Court File and Parties

CITATION: Baichoo v. Taylor, 2019 ONSC 268

DIVISIONAL COURT FILE NO.: 620/18

DATE: 20190110

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Pauly Margaret baichoo, Appellant/Plaintiff

AND: brandon vernon taylor, Respondent/Defendant

BEFORE: Backhouse J.

COUNSEL: Justin d’Aloisio, for the Appellant/Plaintiff

Respondent/Defendant-unrepresented and did not appear

HEARD at Toronto: January 10, 2019

ENDORSEMENT

Backhouse, J.-Orally

[1] The appellant appeals from the Order of Deputy Judge Boutet, dated September 18, 2018, dismissing the Small Claims Court Action on a motion in writing by the appellant, seeking judgment against the respondent who had been noted in default. It is submitted that the Deputy Judge erred in dismissing the action on the basis that the within action should be dealt with in the family law action between the parties.

Jurisdiction and Standard of Review

[2] An appeal lies to a single judge of the Divisional Court from a final order of the Small Claims Court in an action for the payment of money in excess of $2500.( Courts of Justice Act, R.S.O.1990,c.C.43,s.31;Small Claims Court Jurisdiction and Appeal Limit,O.Reg.626/00 as amended by O.Reg.317/11, s.2).

[3] The standard of review in an appeal from a Small Claims Court judge is correctness for an error of law, palpable and overriding error for an error of fact, and correctness or palpable and overriding error for a question of mixed fact and law, depending on whether there is an extricable legal principle.(Zeitoun v. Economical Insurance Group ONCA 415 at para.1;Wellwood v. Ontario(Provincial Police), 2010 ONCA 386 at para.28).

Facts

[4] The appellant commenced a family law action in the Ontario Court of Justice (“OCJ”) against the respondent which included, among other things, a claim for an order directing the respondent to maintain the lease on their previously shared condominium unit for payments owed under the lease. By the time the Deputy Judge made his order dismissing the claim, Justice Sherr in the family law action had already ordered on April 26, 2018 that the property claims be deleted, the OCJ having no jurisdiction involving property.

[5] The appellant had no opportunity to provide a supplemental affidavit or to attend an oral hearing to explain this to the Deputy Judge. The respondent did not request that the claim be heard in the family law action. By not defending the Small Claims Court action, the respondent is deemed to have admitted the facts claimed therein.

[6] There is no issue that the Small Claims Court has jurisdiction over the matters claimed. To require the appellant to commence a family law action in the Superior Court would put her to a great deal of expense for a relatively small and uncomplicated claim.

[7] I find that in these circumstances, the Deputy Judge erred in dismissing the appellant’s claim. Rather than put the appellant to the time and cost of returning to the Small Claims Court, I propose to make a final determination of the matter.

[8] The parties were in a relationship for 10 years and had a child together. They had been living together since October 2015 at a condominium unit at 2212 Lakeshore Boulevard West, Unit 2508, Toronto. They were both lessees of that unit under a lease agreement which was extended by the parties to September 30, 2018. Monthly rent was $1878 and the parties had a verbal agreement that each of them would pay $939 on a monthly basis.

[9] As a result of the respondent’s assault on the applicant, he moved out on November 17, 2017. He stopped paying his share of the rent on March 25, 2018. He also misappropriated her share of the rent money that she sent to him for April, 2018. Accordingly, he owes to the appellant: his share of the lease payments ($3756), money misappropriated ($939) and Insufficient Funds Fee charged to her by the landlord ($20) totaling $4715.

[10] In addition, the appellant claims punitive and aggravated damages on account of the misappropriation by the respondent. I award $1000 in this regard.

[11] The appellant seeks all inclusive costs of $12,349.73 on a substantial indemnity basis or all inclusive costs of $8494.13 on a partial indemnity basis. The disbursements alone on the appeal

are $1171.73. I note that this is a Small Claims Court matter and that costs related to the dismissal of the claim cannot entirely be attributed to the respondent. I award all inclusive costs of $2500 to the appellant.

Released January 10, 2019 ___________________________

Backhouse, J.