were never driven or used. There is no dispute that while they were in his possession and control that that is true. Why it happened is a complete mystery. A speculative explanation started to be given by one of the witnesses for the plaintiff, but I found it was wholly conjectural and entirely outside the ambit of the pleadings in the action and that portion of the evidence was struck out and I am satisfied that it remains appropriate that it be struck out.

[55] First of all, the trial judge appears to be under the misapprehension that sworn evidence given by a witness can be struck out of the record of a proceeding. That is not the case. The court reporter maintains a verbatim transcript of everything that is said in the courtroom. Regardless of whether evidence is subsequently ruled to be inadmissible, it remains part of the evidence at trial. Sometimes irrelevant evidence makes its way into a trial. That is inevitable in the trial process. The trier of fact must endeavour in those situations to disregard irrelevant evidence and only take into account the evidence that would have been properly admissible as relevant.

[56] In this case, the trial judge opened up a line of inquiry solely to satisfy his own curiosity. There was an immediate objection to the admissibility of that evidence, which he peremptorily overruled without giving Mr. Vaccarello an opportunity to be heard on the point. This was not a situation in which it was necessary to hear the evidence before determining whether it was admissible. It was plainly irrelevant to any issue the trial judge needed to decide. Further, the issue was not raised in the pleadings and, indeed, had not been raised by the parties themselves at trial. The trial judge erred in law by overruling the objection and directing the witness to answer the question. He further erred by not interrupting immediately once the witness himself stated that he had no direct evidence and could only offer hearsay and personal opinion. Notwithstanding that the evidence was inadmissible hearsay and opinion evidence, as well as irrelevant, the trial judge continued to hear it.

[57] The question on appeal is whether these legal errors were corrected by the trial judge’s Reasons in which he stated that the evidence was irrelevant and would not be taken into account. In my view, there are two obstacles to such a finding. First, it was the trial judge who introduced the evidence through his own independent inquiry of the witness. Particularly in light of the objection by Mr. Vaccarello, this creates a reasonable apprehension of bias. Second, the line of inquiry pursued by the trial judge was an affront to the integrity of the defendant. When this is seen against the negative credibility findings against Mr. Vaccarello, the concern about lack of impartiality is compounded. I note as well, that the credibility finding against Mr. Vaccarello was impressionistic and not rooted in any evidence or analysis. That excerpt from the Reasons is set out above, but I repeat it here for ease of reference, as follows:

I might add, and this should be recorded, that in assessing the evidence before me, I have been distinctly unimpressed by the integrity of the evidence of Mr. Vaccarello. In all cases where there is a conflict between his evidence and that of the representatives of the plaintiff, I am satisfied that the plaintiff’s recollections are more reasonable and more entitled to be relied upon than the extraordinarily complex thinking that seemed to tangle Mr. Vaccarello in his oral presentation, both as a witness and as his own counsel. I hope that additional comment will be helpful to anybody who has occasion to review this matter.

[58] The trial judge simply made a bald finding that he preferred the evidence of the plaintiff as being more “reasonable” and more “entitled to be relied upon.” He cited no examples of any evidence where the plaintiff’s evidence conflicted with that of Mr. Vaccarello, and where the plaintiff’s evidence could be said to be more reasonable. In fact, there was very little conflict in the evidence as to the central facts, with the exception of the date upon which the Black Durango was returned to Grande National. On this point, Grande National’s witnesses gave evidence that is contradicted by their own earlier pleading. The trial judge did not address this inconsistency. Also, there was consistent evidence that the two Durangos were returned at the same time and that the Red Durango was sold by January. This would appear to corroborate the evidence of the defendant, rather than the plaintiff, as to when the Black Durango was back in the possession of Grande National. In the absence of any articulated reason for rejecting the whole of Mr. Vaccarello’s evidence as lacking in integrity, the fact that the trial judge not only admitted irrelevant evidence relating to Mr. Vaccarello’s character, but actually elicited that evidence himself, is rendered all the more problematic.

[59] In his cross-examination of Nicholas Grande, Mr. Vaccarello attempted to review with him the basis for the fraud allegation. The trial judge did not permit this questioning, as he had already ruled this line of inquiry to be irrelevant.

[60] Later in his cross-examination of Nicholas Grande, Mr. Vaccarello asked a question about the subsequent lease of the Red Durango after it had been returned to Grande National. The following ensued:

A. I can’t wait to answer this Your Honour. Except it’s going to bring that matter that we’ve stricken, or struck, back into the equation, so I’ll allow you to tell me how you want me to answer the question.

THE COURT: Is this the Red Dodge Durango?

A. Yes it is.

THE COURT: Well, I don’t see any reason to question it at all.

Q. He’s stated Your Honour, and I’m asking that he say that . . .

THE COURT: You opened this door. All of this is going to land on you.

A. I would love to answer the question.

THE COURT: Go.

A. Okay.

THE COURT: I feel like I’m being fooled around with and I don’t like it. I want to know if you have a defence to the claim for $8,700.00 and I want to know what your claim is and whether it has any merit. I’m awfully hard pressed to understand how you could have a claim over vehicles you never used or did anything about, one of which you were relieved of at no cost to you and the other one is the subject of this action.

[61] At this point, quite understandably, Mr. Vaccarello dropped the point and moved to another issue involving the wording of the residual value clause in the lease agreement. This is another example of Mr. Vaccarello being prevented from exploring the issue of the failure of the plaintiff to provide any accounting after their sale of the Red Durango. This was pleaded in the Defence Claim and there had been no ruling as to it being an irrelevant or improper pleading. However, Mr. Vaccarello was threatened with a re-opening of the fraud allegation if he pursued this line of examination. Firstly, I cannot see what one has to do with the other. Secondly, the manner in which it was done was rude and threatening. In particular, the trial judge’s statement that he felt that he was being “fooled around with” is unfortunate, as well as the fact that he didn’t like it. Further, it was improper for the trial judge at this point to demand of Mr. Vaccarello what his possible defence could be to the $8,700.00 claim. Mr. Vaccarello was still in the process of cross-examining the plaintiff’s witnesses at this point and had yet to give evidence himself. Further, the basis of his defence was set out in the pleadings, including the fact that the plaintiff had used the Black Durango extensively for its own use without accounting for the value of that. Finally, at the end of this interjection, the trial judge again raised the issue that Mr. Vaccarello had not driven the vehicles after he leased them; an issue which he had already ruled to be irrelevant.

[62] This exchange is unfair and supports an inference that the trial judge had already made up his mind against Mr. Vaccarello before he had heard any evidence from him. The comments made by the trial judge give rise to a reasonable apprehension of bias.

Trial Judge’s Comments at Start of Plaintiff’s Case

[63] The plaintiff’s case occupied the morning and most of the afternoon. When the plaintiff closed its case, Mr. Vaccarello stated that he wished to call Mr. Lakshman Doobay as his first witness. Mr. Vaccarello’s examination in chief was succinct. After getting some brief biological background information about the witness, he asked Mr. Doobay what information he had about the Black Durango. Mr. Doobay testified that he was a regular, long-standing customer of Grande National, having purchased four vehicles from them over the years. He testified that he spoke with Joseph Grande in about March/April 2005 about leasing another vehicle. He said Mr. Grande told him that a real estate company had leased two vehicles, a Red and a Black Durango, and then gone under. Mr. Grande further told him that he had sold the Red vehicle, but that he was driving the Black Durango himself because the real estate company was still paying the lease and it was therefore costing him nothing.

[64] This evidence occupied approximately one page of the transcript. At that point, the trial judge intervened and asked some questions. From that exchange, Mr. Doobay elaborated that he told Mr. Grande that he was not interested in the Black Durango because it was too big. He also testified that at the time of this discussion with Mr. Grande, he did not know Mr. Vaccarello at all. He first met Mr. Vaccarello in the course of a real estate transaction in 2007. The total examination in chief, including interjections by the trial judge was less than three pages.

[65] The cross-examination of Mr. Doobay went for just over four pages and no new evidence was elicited. Towards the end of Mr. Doobay’s evidence, the trial judge commented, “I don’t understand anything to be inconsistent with what we’ve already been told.” He then added, “Why am I being burdened with this evidence?”[^18] At the close of Mr. Doobay’s evidence, Mr. Vaccarello indicated that he had another witness, to which the trial judge queried, “Well, is it another one of those?” Mr. Sabbah, agent for the plaintiff suggested a brief adjournment, at which the trial judge turned to Mr. Vaccarello and stated:[^19]

THE COURT: Yes. It’s 4:00. Do you want to finish today? Or are you going to drag this thing open forever?

MR. VACCARELLO: No, no. I think I’ll be relatively quick, but I wouldn’t mind a few minutes to collect my thoughts.

THE COURT: Well, I gave you 45 minutes at lunch. It didn’t seem to do much good. We’ll take a 10 minute break.

[66] These comments by the trial judge were unseemly.

[67] Mr. Doobay had relevant evidence to provide to the court. He was a completely neutral and impartial witness. On the one hand, he assisted the plaintiff’s case by stating that in March or April 2005, Mr. Grande had asked him if he was interested in leasing the Black Durango, thus supporting the plaintiff’s position that they were attempting to market that vehicle. On the other hand, Mr. Doobay’s evidence confirmed Mr. Vaccarello’s contention that Grande National was taking unfair advantage of the fact that he had kept up the lease payments for a period of time and had converted the vehicle to their personal use because it was costing them nothing to do so. It was unfair of the trial judge to say he was being “burdened” by this evidence, and to query whether the next witness was going to be “another one of those,” both of which statements he made in the presence of this neutral witness who had taken the time to come and testify.

[68] The plaintiff’s case had taken virtually the entire day. It was unfair of the trial judge to ask the plaintiff who had yet to testify, if he was going to finish that day or “drag it on forever.” There would be many lawyers with trial experience who would find such an inquiry to be intimidating. The situation is far worse for an unrepresented lay litigant. The trial judge’s parting shot – to the effect that the 45 minute lunch recess did not appear to have assisted Mr. Vaccarello in collecting his thoughts – was gratuitous, sarcastic, and denigrating. This is not the kind of language or demeanour that should be used by a trial judge. It cannot instill the person on the receiving end with any sense that his case will be treated with impartiality or fairness. Further, it is inconsistent with what the general public is entitled to expect from judges administering the justice system.

Unfair Treatment of the Plaintiff’s Evidence

[69] The plaintiff’s case began at approximately 4:20 in the afternoon. The trial judge asked if he was intending to proceed with his Defence Claim and he stated that he wanted to provide evidence about the Black Durango and the Red Durango. The trial judge then asked him if he was proceeding with the aspect of the Defence Claim relating to a Dodge Caravan that had been involved in an accident and settlement in 2006, and Mr. Vaccarello replied, “No I’m not.” The entire exchange about that aspect of the Defence Claim occupied six lines of the transcript.

[70] Mr. Vaccarello then took the stand. The transcript of his evidence in chief begins just past the mid-way point at page 114 of the transcript. He was not permitted to simply provide his evidence. The first five pages of the transcript of his evidence can only be fairly described as cross-examination by the trial judge, culminating (at page 19) with the question, “Can you tell me in 20 words or less where the $51,555.50 comes from?”

[71] At this point, Mr. Sabbah interjected, “If you want, my client could answer you quite readily in ten words or less.” The trial judge ought to have told Mr. Sabbah that Mr. Grande had finished his evidence and that it was now the defendant’s turn to testify. Instead, he responded “please” and then proceeded to have a conversation with Mr. Grande, back and forth for two and a half pages, until Mr. Vaccarello objected. After that, the trial judge stopped questioning Mr. Grande and resumed cross-examining Mr. Vaccarello for another four pages. Throughout Mr. Vaccarello’s attempt to give evidence, the trial judge actually spoke more than the witness did. This was thoroughly unfair to the defence.

[72] The cross-examination of Mr. Vaccarello by Mr. Sabbah then commenced. Mr. Sabbah’s cross-examination was devoted almost exclusively to the relationship between Mr. Vaccarello and the numbered company that had leased the vehicles.

[73] Mr. Vacarrello’s attempt to give evidence was essentially an argument, back and forth, with the trial judge. He was not permitted to develop his points with respect to the basis for his Defence Claim, he was not permitted to say anything at all about the Red Durango and his points about the plaintiff’s failure to mitigate were dismissed out of hand as soon as he uttered them. Again, this gives rise to an apprehension of bias. It would have been reasonable for Mr. Vaccarello to believe that he was not being treated impartially, and he did come to that conclusion.

Cumulative Effect of Conduct of Trial

[74] As I stated at the outset, it is often difficult for a trial judge to remain patient when dealing with lay litigants. Some latitude must be given to busy trial judges in a court with multiple unrepresented parties taking up more time than should be necessary to deal with relatively straightforward claims. That, however, is not this case. From start to finish, the trial judge in this case interrupted and denigrated the unrepresented defendant. Mr. Vaccarello was not given a fair opportunity to develop his case, to cross-examine witnesses, or to present his own evidence. There were numerous comments by the trial judge that were sarcastic and which put unnecessary pressure on the defence. Even if each example I have cited would not have been sufficient standing alone, the cumulative impact of the trial judge’s conduct is overwhelming. A neutral observer would reasonably conclude that the trial judge was not being impartial and that the defendant did not have a fair hearing. In my opinion the defence has met the test for establishing that Mr. Vaccarello did not receive a fair trial in this case. He is entitled to a fair trial. Therefore, the decision of the trial judge in this case is set aside.

E. REASONS OF THE TRIAL JUDGE ON THE MERITS

[75] My conclusion as to the fairness of the trial is sufficient to dispose of this appeal. However, for the sake of completeness and in the event of a further appeal, I will deal briefly with the alternative grounds of appeal.

[76] I have already stated my findings with respect to the preliminary motion. The merits of that motion were simply not addressed at all in the Reasons. On appeal, counsel for the plaintiff/respondent argued that the defendant could not now challenge the validity of the Order of CMJ Thompson setting aside the dismissal of the 2005 Action because the defendant failed to raise the issue in an earlier Divisional Court appeal on another issue. I do not agree. The issue before Sanderson J. on that appeal was an entirely different matter. Sanderson J. did not rule on the validity of the Order of Justice Thompson; she knew nothing about it. Sanderson J. ordered the matter to trial, but that did not prevent the defendant from raising this issue as a preliminary matter. This is particularly the case because the Order in question was made without jurisdiction.

[77] The trial judge’s Reasons on the merits deal only with the calculation of damages. The trial judge appeared to have proceeded on the premise that default occurred in April 2005 and that this was reflected on the books of the plaintiff in June 2005. The trial judge failed to take into account the evidence of Mr. Vaccarello and the prior pleadings by the plaintiff that the Black Durango was returned in December 2004. He also failed to consider the defendant’s assertion that the plaintiff agreed to accept the termination of the lease and to re-sell or re-lease the vehicles, subject to the defendant being liable for any shortfall. Further, the trial judge did not deal with whether the payments by the defendant on the Black Durango lease for January, February and March were by way of mitigation by the defendant so that the plaintiff would have time to find a new purchaser for the vehicle.

[78] The trial judge gave no reasons for dismissing the Defence Claim. He appears not to have understood that the defendant was claiming for the diminution in value of a pristine, undriven vehicle as a result of the plaintiff and/or its staff having put 18,000 km on the vehicle in the 16 month period the plaintiff had the vehicle before re-leasing it. The lease the defendant signed with the plaintiff, and the subsequent lease to Leave It To Us Weddings allowed for 2000 km per month. If that is the normal full-time use of a vehicle, it is difficult to understand how the dealer managed to put 18,000 km on the Black Durango in 16 months. The trial judge did not address this issue in his Reasons. The trial judge also did not address what steps were taken by the plaintiff to mitigate its damages, other than to accept the plaintiff’s evidence that it was difficult to get rid of the Black Durango because of a rebate offered by Chrysler on new vehicles.

[79] The trial judge did not address whether this was an early termination of the lease, accepted by the plaintiff, as opposed to a repossession of the vehicle after default. He did not address the defendant’s argument about how damages were to be calculated under the terms of the lease in the event of early termination and whether those provisions applied in this case. He also did not address whether the plaintiff was under any obligation to advise Mr. Vaccarello, as the person ultimately liable, that the plaintiff was unable to re-lease the vehicle and to give Mr. Vaccarello the opportunity to mitigate his loss by buying back the vehicle.

[80] During the sixteen months that the plaintiff had the vehicle, the license plates were changed on several occasions, for various periods of time as follows:

• The original plate was ATVF 804, placed on the vehicle May 18, 2004.
• The original plate was terminated on January 26, 2005.
• ARJW 475 was attached on January 26, 2005 and removed February 3, 2005.
• ATBR 477 was attached on June 27, 2005 and removed on July 4, 2005.
• AFWF 461 was attached on May 26, 2006 and removed on September 11, 2007.
• A vanity plate CEULTR was attached on September 23, 2005 and removed May 26, 2006.

[81] The trial judge did not deal with the implications of this undisputed evidence.

[82] Mr. Vaccarello alleged that the Red and Black Durangos were related transactions and that he was entitled to an accounting with respect to what happened to the Red Durango. The trial judge did not deal with that allegation, other than to say that the Action had nothing to do with the Red Durango and to limit the evidence to matters relating to the Black Durango.

[83] In short, the trial judge’s Reasons are essentially a set of calculations as to how to quantify the plaintiff’s claim. None of the defence allegations are dealt with. I should not be taken to have agreed with the calculations of the trial judge, nor to have found that there was any merit to the various claims put forward by the defendant. However, the Reasons provide no explanation as to why the defence position was rejected in its entirety. The Reasons are not adequate to explain to the defendant why he lost, nor are they adequate to permit proper appellate review.

[84] Further, it would appear that the trial judge completely overlooked key aspects of the evidence, including issues relevant to the credibility of the plaintiff’s witnesses and, most importantly, relating to the plaintiff’s own use of the Black Durango and whether the defendant is entitled to any compensation for the resulting devaluation of the vehicle.

[85] The trial judge gave an enhanced award of damages to the plaintiff on the main action because he found that “the plaintiff’s relatively straightforward case” was “made terrifically difficult by the confusion injected into the trial by Mr. Vaccarello.” With respect, I consider that to be an unfair characterization of the positions taken by the defence.

[86] Further, the trial judge found that the “defendant’s claim was withdrawn during trial and added to the potential complexity of the case.” Again, this is an unfair characterization. The defendant withdrew only one portion of his claim, and he did so immediately upon the start of his case. None of the plaintiff’s evidence dealt with this aspect of the Defence Claim, nor did the defence touch it in cross-examination. The entire issue occupies six lines of transcript.

[87] In addition, the trial judge awarded costs of $1,000.00 to the plaintiff for the defence preliminary motion, which he described as “an unjustified expense and inconvenience” for the plaintiff. Again, I do not accept this as a fair characterization, particularly given the fact that the plaintiff was well aware that it never brought a motion to set aside the dismissal of the 2005 Action and did not bother to correct the trial judge’s repeated assertion that there must have been such a motion.

[88] Given these deficiencies in the Reasons and the failure to address key issues in the action, I would have set aside the decision of the trial judge in its entirety even if I had reached the conclusion that the trial itself had been procedurally fair.

F. CONCLUSION and ORDER

[89] For the reasons stated, the decision of Deputy Judge Tait dated August 28, 2012 cannot stand and is set aside in its entirety.

[90] I am satisfied that the Order of CMJ Thompson dated October 19, 2009, purporting to set aside the dismissal of the 2005 Action was made without jurisdiction. Accordingly, that Order is set aside.

[91] In the result, the Order dismissing the 2005 Action still stands. That Order would be an impediment to commencing a new action in 2007 based on the same cause of action for the same lease and same vehicle. It seems to me that two motions are appropriate: one by the defendant to dismiss the 2007 Action as an abuse of process in light of the earlier action; and one by the plaintiff to set aside the dismissal of the 2005 Action. Those motions should appropriately be heard in the Small Claims Court. I am not directing that those motions must be brought. However, before a new trial can be ordered, two issues must be resolved: (1) whether the 2007 Action was validly brought; and (2) whether the dismissal of the 2005 Action is final. It is up to the parties whether they wish to bring those motions.

[92] The defendant has been wholly successful and is entitled to his costs. Disbursements were $2,344.75 and I have no difficulty with that claim. The defendant also seeks fees on a substantial indemnity basis in the amount of $9,600.00. I do not see this as an appropriate case for substantial indemnity costs. However, I do recognize the result achieved by the defendant may well have been inevitable given the irregularity that arose as a direct result of the plaintiff commencing a second action in a different court, rather than taking the proper steps to set aside the dismissal of the original action. To that extent, the plaintiff is the author of much of its own misfortune. Accordingly, I am not inclined to reduce the costs I might otherwise award to reflect the relatively small monetary amount involved. Defence counsel kept costs to a minimum by having much of the work done by a law clerk, thereby reducing the amount the award might otherwise have been. In my view, the appropriate total award for fees is $6,000.00. Plaintiff’s counsel, the respondent in the appeal, was seeking approximately $4,400.00 if successful. Therefore, the fee I have awarded to the defendant is not beyond the reasonable contemplation of the parties. Accordingly, costs are fixed at $8,344.75, inclusive of tax and disbursements, payable forthwith to the Appellant/Defendant Vaccarello.

MOLLOY J.

Released: September 17, 2015

CITATION: Grande National Leasing Inc. v. Vaccarello, 2015 ONSC 5463

DIVISIONAL COURT FILE NO.: 480/12

DATE: 20150916

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

GRANDE NATIONAL LEASING INC. Plaintiff/Respondent

– and –

TONY VACCARELLO and 1194419 ONTARIO LIMITED Defendants/Appellants

REASONS FOR JUDGMENT

Molloy J.

Released: September 17, 2015

[^1]: Transcript, p.5 [^2]: Transcript, p.6 [^3]: Ibid [^4]: Transcript, p.7 [^5]: Transcript, pp. 140-141 [^6]: Transcript, p. 142 [^7]: R. v. Sheppard [2002] 1 S.C.R. 869, 2002 SCC 26 [^8]: Chippewas of Mnjikaning First Nation v. Ontario, 2010 OMCA 47, leave to appeal to the S.C.C. refused, 33613 (July 18, 2010) [2010] CarswellOnt. 4919 (S.C.C.) at paras. 230 and 233; Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522 (C.A.); Rourke v. Toronto (City), 2012 ONSC 2563 (Div.Ct.). [^9]: Shoppers Mortgage & Loan Corporation v. Health Wellington Squares Ltd. (1995), 23 O.R. (3d) 362 (C.A.); Ayerst, McKenna & Harrison Inc. v. Apotex Inc (1983), 41 O.R. (2d) 366 (C.A.) [^10]: R. v. S. (R.D.), [1997] 3 S.C.R. 484 [^11]: Majcenic v. Natale, [1968] 1 O.R. 189 at 205 (C.A.); see also Ross v. Hern, [2004] OJ No 1186, 45 CPC (5th) 107 (C.A.) [^12]: Transcript, p.7 [^13]: Transcript, p. 32 [^14]: Transcript, p. 35-36 [^15]: Transcript, p. 44 [^16]: Transcript, p. 45 [^17]: Transcript, p. 134 [^18]: Transcript, p. 110 [^19]: Transcript, p. 111