CITATION: Barry v. Certified Equipment Sales Services and Rentals LTD., 2019 ONSC 473

DIVISIONAL COURT FILE NO.: 746/17

DATE: 20190117

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ANGELA BARRY, Respondent/Plaintiff/

AND:

CERTIFIED EQUIPMENT SALES SERVICES AND RENTALS LTD., Appellant/Defendant

BEFORE: MARROCCO A.C.J.S.C.

COUNSEL: Dylan Baker, for the

Nadia Halum, for the Respondent(s)]

HEARD at TOROONTO: DECEMBER 12, 2018

ENDORSEMENT

[1] The Appellant/Defendant, Certified Equipment Sales Services and Rentals Ltd. appeals the trial judgment released in this action by the Honourable Deputy Judge Mongeon on November 13, 2017 (the "Final Decision").

[2] In the action, the Respondent/Plaintiff Angela Barry claimed damages for wrongful dismissal, breach of contract, aggravated and punitive damages, damages for intentional infliction of mental suffering, and damages for breach of Ontario’s Human Rights Code.

[3] The employer made a Defendant’s Claim seeking damages for breaches of the governing employment contract and the employee’s duties of loyalty and fidelity.

[4] The Respondent worked for the Appellant for under two years as the Respondent’s Human Resources ("HR") Manager between 2013 and 2015. The Appellant suspended and ultimately terminated the respondent in February 2015.

[5] In April 2015, the Respondent sued the Appellant in the Toronto Region Small Claims Court for, among other things, damages for wrongful dismissal, breach of Ontario’s Human Rights Code, and aggravated and punitive damages.

[6] In May 2018, the Appellant issued a claim for damages for breach of the Respondent’s employment contract and duty of loyalty and fidelity.

[7] A trial took place over four days between April 27 and October 4, 2016. The trial Judge presided over the trial of both claims but did not, however, render the Final Decision as he became seriously ill.

[8] In August 2017, the Local Administrative Judge for the Small Claims Court Toronto Region sent a letter to counsel for the parties advising them that the trial Judge was unable to give a decision in the matter for health reasons.

[9] A portion of this letter is significant for purposes of this appeal. The relevant portion of the letter provides as follows:

At the direction of Chief Justice Smith and Regional Senior Justice Morawetz and in my capacity as Administrative Judge for the Small Claims Court in Toronto Region, I will preside over any motion for rehearing. However, if all parties consent to proceeding to a rehearing based primarily on the transcript of evidence taken at the original hearing as set out in section 123 (7) (b), I am prepared to dispense with the need to bring a motion and immediately assign a judge to issue a written judgment in accordance with that provision.

I would ask that you respond in writing to my attention by September 8, 2017 failing which a motion will be required to request a rehearing [Emphasis added].

[10] The Respondent provided her consent. However, neither the Appellant nor the Appellant’s counsel responded to the letter.

[11] Despite the wording of the letter, the record discloses that the next the Appellant heard about the matter was on November 13, 2017 when Deputy Judge Mongeon released a decision dismissing the Appellant’s claim and awarding the Respondent $23,357.80 plus pre and post judgment interest, which is the subject of this appeal. In the decision, Deputy Judge Mongeon stated that he was:

• with the consent of the parties rehearing the matter because the judge who heard the trial was unable to give a decision.;

• relying on the pleadings, the exhibits, a partial transcript, a recording of the evidence heard on April 27,2016 and that he was doing so.

[12] The appellant had not given consent to the rehearing proceeding in this fashion.

[13] A party who ignores a letter from a judge of the Superior Court requesting his or her position with respect to a particular issue can expect that their silence may very well lead to a conclusion that is adverse to their interest. However, such an inference is not possible in this appeal due to the wording of the Local Administrative Judge’s letter. The Appellant was entitled to assume that, absent its consent, the Respondent would have to move for rehearing if she wanted one.

[14] Section 123 (4) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that where a judge who began hearing a matter is unable to decide it, a party may bring a motion for an order that the matter be reheard. Section 123 (7) provides, in part, that the rehearing can be conducted on all or part of the transcript of the evidence taken at the original hearing. Obviously, the way in which this matter evolved denied the Appellant the opportunity to be heard concerning the procedure to be followed in rehearing the competing claims that were the subject matter of the original hearing.

[15] Accordingly, this appeal must be allowed and this matter must be tried again.

[16] Subsection 134(1) of the Courts of Justice Act sets out the powers of a court hearing an appeal. Generally, unless otherwise provided, the court can make any order or decision that ought to or could have been made by the court or tribunal appealed from, order a new trial, or make any other order or decision that is considered just. A new trial should not be ordered unless some substantial wrong or miscarriage of justice has occurred (s. 134(6) and (7)).

[17] In this appeal I am relying primarily on section 134 (1) (c) and making orders that I consider "just".

[18] Because Deputy Judge Mongeon at paragraphs 82 and 83 of his decision makes it clear that he attaches virtually no weight to the testimony of Mr. Corbo, the owner of the appellant, the retrial shall take place before a Deputy Judge other than Deputy Judge Mongeon.

[19] A copy of this decision is to be provided to the Local Administrative Judge of the Small Claims Court for Toronto Region and I would respectfully suggest to the Local Administrative Judge that the rehearing of this matter be expedited.

[20] The Local Administrative Judge will assign a deputy judge, other than Deputy Judge Mongeon, to retry this matter.

[21] The Deputy Judge, directed by the Local Administrative Judge for the Small Claims Court for Toronto Region, to rehear this matter may:

• read and rely upon transcripts or recordings of the evidence given at the original trial;

• order that any witness who testified at the first trial provide oral testimony again;

• receive additional oral or written evidence and

• otherwise give directions concerning the rehearing of this matter;

[22] There will be no order concerning costs.

MARROCCO A.C.J.S.C.

Date: 20190117