CITATION: 1134048 Ontario Inc. v. Theofilaktidis et al, 2019 ONSC 6641
DIVISIONAL COURT FILE NO.: 370/19
DATE: 20191121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
1134048 Ontario Inc.,
Plaintiff/Respondent in Appeal
– and –
George Theofilaktidis AKA Georgios Theofilaktidis COB as Harama Bouzouki Lounge; Harama Bouzouki Lounge; Jim Constantinou; Soteris Theofilaktidis, AKA Theofilaktidis Steve, AKA Theofilaktidis Steven, Defendants/ Appellants George Theofilaktidis and Jim Constantinou
Defendants
J. Koumarelas, counsel for Respondent
Shawn Tock and Kate Barretto, counsel for Appellants George Theofilaktidis and Jim Constantinou
HEARD at Toronto: October 22, 2019
Kiteley J.
[1] This is an appeal by the defendants George Theofilaktidis and Jim Constantinou (collectively, the “Appellants”) from a decision of Deputy Judge W. De Lucia dated June 4, 2019 in which the court dismissed the motion by the Appellants to set aside a default judgment dated May 16, 2016. For reasons that follow, the appeal is dismissed.
Background
[2] The Appellant George Theofilaktidis intended to operate the Harama Bouzouki lounge. The Respondent agreed to supply and install sound and lighting equipment. In a conditional sales agreement dated March 22, 2010 the Respondent is described as the seller and the Appellants are described as joint and several guarantors. On page 5 of the conditional sales agreement, signatures described as those of the Appellants appear. According to the agreement, the Appellants were required to pay the entire purchase price in full within 60 days of delivery of the equipment. At paragraph 8, the Appellants agreed to pay $26,019 and interest at the rate of 24%. Two quotes are attached, one for payment of $20,900.25 and the other for $5,696.25.
[3] The equipment was supplied and installed.
[4] The Respondent issued a Small Claims Court Claim on February 28, 2013 asking for judgment in the amount of $25,000 and prejudgment interest from February 28, 2011. In that claim, the Respondent asserted that the Appellants had approved a sound system and lighting system proposal in or about February 16, 2013. The Claim was immediately amended to assert that the date of approval was February 16, 2010.
[5] In an endorsement dated May 16, 2016, a Deputy Judge gave judgment following an assessment hearing. The Appellants were ordered to pay $25,000 plus prejudgment interest at 24% from February 28, 2011 plus post judgment interest at the same rate. The Appellants were also ordered to pay costs of $835.
Motion to set aside default judgment
[6] On June 4, 2019, the Deputy Judge heard the Appellants’ contested motion to set aside the default judgment. In the Notice of Motion, the Appellants indicated that their “Representative” was J.B.[^1] He had prepared a Notice of Motion in which the request was that the default judgment be set aside, that the Appellants be given permission to file a defence and a claim, and an order terminating garnishment and/or withdrawal of writs. J.B. prepared and served two affidavits in support of the motion.
[7] In his affidavit sworn November 19, 2018 the Appellant Constantinou said the following. He had known the Appellant George Theofilaktidis as a personal and family friend since approximately 1990. Because of his “vast restaurant experience” the Appellant George Theofilaktidis asked the Appellant Constantinou if he would help with the opening and set up and he “offered to do so with no compensation”. The affidavit includes the following:
On or about June of 2016 I became aware that there was some legal action against me personally upon the receipt of a letter from Jim Koumarelas, lawyer for the Plaintiff. I had never received any documentation to the best of my knowledge and recollection.
I immediately called Jim Koumarelas as he was a personal family friend and related to my father in law. He is a cousin to my father in law.
Mr. Koumarelas advised me to seek my own lawyer.
I shrugged this letter off as I was not personally liable for any of this action as I was not the owner or any director under any capacity of Harama Bouzouki Lounge Inc.
I further became aware of the seriousness of this matter in late 2017 when a personal friend [J.B.] expressed what procedures would be taken by the Plaintiff and what the repercussions would be and how it may affect me.
Mr. [J.B.] offered to help me with my defense at no charge to me upon my asking.
Mr. [J.B.] commenced correspondence with the Plaintiff’s lawyer and preparation for this motion representing me for same.
I am not the owner relating to this action. I have never received or been served with any type of legal paperwork to which I would have had the opportunity to defend this action.
I ask the hourable [sic] judge to set this matter aside of the default judgment and noting in default, and finally dismissing this case in its entirety.
[8] The Appellant George Theofilaktidis signed an affidavit sworn November 19, 2018. He identified himself as the president and sole director of the Harama Bouzouki Lounge Inc., which was registered as a corporation on January 13, 2010. He attached a copy of the registration. He said he operated the restaurant until “its closure in early 2011”. He said that, due to his lack of experience, Jim Constantinou had assisted him without compensation. He explained that he had negotiated with the Respondent to discuss the supply and installation of sound and lighting equipment but that he had no money. His affidavit included the following;
I attempted to finance the said equipment . . . by using a co-signer guarantee of Jim Constantinou, and a third time using a co-signer guarantor of Steve Theofilaktidis. Unfortunately, after three attempts to finance the said equipment we were denied due to lack of sufficient credit.
The Restaurant eventually closed after approximately 15 months after being unsuccessful in the running of the business.
After the closure of the business; [sic] I offered to return the equipment to the Plaintiff. The Plaintiff refused the return of the said equipment.
I never heard from the Plaintiff again. I became aware of the Action and Default upon attempting to purchase a property [sic] and my lawyer instructed me as such.
I was never served with any documents whatsoever to my knowledge and recollection.
[9] In his affidavit sworn June 3, 2019, the Respondent provided a detailed outline of the negotiations, the conditional sales agreement, the installation over the course of several months in 2010 and early 2011 and “ongoing maintenance and repair of the goods continued until the end of February, 2011.” He described in detail the service on the Appellants of the Amended Plaintiff’s Claim, the unsolicited extension of seven days by his counsel, and the failure to file a defence within the extension period. He said that his lawyer had sent a letter advising the Appellants of the Assessment hearing date of May 16, 2016 but that his lawyer said he had not retained a copy of the letter. He said that his lawyer had received a phone call from Jim Constantinou before the assessment hearing date and that his lawyer told Jim Constantinou that he should get a lawyer quickly. The Respondent said that he attended the hearing on May 16, 2016 and obtained judgment. He reported that on June 7, 2016, his lawyer had written to each of the Appellants and advised them that judgment had been obtained and urged them to speak to their own lawyer. The Respondent said that nothing further happened until June 2018 when J.B. called his lawyer about the judgment and that J.B. had written a letter. He said that over the next couple months, attempts were made to resolve matters. On November 7, 2018, his lawyer had written to the Appellants.
[10] The Respondent had read the affidavits of the Appellants and pointed out inculpatory paragraphs. He also observed that the Appellants had not “put forward for consideration any Statement of Defence, let alone a meritorious defence.”
[11] Attached to the Respondent’s affidavit were the following documents:
Amended Plaintiff’s Claim;
Accepted Proposal dated February 16, 2010;
Quotes dated March 22, 2010 of which one does not identify the customer and the other identifies the customer as “Jim Constantinou”;
Letter dated May 10, 2012 related to the attempted financing involving guarantors George Theofilaktidis and Steve Theofilaktidis. The business is described as “a new Proprietorship of Jim Constantinou”;
Conditional sales agreement dated March 22, 2010 with signatures identified as those of the Appellants;
Letters dated August 21, 2013 from the Respondent’s prior lawyer to each of George Theofilaktidis (at the address of the Lounge) and Jim Constantinou (at his home address) confirming personal service by the president of the plaintiff on July 24, 2013 and pointing out that each had 20 days to respond. As a courtesy, he had extended the deadline by 7 days;
Letter dated June 7, 2016 from the Respondent’s current lawyer to both Appellants (at what appears to be home addresses) enclosing a copy of the judgment dated May 16, 2016 and advising that he had filed writs of seizure and sale, and strongly urging that each seek legal advice;
Letter dated June 27, 2018 from J.B. to the Respondent’s current lawyer advising that George Theofilaktidis was prepared to “come to the table” and that Jim Constantinou “must be removed as a defendant” for 7 listed reasons. One of those reasons was that Mr. Constantinou “is currently amidst of a financial undertaking of which this Judgment and Writ will affect the outcome of his wishes to transact same”;
Letter dated November 7, 2018 from the Respondent’s current lawyer to Jim Constantinou confirming that over the summer of 2018 J.B. had contacted him and he had last heard from J.B. on August 24, 2018. In that letter, he confirmed that he had not received anything from anyone in an attempt to settle or set aside the judgment and he confirmed that the judgment remained outstanding and that he had instructions to “seek all legal avenues available to collect on the debt owing”.
[12] As those affidavits indicated, all of the key documentary evidence was provided by the Respondent.
The motion hearing and decision of the Deputy Judge
[13] The transcript of the hearing was filed in this appeal.
[14] J.B. described himself as “representative on a friendly basis for George and Jim”. He said he was “as a friend, offering him some guidance”. He said he was “an ex agent as to criminal defence,” but he “hadn’t been practicing in over seven, eight years”.
[15] At page 6, the Court pointed out that this was a motion pursuant to rule 11.06. At page 7 the Court noted that “the underlying issue here for everyone is passage of time”.
[16] At page 8, J.B. said that the corporation had never been served “as an incorporated company” and that Jim was not an employee. He said that packing slips indicated that the delivery date was March 22, 2010 and the installation took place over about two weeks. He also said that “there may have been some …some periodic maintenance over … over a period of time, a period of weeks and maybe even a …a period of months.”
[17] At page 10, the Court observed that paragraph 10 of the Claim referred to installation in February 2012. Mr. Koumarelas pointed out that the Amended Claim referred to February 2010.
[18] At page 11, the court again referred to rule 11.06 and noted that he was being asked to set aside the judgment dated May 16, 2016 that had been granted three years before the hearing of the motion. The Court pointed out that the defendants had to explain why they had failed to defend. J.B. asserted that neither of the Appellants had been served. At page 12, the Court read from an affidavit that indicated that service had been effected on Constantinou on the street adjacent to 646 Danforth Avenue (the address of the Lounge) on July 24, 2013. At page 13, J.B. appeared to take the position that since the events occurred on February 26, 2010, the issuance of the Claim in February 2013 was in breach of the two-year statute of limitations. At page 15, J.B. asserted that the claim was “discovered” in March of 2010. The Court noted that the issue that the claim was statute-barred had not been raised in the affidavits of the defendants in support of the motion.
[19] The Court noted that the other defendant had also been served outside the Lounge on July 24, 2013. J.B. challenged those affidavits of service on the basis that the business had closed before July 24, 2013 and service could not have been effected there. J.B. confirmed that his clients denied having been served.
[20] At page 16, the Court asked how soon after the matter came to their attention that the defendants had done something. The Deputy Judge wanted to know when they had found out about the judgment.
[21] With input from counsel for the plaintiff, the Court noted that in a letter dated June 7, 2016, he had advised the defendants that the judgment had been made. J.B. conceded that his clients had not brought a motion to set aside the judgment in 2016 or 2017. When pressed by the Court, J.B. said that “there was some procrastination involved”. The Court asked whether the defendants were “indifferent” and pointed to the statement by Constantinou in his affidavit that he had “shrugged the letter off”.
[22] At page 19, the Court noted that the defendants had to explain the second part of rule 11.06 and asked whether the defendants had “moved with reasonable speed” after receiving the letter from the lawyer. J.B. said that there had been an issue as to whether the lawyer (i.e. Mr. Koumarelas) had “a conflict of interest” due to the family connection.
[23] At page 20, the Court asked whether the defendants had a “meritorious defence”. It observed that J.B. had asserted that the claim was statute-barred even though that issue had not been raised in the defendants’ affidavits. At page 21, the Court observed that the defendants took the position that they “weren’t personally liable” and J.B. said that they were not personally liable because it was an incorporated company.
[24] At page 21, J.B. asked if Constantinou could speak. The Court permitted him to do so. The defendant Constantinou said that “at no point did I shrug this off. I don’t know where that language is coming into play here.” The Court noted that it was in his affidavit. The defendant Constantinou also repeated that he had nothing to do with the company and had simply helped out a friend.
[25] At page 22, the Court observed that the defendant Theofilaktidis also wanted to “get back into the action and defend it” and Mr. Theofilaktidis spoke in agreement.
[26] The Court summarized by saying that J.B. believed he had satisfied rule 11.06, that he had explained the delay, that he had moved with reasonable dispatch and that he had raised a meritorious defence. The defendant Constantinou spoke again about what he said was a conflict of interest because Mr. Koumarelas was a family member. The Court asked whether Mr. Koumarelas had ever acted for the defendant Constantinou and he confirmed that that had not occurred.
[27] In his submissions, Mr. Koumarelas reviewed the documents that were attached to his client’s affidavit. He referred to rule 11.06 and pointed out that the defendants had not provided a proposed statement of defence.
[28] At page 27, the Court asked what had triggered the attention of the defendants. J.B. said that there was a writ of seizure and sale on the property of Constantinou. J.B. insisted that Constantinou was “the innocent party” and that he “feels he was coerced into signing something that may have jeopardized his position.” The Court inquired whether J.B. was suggesting that the plaintiff had coerced the defendant Constantinou and J.B. said he was. The Court observed that that issue had not been raised in the affidavits. The Court summarized that the “big issues” like the Limitations Act, coercion, undue influence and duress had not been raised in the affidavits in support of the motion and there was no draft defence. At page 29, the Court noted that he was entitled to address the issue of prejudice to the plaintiff versus prejudice to the defendants.
[29] The oral reasons for decision are as follows:
Now having said all that, I have considered motion material, I have considered the responding material, I have considered the submissions that are being made, and I must address my mind to Rule 11.06: the defendants must explain the default, why they did not defend. I am satisfied that I have the affidavits of personal service of the amended claim on each defendant, and that sworn testimony to me is very significant.
Secondly, and I think more problematic for the defendants, the delay is very significant. The Rules require that you have to move with reasonable speed, reasonable dispatch in the circumstances, and there was nothing to prevent your clients from dealing with this in a more expeditious fashion. The delay to me was exceptionally long, and especially in light of the fact that they were kept in the loop as to the service of the claim or amended claim, the fact that an assessment hearing was coming on, and that a judgment had been rendered, and still nothing.
And then the issues of the meritorious defence, you raise matters now, today, that in terms of the responding material they cannot address, you suggested the Limitations Act and you suggested coercion, very serious allegations. But without the draft defence, without affidavit material, I am not prepared to embrace those defences.
I am satisfied that both of these two main defendants were intimately involved in the Lounge, the Harama Lounge, its construction, the engagement of the plaintiff and the equipment that it installed. There is no mystery what was happening. The company, unfortunately, was not successful, but at the end of the day, these parties that have been identified by [J.B.] are subject to the judgment.
In consideration of all of these elements of Rule 11.06, and as well the prejudice to the plaintiff, in my view, outweighs the prejudice of the defendants. Delay and prejudice are significant aspects for this court’s consideration. I am not satisfied that the elements of Rule 11.06 have been met, and accordingly, the motion is dismissed. (emphasis added)
The Appeal
[30] In the Notice of Appeal, the grounds of appeal are as follows:
- The Deputy Judge made errors in law by:
(a) Failing [to] exercise judicial discretion to disallow an agent to appear on behalf of the Appellant in accordance with s. 26 of the Courts of Justice Act, R.S.O. 1990 c. C.43
(b) Failing to discharge his duty to Appellants by:
(i) failing to make inquires [sic] to determine if the Appellants made an informed choice to forgo representation by counsel for representation by an agent;
(ii) failing to inform the Appellants that non-licensed agents are not subject to oversight or any particular standard of competence;
(iii) failing to adjourn the motion to permit the Appellants an opportunity to amend their materials when the agent’s incompetence became apparent;
- Ineffective assistance of the Appellant’s former agent in failing to put forth a complete evidentiary record sufficient to advance a legal argument in the motion resulting in a miscarriage of justice.
[31] Mr. Koumarelas attended at the hearing of the appeal. He had not filed a responding record or factum or book of authorities. Counsel for the Appellants objected to Mr. Koumarelas making submissions. I agreed that that was a reasonable objection and limited Mr. Koumarelas to responding to my question with respect to the limitation period issue.
Analysis
[32] Pursuant to s. 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43, an appeal lies to this court.
[33] The Appellants take the position that the decision contains an error of law for which the standard of review is correctness.
[34] I disagree. In Mountain View Farms Ltd. v. McQueen[^2] the Court of Appeal held that a motion judge’s decision to set aside a default judgment is a discretionary one that will attract deference on appeal. It should not be interfered with absent an error in law or principle, a palpable and overriding error of fact, or unless the decision is so clearly wrong as to amount to an injustice.
[35] Rule 11.06 of the Rules of the Small Claims Court, O. Reg. 258/98, is as follows:
11.06 The court may set aside the noting in default or default judgment against a party and any step that has been taken to enforce the judgment, on such terms as are just, if the party makes a motion to set aside and the court is satisfied that:
(a) the party has a meritorious defence and a reasonable explanation for the default;
(b) the motion is made as soon as is reasonably possible in all the circumstances.
[36] Section 26 of the Courts of Justice Act is as follows:
A party may be represented in a proceeding in the Small Claims Court by a person authorized under the Law Society Act to represent the party, but the court may exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of the party if it finds that such person is not competent properly to represent the party, or does not understand and comply at the hearing with the duties and responsibilities of an advocate.
[37] J.B. was not licensed under the Law Society Act, R.S.O. 1990, c. L.8
[38] The Appellants argue that determining whether or not a person, including an agent or representative is “competent properly to represent” a party is an integral part of the administration of justice.[^3] A trial judge has a positive obligation to interrupt a proceeding to conduct an inquiry into the agent’s competence if he or she is satisfied that proper grounds for such an inquiry exist.[^4] “Proper grounds” include the lack of ability to competently represent a party, as this endangers the proper administration of justice.[^5]
[39] The Appellants assert that in determining what constitutes a “lack of competence” under s. 26 of the Act, courts have previously cited an “inability to grasp legal concepts” and a “misunderstanding of the proceeding” as worthy of disqualification.[^6] Courts have recognized that an agent is “incompetent” when his or her representation is so wanting as to “render their participation in a proceeding a real hindrance both for the party for whom they act and to the court”.[^7]
[40] The Appellants argue that the right to a fair trial and a party’s opportunity to fully present its case are fundamental elements of procedural fairness.[^8] A party’s right to a fair trial is not diminished by their election to be represented by an unlicensed agent. Rather, that “right remains in full force and the absence of legally trained counsel puts an added obligation on the trial judge to protect that right”.[^9]
[41] The Appellants note that the Court of Appeal in Romanowicz has expanded on what is required of a trial judge to preserve a party’s right to a fair trial where they have elected not to be represented by counsel, namely that the court must conduct:
Inquiries which assure the trial judge that the accused is not proceeding in ignorance of his rights or of the potential effect his choice may have on the proceedings. A failure to appreciate either could result in a miscarriage of justice.[^10]
[42] Relying on Romanowicz, the Appellants argue that when a party is represented by an agent rather than a lawyer licensed by the Law Society of Ontario, the judge of first instance must ensure that:
(a) The litigant is aware that the agent is not a lawyer, and as such the litigant will not have recourse to many remedies potentially available to a party represented by a licensee;
(b) If the agent is paid for his or her services, that the relevant party understands that the laws of Ontario do not require the agent to receive any training or demonstrate any expertise before being allowed money in return for representation; and
(c) That the law imposes no minimum standard of competence from representatives that are not lawyers.[^11]
[43] In other words, to ensure a fair proceeding, the Appellant asserts that a deputy judge is obligated to confirm that a litigant represented by an unlicensed agent understands his or her rights and the implications of proceeding with an unlicensed agent as his or her representative.[^12]
[44] The Appellants note that those expectations were established in a criminal proceeding but that there is an analogous obligation on a judge in civil proceedings.[^13]
A. Is there a duty on a Deputy Judge in a Small Claims Court trial or motion to determine whether an unlicensed representative is “competent properly to represent” a party?
[45] In Romanowicz, the accused was charged with failing to remain at the scene of an accident. It was a hybrid offence and the Crown elected to proceed summarily. If convicted, the accused faced a possible maximum jail term of six months and an automatic suspension of his driving licence. The reasons for decision are framed by the Charter rights of the accused and by s. 50(3) of the Provincial Offences Act. Furthermore, the case was heard in the context of a report by the Ministry of the Attorney General on the Task Force on Paralegals on which no action had been taken.
[46] The principle in Romanowicz is that the Summary Conviction Judge has the authority to disqualify. It stands for the proposition that, in a summary conviction matter, the judge has the duty or the obligation to conduct an inquiry into the competence of a representative if satisfied that proper grounds for such an inquiry exist. In other words, the representative must demonstrate some behaviour or conduct in the proceeding that is a trigger for the judge to consider whether an inquiry is required.
[47] As the Appellants noted, Romanowicz was referred to in Fleet Rent-a-Car Ltd. At paragraph 39, the Deputy Judge observed that paragraphs 77–79 of Romanowicz can “easily be transposed to civil proceedings.”. However, the context is that the Crown had brought a motion for an order barring Melvin P. Deutsch from appearing as an Agent before a Deputy Judge of the Small Claims Court which, as the Courts of Justice Act indicated, was a branch of the Superior Court of Justice. Mr. Deutsch had acted on at least six prior cases where the litigant claimed to be entitled to use French. The participation of Mr. Deutsch was key because his personal knowledge and conduct, including abuse of procedure, in this and other proceedings led to the conclusion that his history demonstrated that he did not comply with the duties and responsibilities of an agent in the proper administration of justice. As a result of the order, Mr. Deutsch was prohibited from appearing as an agent in the Small Claims Court. In the end result, this was a “vexatious litigant” case.
[48] The decision in Fleet Rent-a-Car Ltd. does not stand for the proposition that the Deputy Judge has the duty or the obligation to conduct an inquiry into the competence of a representative. Indeed, given the volume of cases and regular involvement of licenced and unlicenced representatives, it would be unrealistic and onerous to impose such a duty on the Deputy Judge in every case. Section 26 is enabling not prescriptive.
B. Did J.B. demonstrate that he was not “competent properly to represent” the Appellants or that he did not “understand and comply with the duties and responsibilities of an advocate”?
[49] The Appellants argue that it was apparent to the Deputy Judge that J.B. was “not competent properly to represent” the Appellants and that J.B. did “not understand and comply at the hearing with the duties and responsibilities of an advocate”. They take the position that it was demonstrated primarily based on these indicia. First, J.B. did not refer to rule 11.06 in his materials or in his submissions. Second, J.B. did not understand the requirements of rule 11.06 including attaching to the affidavit of the defendants a proposed defence that would demonstrate a “meritorious defence”. Third, J.B. included in the affidavit of the Appellant George Theofilaktidis that he had “shrugged” off the letter in June of 2016 which was damaging evidence.
[50] Those examples must be considered in this context. J.B. had served and filed an appropriate notice of motion with accompanying affidavits. He introduced himself and spoke in a manner that suggested he was familiar with court hearings. He described his earlier experience as an “ex agent as to criminal defence”. He made his submissions, respected the submissions on behalf of the plaintiff and made reply submissions. He understood court procedure. He appeared to understand the duties and responsibilities of an advocate. There was no indication that his lack of apparent familiarity with the requirements of rule 11.06 “endangered the proper administration of justice” or that he had an “inability to grasp legal concepts”. The Deputy Judge repeatedly focused on rule 11.06 and J.B. consistently responded to his questions. Based on the transcript it is a reasonable inference that J.B. knew he had to explain the delay, he knew that his clients had to have a defence and he listed the defences as late filing of the claim and coercion. He raised as a defence the lack of service but the court file included affidavits of service that contradicted that submission.
[51] While there were weaknesses in his representation as identified by the Appellants, that context would not have given the Deputy Judge any reason to think that s. 26 was engaged. The transcript does not demonstrate that J.B. was not competent to properly represent the Appellants. Nor does it demonstrate that J.B. did not understand and comply at the hearing with the duties and responsibilities of an advocate. Assuming without finding that s. 26 imposes a duty or obligation on a Small Claims Court deputy judge in a motion or trial, there was no basis upon which the Deputy Judge would consider conducting an inquiry.
[52] As indicated in paragraph 29 above, the Deputy Judge focused on the delay—which the defendants admitted—and the evidence and the submissions did nothing to persuade the Deputy Judge otherwise.
C. Appeal based on inadequate representation
[53] In criminal matters, the court has established the protocol to be followed when the appeal is based on inadequate representation.[^14] That protocol has been adapted to proceedings in civil and family law matters. There is no indication that it has been adopted in appeals from decisions of Deputy Judges of the Small Claims Court.
[54] In this case, counsel for the Appellants did not give notice to J.B., did not serve a copy of the Notice of Appeal and appeal record on J.B., and did not alert J.B. that the appeal was to be heard on his date. Without deciding whether the criminal protocol applies, I do draw the inference against the appellants that the failure to give notice to J.B. means that he may have had a response that would have been relevant.
Conclusion
[55] I agree with the observation by the Divisional Court in Bellissimo v. York Condominium Corporation No. 431[^15] as follows:
A second issue raised in oral argument was s. 26 of the Courts of Justice Act, R.S.O. 1990, c. C.43, with the suggestion that the Deputy Judge ought not to have gone ahead in the absence of a representative from the Law Society on behalf of the condominium corporation or should have conducted some sort of inquiry into Mr. Scott’s competence to be there since he was not a member of the Law Society. However, s. 26 of the Courts of Justice Act does [not] require either of those two things. It does permit a party to be represented in the Small Claims Court by a licensed member of the Law Society and does permit the Court to exclude an unlicensed member if the Court finds the person is not competent or does not understand or comply with the duties or responsibilities of an advocate. Leaving aside the fact that this was not previously raised, the transcript of this proceeding does not justify any suggested need for this Deputy Judge to have done any extra steps in relation to the attendance by Mr. Scott.
[56] The Appellants have not persuaded me that the Deputy Judge made an error in law or principle, or made a palpable and overriding error of fact. There is no basis to find that the decision is so clearly wrong as to amount to an injustice. Indeed, s. 134 of the Courts of Justice Act requires that this Court arrive at a conclusion that is just. It is just to dismiss this appeal, thereby leaving the judgment dated May 16, 2016 intact.
ORDER TO GO AS FOLLOWS:
[57] The appeal is dismissed without costs.
Kiteley J.
Released: November 21, 2019
CITATION: 1134048 Ontario Inc. v. Theofilaktidis et al, 2019 ONSC 6641
DIVISIONAL COURT FILE NO.: 370/19
DATE: 20191121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
1134048 Ontario Inc.,
Plaintiff/Respondent in Appeal
– and –
George Theofilaktidis AKA Georgios Theofilaktidis COB as Harama Bouzouki Lounge; Harama Bouzouki Lounge; Jim Constantinou; Soteris Theofilaktidis, AKA Theofilaktidis Steve, AKA Theofilaktidis Steven, Defendants/ Appellants George Theofilaktidis and Jim Constantinou
REASONS FOR JUDGMENT
Kiteley J.
Released: November 21, 2019
[^1]: As indicated below, J.B.’s role in the hearing is the focus of the appeal. He was not served with any of the materials related to this appeal and was not represented. He is not licensed by the Law Society of Ontario. I see no reason to use his full name. [^2]: 2014 ONCA 194 at para. 55. [^3]: R. v. Romanowicz, 1999 1315 (ON CA), 124 O.A.C. 100, 1999 CarswellOnt 2671. [^4]: Ibid. at para. 81. [^5]: Ibid. at para 74. [^6]: Ontario (Attorney General) v. Fleet Rent-A-Car Ltd., 2002 CarswellOnt 4286 at paras. 52–53. [^7]: Ontario v. Deutsch, 2004 CarswellOnt 482 at para. 24. [^8]: Baker v. Canada (Minister of Citizenship & Immigration), 1999 SCC 699 at para. 30. [^9]: Romanowicz at para. 28. [^10]: Ibid. at para. 40 [^11]: Ibid. at paras. 41-43 [^12]: Ibid. at para. 40 [^13]: Ontario (Attorney General) v. Fleet Rent-A-Car Ltd. [^14]: R. v. W., 1995 3505 (ON CA), 1995 100 C.C.C. (3d) 225; Schedule 1 of the Criminal Proceedings Rules for the Superior Court of Justice, SI/2012-7. [^15]: 2018 ONSC 3884 (Div.Ct.) at para. 19.