Pos v. Hinic, 2019 ONSC 3202
CITATION: Pos v. Hinic, 2019 ONSC 3202
DIVISIONAL COURT FILE NO.: 106/17 and 141/17
DATE: 20190527
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: DIVISIONAL COURT FILE NO.: 106/17
CLASSIC POS INC. Appellant
AND:
GROAN HINIC AND BUSINESS #322526412 Respondents
- AND -
DIVISIONAL COURT FILE NO.: 141/17
CLASSIC POS INC. Appellant
AND:
BUSINESS #828126714 O/A HOLLY AND HOLLY LODGE Respondents
BEFORE: THORBURN, D. EDWARDS and FAVREAU JJ.
COUNSEL: Ineke Sutherland, in person and for the appellant Classic Pos. Inc. John No, for the Respondents
HEARD at Toronto: May 21, 2019
ENDORSEMENT
FAVREAU J.:
[1] Classic POS Inc. (“Classic”) seeks to set aside and vary the orders of Perell J., dated October 1, 2018, in two related matters. In both cases, Classic had brought motions to set aside the Registrar’s dismissal of its appeals from Small Claims Court judgments. Perell J. dismissed the motions on the basis that the Registrar had properly dismissed the appeals due to Classic’s failure to comply with the terms of an earlier order made by Justice Myers, which required Classic to serve and file proof that it had ordered the transcripts from trial by no later than June 1, 2018. In the event that we set aside the orders of Perell J., Classic also seeks to set aside the orders of Myers J.
[2] Section 21(5) of the Courts of Justice Act, R.S.O. 1990, C. c.43, provides that "A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion".
[3] On a motion made pursuant to section 21(5) of the Courts of Justice Act, the panel does not decide the motion de novo, but rather is only to intervene if the motion judge made an error of law or a palpable and overriding error of fact: Ontario Federation of Anglers and Hunters v. Ontario (Minister of Natural Resources and Forestry), 2017 ONSC 518 (Div. Ct.), at para. 7.
[4] Ms. Sutherland, who is Classic’s principal and is representing the company in this litigation, argues that Perell J. prevented her from making full submissions on the motion and that he should have set aside the Registrar’s order on the basis that she misunderstood that she was required to order the transcripts listed in her Certificate Respecting Evidence and in the Certificate Respecting Evidence of the respondents.
[5] We do not accept Ms. Sutherland argument that the orders should be set aside on the basis of her contention that she did not understand what she was required to do to comply with Myers J.’s order.
[6] In his reasons, Perell J. set out a detailed history of these two proposed appeals. Based on his review of the facts, he concluded that the Registrar did not make an error in dismissing the appeals on the basis of Classic’s failure to comply with the terms of the previous orders made by Myers J. While Perell J. was aware of Classic’s position that it had made an error in filing an earlier version of its transcript order, he found, at para. 42, that Classic persisted in refusing to order a transcript from the full trial and that it had not remedied its error:
Regardless of whether or not Classic made an honest mistake by filing the old certificates of Ordering a Transcript that had been filed in 2017, Classic has - not to this day - ordered the evidence that is required for the appeal in accordance with the exchange of Certificate Respecting Evidence. Classic persists in ignoring the Respondents' Certificates Respecting Evidence which require that six days -- not two days - of the trial proceedings to be transcribed into a transcript.
[7] Before us, Ms. Sutherland argued that, up to that point, she had not understood that she was required to order the full transcript, and that Perell J. should have given her an opportunity to do so. However, the record does not support this position.
[8] Rule 61.05(5) of the Rules of Civil Procedure clearly requires an appellant to order all transcripts required by the parties for an appeal, including the transcripts listed in a respondent’s Certificate Regarding Evidence.
[9] On the motion before Myers J., there was a disagreement between the parties as to what portion of the transcripts should be ordered. While Myers J. did not resolve that dispute, his decision set out the process to be followed for ordering transcripts:
15 The appellant then asks for an order limiting the transcripts required for the appeal to only the first and last days' evidence. In fact, this is not an issue for the court. Rather under Rule 61.05 (1) it was for the appellant to list the evidence that it required for the appeal "in order to minimize...the length of the transcript required for the appeal." Rule 61.05 (2) then enables the respondents to add any evidence to the list that it thinks is necessary and that the appellant has left out. Rule 61.05 (4) authorizes the parties to agree on the material needed for an appeal including the transcripts.
16 In responding to the appellant's request to decrease the number of days of transcripts from six to two, Mr. No advised that in his view all six days are required. He notes that among the appellant's principal grounds of appeal is an argument that the Deputy Judge was biased. The respondents say that all six days of transcripts will be required to provide context to any snippets that the appellant may rely upon to try to establish bias. I am not in a position to determine what transcripts are required. The parties know what happened below and are well able to agree on what transcripts are required if they are so minded. I simply point both sides to Rule 61.05 (8) to remind both sides that costs may be ordered against a party who requires expensive reproduction of evidence unnecessarily.
[10] Myers J. went on, at para. 18, to set out the process to be followed by the parties, which ultimately required Classic to file proof that it had ordered the transcripts by no later than June 1, 2018:
b. If it wishes to do so, the appellant in each appeal may serve and file an amended Certificate Respecting Evidence on or before 4:00 p.m. EDT on May 25, 2018.
c. If the appellant in either or both appeals delivers an amended certificate, then the respondents may file an amended Certificate Respecting Evidence in response on or before 4:00 p.m. EDT on May 29, 2018.
d. Regardless of whether amended certificates are delivered by any party, the appellant shall serve counsel to the respondents and file with the registrar by 4:00 p.m. EDT on June 1, 2018 proof that it has ordered transcripts from a duly accredited court transcriptionist as required by Rule 61.13.
[11] Following this decision, Ms. Sutherland nevertheless only ordered the first and last day of transcripts. While Ms. Sutherland argues before us that she did not understand her obligations, we note that she did not file an affidavit before Perell J. or before us attesting to this misunderstanding.
[12] We also see no merit to Ms. Sutherland’s argument that she did not get a fair hearing before Perell J. Ms. Sutherland brought a motion to the Divisional Court a few days before the hearing before us to obtain access to the audio of the motion before Perell J. for the purpose of this motion. Backhouse J. dismissed the motion, finding, at para. 11, that the “applicant was not able to point to what argument she was prevented from making before Justice Perell that may have affected the result”. This finding is binding on us, and, in any event, on the motion before us, Ms. Sutherland was again not able to identify any arguments that she did not have an opportunity to make before Perell J.
[13] Ms. Sutherland argues that the litigation process is difficult to understand for self-represented litigants. Based on cases provided by the respondents, it appears that Ms. Sutherland has been involved in litigation in the past, and that she is therefore not unfamiliar with the litigation process. In any event, as held in Brim IPCO Inc. v. Horbatiuk, 2019 ONSC 878 (Sup. Ct.), at para. 23(e), while self-represented litigants are “entitled to some accommodation and assistance to ensure a fair hearing, [they] are not entitled to abuse the system or the party opposite and failure to enforce orders once made against self-represented parties is unfair to the parties opposite and undermines respect for the court and the civil justice system”. In this case, Perell J. found that Classic did not comply with Myers J.’s order, and, based on our review of the history of this matter above, we see no error in this determination. At this point, it would be unfair to the respondents, who still await payment of the Small Claims Court judgments, to excuse Classic for its failure to comply with the Rules and with previous court orders.
[14] In his reasons, Perell J. held that Classic's conduct "already occasioned intolerable waste and delay in access to justice for the parties in Small Claims Court proceedings". Having reviewed the record and considered Classic's submissions, we see no error in the motion judge's decision. Moreover, we fully agree with his assessment of Classic's conduct and the delay it has caused.
[15] The motions are therefore dismissed.
[16] The respondents each seek costs in the amount of $750. We are satisfied that this amount is reasonable, given the issues raised and work required to respond to both motions. Classic is therefore to pay $750 to each respondent, for a total of $1500. This amount is to be paid within 30 days of today’s date.
FAVREAU J.
I agree _______________________________
THORBURN J.
I agree _______________________________
D. EDWARDS J.
Date: May 27, 2019