CITATION: Tucakov v. Vicente, 2021 ONSC 4277
DIVISIONAL COURT FILE NO.: DC 523/19
DATE: 20210614
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
B E T W E E N:
PETER TUCAKOV
Mr Tucakov, self-represented
Appellant
- and -
JOSE VICENTE and JOVIC
Peter D. Woloshyn, for the Respondent
RESTORATION INC.
Respondents
Heard by ZOOM at Toronto:
June 8, 2021
REASONS FOR DECISION
D.L. Corbett j.:
[1] This is an appeal from the trial decision of Deputy Judge Prattas of the Toronto Small Claims Court dated September 4, 2019. The case concerned payment for restoration work done by the plaintiff at the defendant’s property at 8 Wasdale Crescent, Toronto. The trial judge found a balance owing on the contract of $24,000, less $2,000 for some minor deficiencies, for a total balance owing to the plaintiffs of $22,000, plus costs of $4,000.
[2] Mr Tucakov appeals. He raises several issues in his written appeal materials, but focused on three during oral argument, only one of which raises an arguable ground of appeal: whether Mr Vicente’s corporation ought to have been added as a plaintiff by the trial judge at the start of the trial. In these reasons I first address points that do not raise arguable grounds of appeal, and then I focus on the one arguable ground of appeal.
Unmeritorious Grounds of Appeal
[3] Mr Tukacov argued that the trial judge erred finding that this was a fixed price contract for $75,000. He says that this figure was based on an estimate of 10,000 square feet of work, and that in the result the work done was only 4,695 square feet. This was a central issue at trial and was resolved against Mr Tucakov as a matter of fact.
[4] The trial judge reviewed the course of dealings between the parties, the written records, including a cheque tendered by Mr Tucakov for which payment was stopped shortly after the payment was issued. The trial judge provided detailed reasons to support his finding that this was a fixed price contract. A hearing in this court is not a re-weighing of the evidence called at trial. Further, the plaintiff has not put the trial evidence before this court on this appeal. There is no basis for this court to intervene on this issue.
[5] Mr Tukacov argued that there were substantial deficiencies in the work, including deviations from proper standards of performance by contractors. It is clear from the reasons below that the trial judge assessed the deficiency claims in detail. He did not consider them to be nearly as serious as Mr Tucakov claims and he did not accept Mr Tucakov’s statements as to what it would cost to remedy deficiencies that are still outstanding. The trial judge allowed $2,000 against the contract price on account of the outstanding deficiencies, which the trial judge considered fair and reasonable. These findings were based on the evidence referenced in the trial judge’s decision. The appellant did not put the trial evidence before this court on appeal, and thus cannot argue before this court that the trial judge’s findings were inconsistent with the record. Again, there is no basis on which this court can intervene.
[6] Mr Tucakov made statements about the wealth of the plaintiff, how devoted Mr Tucakov is to Canada and how he trusts our justice system and hopes that his trust will not be misplaced. These are not proper arguments on appeal.
[7] Small Claims Court is a court where people may take their everyday disputes for resolution on the basis of the law and good conscience. The Deputy Judge gave this matter far more time at trial than should have been required for such a simple set of disputes. He patiently considered the arguments raised and the evidence put before him and came to factual findings that support his conclusions. No errors of law are revealed in the trial judge’s reasons. No palpable and overriding error of fact is established on the basis of the small portion of the record before the trial court that was placed before this court on appeal.
[8] Finally, Mr Tucakov raised several other arguments in his notice of appeal and in his written materials. I reject these other arguments for the bases set out in the respondent’s factum.
Adding the Corporate Plaintiff
[9] I now address the one ground of appeal with arguable merit.
[10] The claim was commenced in the name of Jose Vicente and not in the name of Mr Vicente’s company, Jovic Restoration Inc. Mr Tucakov counterclaimed against both Mr Vicente and Jovic.
[11] In his reasons, the trial judge stated as follows:
The action was commenced on September 21, 2016 by Jose Vicente. At the commencement of trial on consent of the parties the Plaintiff’s Claim was amended to add Jovic Restorations Inc. as an additional party plaintiff.
[12] The appellant has produced a partial transcript of 14 pages from the start of the proceedings on September 25, 2018. At the start of the trial, Mr Vicente took the stand and began to testify. The question of whether the claim was his own personal claim or that of his company quickly emerged, and the trial judge raised this as an immediate concern: why should the court spend time hearing all the evidence about disputed construction work if the proper plaintiff was not before the court (Transcript, page 10). The trial judge ordered a brief recess so that the parties’ representatives could sort out how best to proceed.
[13] The parties did not resolve the issue during the recess, and further discussions followed with the court. Those discussions disclose that the parties had been self-represented throughout most of the proceedings. The claim had been prepared by the plaintiff himself. The defendant had not asserted a defence that the individual plaintiff was not the contracting party. No one had raised the issue at any point prior to the commencement of trial.
[14] The transcript excerpt goes on to say that the defendant’s representative took the position that the defence “is largely predicated upon the fact that the wrong party has sued my client.” In response to this the trial judge asked “Is that what your defence says?” to which the defendant’s representative responds “No….” (Transcript, page 13). The defendant’s representative then adds that there is “still the question of the statute of limitations”.
[15] The trial judge then said as follows:
… Well it’s a bit of a mess here, okay. I mean, my view is, I haven’t heard any argument as to prejudice for the defendant. My view would be, or my inclination will be to add the corporate defendant as an added plaintiff and then I will reserve the issue of costs down the line that this addition at this stage may have caused to the parties, okay. That’s my view.
This is the end of the transcript excerpt provided to this court (14 pages in all).
[16] It turned out that the defendant’s defence was not “largely predicated” upon the failure to name the corporate defendant. The trial lasted for five court days, after which the parties provided the trial court with written submissions. The appellant did not file on this appeal any of this record from the court below, aside from a few pages of exhibits and the 14-page transcript excerpt.
[17] In his certificate respecting evidence, Mr Tucakov identified three exhibits and “the transcript” as included in the evidence required for the appeal. There is no explanation as to why only 14 pages of transcript were filed, and no basis upon which I can conclude that the transcript excerpt contains everything that transpired on the issue of adding the corporate plaintiff. It may; it may not.
[18] I am not prepared to conclude that the trial judge erred in saying that the corporate plaintiff was added on consent. I accept that this issue was not initially on consent, but in the absence of a transcript of the court’s formal ruling on this point, some evidence that the excerpt does reflect everything that was said on this issue at trial, or a complete record of the trial from which I could satisfy myself on this issue, I am not satisfied that the trial judge’s statement in his reasons was an error.
[19] In the alternative, if the transcript excerpt does set out everything that was said on this issue during the trial, and therefore that the trial judge erred in stating the order was made on consent, I would uphold the trial judge’s decision to add the corporate plaintiff.
[20] On the evidence before the trial judge, the claim was framed by a self-represented litigant. Mr Vicente considered that he and the corporate plaintiff were the same thing: the company is wholly-owned by him, he was the only person involved in dealing with Mr Tucakov, and he drew no distinction between his company and himself.
[21] The statement of defence defended on the merits and did not dispute that Mr Vicente was asked to do work on Mr Tucakov’s building and that Mr Vicente would be entitled to be paid for it. The claim was defended on the substantive merits – in respect to the terms of the contract (whether it was fixed-price or on the basis of an agreed price per quantity) – in respect to whether the contract was completed – and in respect to whether there were deficiencies.
[22] It would not have been open to the trial judge to add the corporate plaintiff as a party after the expiry of a limitation period – prejudice or its absence have nothing to do with analysis of a limitations defence. However, it was open to the trial judge to conclude that the failure to list the corporation as a plaintiff was a matter of misnomer and that the defendant knew and understood that he was being sued by the person with whom he contracted to work on his building. The fact that the issue was not raised in the pleadings or at any of the pre-trial proceedings – during which the parties were largely self-represented – and that those pre-trial proceedings concerned production of documents and organization of evidence respecting the claim on the merits – and that Mr Tucakov led several days of evidence all support a conclusion that the failure to include the corporation was a matter of misnomer.
[23] In the result the appeal is dismissed with costs to the respondent fixed at $3,500 inclusive, payable forthwith.
D.L. Corbett J.
Released: June 14, 2021
CITATION: Tucakov v. Vicente, 2021 ONSC 4277
DIVISIONAL COURT FILE NO.: 523/19
DATE: 20210614
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
Peter Tucakov
Appellant
- and –
Jose Vicente and Jovic Restoration Inc.
Respondent
REASONS FOR DECISION
D.L. Corbett J.
Released: June 14, 2021