CITATION: Li v. Evangelista, 2019 ONSC 6881
COURT FILE NO.: DC-18-2422
DATE: 2019/11/27
COURT OF ONTARIO,
SUPERIOR COURT OF JUSTICE,
(DIVISIONAL COURT)
RE: Hui Ling Li, Plaintiff (Appellant)
AND:
Glenn Evangelista, Ryan Evangelista, Rowena Evangelista, Adam Herman, Defendants (Respondents)
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Hui Ling Li, in person
Glenn Evangelista, in person and Ryan Evangelista, by telephone
HEARD: August 28, 2019
decision and reasons
[1] The Appellant appeals to this court from the decision of a Deputy Judge sitting in Small Claims Court. She alleges that the learned Deputy Judge fell into error in a number of ways so that the decision should be overturned, and a new trial ordered.
Background Facts and the Findings at Trial
[2] By way of background, the appellant (plaintiff) was the landlord of a condominium unit rented by the defendants Ryan and Rowena Evangelista. The defendant Glenn Evangelista signed the lease as a guarantor. When the lease ended, it became a month to month tenancy.
[3] Ryan and Rowena separated in 2012 and Ryan continued in occupation with his mother-in-law who subsequently vacated the premises. By the time the tenancy came to an end only Ryan was still occupying the unit and paying rent. Mr. Herman’s involvement was because after the Evangelistas separated he was Rowena’s new partner. Mr. Herman and Ms. Rowena Evangelista did not live in the unit but they were present and involved in certain discussions with the plaintiff.
[4] The tenancy came to an end in 2014 when Ryan gave notice. At that time there were several visits to the unit by the plaintiff and a number of heated discussions between the plaintiff as landlord and with Ryan as well as Rowena and Adam. The disagreement was primarily about the condition of the premises and whether the tenants owed compensation to the landlord.
[5] In September of 2015 the appellant sued the defendants Glenn and Ryan Evangelista for damages to the unit. This led to Rowena Evangelista and Adam Herman attending at the plaintiff’s home on Ryan’s behalf to serve a Statement of Defence. This was at 11:00 pm. The plaintiff felt intimidated and threatened. She amended her claim to add the other two parties and to seek damages for intentional infliction of mental suffering, assault and trespass.
[6] It is also relevant that the appellant sought a peace bond against Rowena for this and other incidents. There was a hearing in the Ontario Court of Justice wherein the Justice of the Peace found that the plaintiff’s expressed fears were not reasonable and did not support the granting of a peace bond. The appellant appealed that decision and the appeal was dismissed.
[7] Glenn and Ryan Evangelista had defended against the original action but Rowena Evangelista and Adam Herman did not defend against the amended claim. The latter two had been noted in default when the matter came on for trial in the Small Claims Court.
[8] At the hearing, the Deputy Judge only found liability against Ryan for damage to the unit. He assessed those damages at $2,326.50 and granted judgment accordingly.
[9] The Deputy Judge found that Glenn was not liable because his guarantee expired when the lease expired. Glenn was not responsible for the damage caused by the tenants.
[10] No liability was found against Rowena Evangelista because the evidence disclosed she had vacated the premises in 2012 to the knowledge of the plaintiff. Rowena was no longer an occupant of the premises when it became a month to month tenancy.
[11] Adam Herman was never a tenant and was not liable as such.
[12] The Deputy Judge also dismissed the claim for intentional infliction of mental suffering, assault and trespass. He found that on the evidence, the plaintiff had not proven the necessary elements for any of these torts. He also considered the tort of negligent infliction of mental suffering which had not been pleaded but he also rejected that.
[13] In the result the plaintiff obtained judgment only against Ryan Evangelista for $2,326.50 for property damage.
The Appeal
[14] The plaintiff prepared an eight page Notice of Appeal in which she set out several grounds of appeal. Those grounds are not identical to the grounds argued at the hearing or contained in the factums. I will not attempt to reproduce all of the grounds for appeal but the most significant may be summarized as follows:
a. The appellant objects to the references by the trial judge to the reasons of the Justice of the Peace when dismissing the claim for a peace bond. She also objects to reference by the trial judge to the unsuccessful appeal and to “Amended Claim - Exhibit 58” which is a document she had apparently attached to her claim but did not “adduce in evidence”. She alleges that the Deputy Judge misused the proceeding in the OCJ as evidence and relied upon it in reaching his conclusions.
b. The appellant argues that the Deputy Judge made findings concerning the plaintiff’s exceptional susceptibility to mental stress and to the lack of knowledge of her condition by the defendants which are findings not supported by the evidence.
c. The appellant alleges that the trial was procedurally unfair because of repeated interventions by the trial judge. Specifically, the appellant complains that she was not permitted to effectively cross examine Glenn at trial and was not given a chance to address inferences the judge drew from documents he reviewed.
d. The appellant objects to the fact that the Deputy Judge permitted Ryan to testify by telephone. Ryan now lives in Alberta.
e. The appellant contends that it is an error in principle not to have found liability against parties who did not defend the proceeding and had been noted in default.
f. The appellant contends that the reasons of the Deputy Judge dismissing the tort claims are legally insufficient and lack logical and legal analysis.
Analysis
[15] At the outset, it is important to emphasise that the role of an appeal court is not to enforce a standard of perfection but to intervene only in cases in which there is a risk of significant injustice. An appeal is not to permit re-argument of issues originally decided nor to determine how the judge sitting in appeal would have decided the case had it been presented differently. Rights of appeal are to correct serious errors and not to correct every blemish that might be detected in the original trial.
[16] Intervention is justified only if there were significant errors committed by the court of first instance which render the verdict untenable. The standard of review is generally that outlined by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. Findings of fact will only be disturbed if the evidence cannot reasonably support the findings. Decisions on points of law are reviewed on a more robust standard which is to say that an appeal court will correct errors of law on a standard of correctness although it will still be necessary to demonstrate that the error is critical to the result. When it comes to procedure, much latitude must be allowed to the trial judge and the matter must be considered in context.
[17] The small claims court is a busy court which is designed to handle matters in a relatively informal and summary fashion. The court plays a vital role in the administration of justice in the province by ensuring meaningful and cost-effective access for cases involving relatively modest claims for damages. In order to meet its mandate, the processes and procedures in that court are relatively streamlined. When it comes to the sufficiency of reasons, an appellate court must take this context into account. See Massoudinia v. Volfson, 2013 ONCA 29, Maple Ridge Community Management Ltd. v. Peel Condominium Corp. No. 231, 2015 ONCA 520. Similarly, the Deputy Judge must be given flexibility in adapting trial procedure to the circumstances he or she is faced with. I so not intend to address every ground of appeal, but I will deal with those that appear most significant.
The conduct of the trial
[18] The appellant has been thorough in finding fault with the reasons of the Deputy Judge and in alleging unfairness. Some of her assertions about too much intervention, unfair process and lack of opportunity to make argument cannot be assessed completely because the appellant decided not to order the entire transcript of the trial. The portions of the transcript which were produced do not support these grounds for appeal.
[19] Reviewing the transcript extracts which were provided, none of the interventions appear to reach a level where they would be improper or give rise to a reasonable apprehension of bias. Great latitude must be given to trial judges in small claims court. It is one of the duties of the judge to keep the trial focused and relevant and to ensure that it can be concluded in a reasonable time. In a trial where one or more parties are self represented, it is entirely appropriate to intervene to ensure questions are proper, relevant and are not mixed with evidence or argument.
[20] The objection to telephone testimony by the defendant Ryan is ill founded. It is within the discretion of the court to permit testimony by telephone and there is nothing in the record that supports a conclusion this was unfair to the plaintiff. In fact, it was the defendant testifying by telephone who was found to be liable for the damages. Under the circumstances, there is no basis to interfere with the discretion of the Deputy Judge to permit participation in the trial by telephone.
Reliance on the proceedings in the Ontario Court of Justice
[21] The appellant complains that the Deputy Judge compelled her to file the transcript of the proceedings over the peace bond and put too much reliance on the findings in the other court. It is true that the Deputy Judge quotes from those reasons but I do not agree that his decision hinges upon it.
[22] The findings of the Justice of the Peace and the evidence given in that court are relevant to the small claims trial but not conclusive. Firstly, there was a finding in the OCJ that coming to the plaintiff’s house to serve her with legal documents was a one time incident which did not give rise to a reasonable fear of harassment or harm. This finding is relevant, if not binding, in the same sense that the refusal of the police to lay charges for trespassing was relevant.
[23] The analysis of the Deputy Judge concerning the tort of intentional or reckless causation of psychological harm appears at paragraphs 58 – 67 and he considers negligence as a cause of action at paras. 68 - 76.
[24] It is true that the Deputy Judge utilizes the findings under s. 310 of the Criminal Code as part of the factual matrix but his own findings are not based solely on the findings of the Justice of the Peace. Nor does he simply parrot those findings as if they are conclusive. The Deputy Judge finds that the plaintiff has proven that she suffers from anxiety and depression but has not proven that any of the defendants should be held liable for the infliction of harm.
[25] Amongst other things, the Deputy Judge bases this conclusion on the admission by the plaintiff at trial that there was never any physical contact, threat of harm or actual physical harm suffered by her. Quite clearly, the Deputy Judge regarded the plaintiff’s reaction to the conflict as extreme and not a reaction that the defendants ought to have anticipated. He found that on all of the evidence he was not satisfied that any of the defendants conspired to, intended to, or were reckless as to whether or not their conduct would cause harm to the plaintiff. He accepted the evidence of Ryan and Glenn that they never had any intention to intimidate the plaintiff. He was not satisfied on a balance of probabilities that the defendants were aware of the plaintiff’s exceptional emotional fragility.
[26] These are conclusions which the Deputy Judge was entitled to reach on the evidence properly before him. At the end of the day, the conduct by the defendants consisted of arguing with her at the premises, coming to her house to serve a statement of defence and refusing to pay compensation for damages they denied having caused.
Error of Law
[27] It is true that the Deputy Judge does not articulate the test for intentional infliction of mental suffering. That test was articulated by the Court of Appeal in Colistro v. Tbaytel, 2019 ONCA 197 as requiring three elements; flagrant or outrageous conduct calculated to cause harm and resulting in a visible and provable illness. It is clear however that he finds that two of those elements are missing. In addition, the Deputy Judge considers whether recklessness or negligence are proven and concludes that they are not.
[28] It is also true that the Deputy Judge does not specifically make findings on the issues of assault and trespass but it is abundantly clear from the plaintiff’s own admissions that there was no assault. It is also clear that coming to the plaintiff’s property for a lawful purpose, to serve a statement of defence, does not constitute a trespass in the absence of a specific prohibition. I find no reversible error of law.
The sufficiency of reasons
[29] There may be minor errors in the reasons but none of them are significant in the sense that they undermine any findings of fact. It cannot be supposed that the Deputy Judge would have reached a different conclusion had he stated the evidence more precisely.
[30] In some instances the Appellant is simply misunderstanding or misstating the reasons. For example the Deputy Judge concludes that Rowena was not a tenant at the relevant time because she had left the premises and was not a statutory tenant. He makes reference to an extension of the tenancy which clearly relates to the statutory extension once a lease expires. The Appellant argues that the Deputy Judge misstated the evidence by referring to a non existent extension agreement. I do not agree that the reasons reflect errors in assessing the evidence sufficient to meet the standard of “palpable and overriding error”.
[31] The reasons state what conclusions the Deputy Judge reached and on what basis and they articulate and apply the appropriate legal principles. The reasons are sufficient because they explain what has been decided and why and are adequate for meaningful appellate review. See Doerr v. Sterling Paralegal, 2014 ONSC 2335.
Failure to find liability against the parties that were noted in default
[32] It is not automatic that liability attaches to a defendant who fails to defend against a claim such as this which is an unliquidated damage claim. The defendant that fails to defend is deemed to admit the allegations in the statement of claim but it does not follow that the court must find liability if the facts or the law do not support such a finding.
[33] A review of the amended statement of claim reveals a document that is filled with assertions, opinions, conclusions and evidence. In my view it is not a document that can be translated into a set of admitted facts sufficient to obtain judgment.
[34] In this case, the Deputy Judge found on the evidence that Rowena ceased to occupy the premises in July of 2012 and was no longer a statutory tenant in July of 2014. He found that only Ryan remained a statutory tenant and it was Ryan who was liable for the damage to the premises. Glenn had guaranteed the rent under the lease but his obligations ceased when the lease expired. Adam Herman was never a tenant.
[35] As for the damages the plaintiff sought for infliction of mental anguish, assault or trespass, the deputy judge held that the evidence did not support these torts. Specifically, there was no evidence of an assault, there was no trespass because attending at the property to serve a statement of defence was a lawful purpose. The Deputy Judge found that the evidence did not support a finding that any of the defendants knew the plaintiff was particularly susceptible to stress or would have known that the ordinary conflict experienced in a landlord tenant dispute would cause her health difficulties.
[36] There was no evidence of malice, or of flagrant and outrageous conduct calculated to produce harm. The plaintiff’s only evidence of bad conduct other than coming to her house late at night to serve her was at its highest, refusing to acknowledge fault for damages, arguing with her, raising their voices and refusing to pay damages.
[37] Because the Deputy Judge found that the plaintiff had failed to prove her case for tort damages, he was also entitled to reject the claim against the defendants noted in default. The court is not obligated to grant judgment on a bald set of admitted facts if the evidence presented by the plaintiff is rejected and those facts by themselves are insufficient to support either liability or damages.
[38] In the context of this trial, while it would have been appropriate for the Deputy Judge to specifically address this issue in his reasons, it is clear that taken in context he turned his mind to this issue. In fact, Mr. Herman was in court and sought to set aside the noting of default. That motion was refused but no liability was found on Mr. Herman. The only basis for imposing liability since he was clearly not a tenant, would have been in tort. As the plaintiff could not prove tort liability or tort damages, there is no injustice in dismissing the action against either Mr. Herman or Rowena Evangelista.
Conclusion and Costs
[39] In conclusion, the appellant has not demonstrated serious error on the part of the Deputy Judge. The appeal is dismissed.
[40] Ryan Evangelista remains liable for the judgment granted against him. He has not paid the judgment and he did not provide evidence of any costs he had incurred in responding to the appeal. I decline to award costs to Ryan. He is to pay the outstanding judgment within 60 days.
[41] Glenn Evangelista attended court. He is entitled to costs. The plaintiff shall pay costs to Glenn fixed at $750.00 to be paid within the next 60 days.
Mr. Justice C. MacLeod
Date: November 27, 2019
CITATION: Li v. Evangelista, 2019 ONSC 6881
COURT FILE NO.: DC-18-2422
DATE: 2019/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Hui Ling Li, Plaintiff (Appellant)
AND:
Glenn Evangelista, Ryan Evangelista, Rowena Evangelista, Adam Herman, Defendants (Respondents)
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Hui Ling Li, in person
Glenn Evangelista, in person and Ryan Evangelista, by telephone
Decision and reasons
Mr. Justice Calum MacLeod
Released: November 27, 2019