Hartman v. ABS Hospitality Inc., 2022 ONSC 2890

COURT FILE NO.: DC-19-04

DATE: 2022-05-13

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Paul Hartman, plaintiff, appellant

AND: ABS Hospitality Inc., defendant, respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Appellant in person; no one appearing for the respondent

HEARD: May 13, 2022 at Welland by videoconference

ENDORSEMENT

[1] This is an appeal from the decision of deputy judge Fay Ann Guilbeault of the Small Claims Court dated December 2, 2019.

[2] In proceedings before deputy judge Roderick McDowell, the appellant obtained judgment against the defendant on April 4, 2016 as follows:

a. $7,681.30 for breach of contract;

b. An order to return certain equipment within 30 days failing which judgment would go for a further $10,000;

c. Interest and costs.

[3] The equipment was not returned. The appellant filed a writ of execution against the defendant’s real property some time before July 2018.

[4] The defendant brought a motion to lift the writ and to enforce a settlement. It alleged that on July 9, 2018, the plaintiff agreed to settle the debt on condition that the defendant paid $10,000 by July 19, 2018 and that it had made that payment.

[5] The motion judge granted the motion. She accepted the defendant’s evidence. Her decision was supported by the following evidence:

a. a written document dated July 9, 2018 purporting to be signed by John Dixon of Dixon Commercial Investigators Inc. on behalf of the appellant (appeal book tab 7) (“the settlement document”);

b. the appellant’s admission that he had hired Dixon to collect the debt (transcript, p.7 lines 1 to 5);

c. the appellant’s admission that he had received the $10,000 (transcript, p.31, lines 1 to 15); and

d. a letter dated May 27, 2018 from the appellant to Dixon, that is, less than a month before the settlement document was executed, in which the appellant advised Dixon, “Debtor ID 482076 ABS Hospitality Inc. I have acquired judgment in the courts in excess of $17,000.00. Sherrifs’ [sic] certificate is on title over six months ago. Debtor is now phoning me to settle.” (E-24, appeal book tab 11).

[6] The plaintiff appeals, alleging errors of fact and law. The standard of review is correctness on a question of law and palpable and overriding error on a question of fact: Housen v. Nikolaisen, 2002 SCC 33.

Ordering more than was asked

[7] The appellant argues that the judge’s decision went beyond what was sought in the motion. The respondent’s motion asked for an order to “terminate garnishment and/or withdraw writ.” The judge ordered the withdrawal of the writ and went on to say in her reasons that the judgement was paid in full and there was no need for any further judgment debtor examination.

[8] I do not accept that the judge went beyond what she had been asked. The fact that the judgment had been satisfied was essential to the judge’s reasons for lifting the writ. There was no error in her saying so.

[9] In Small Claims Court, the judge’s order is written by hand on a form entitled “Endorsement Record/Order of the Court – fiche d’inscription/ordonnance judiciaire.” The distinction between and endorsement and an order is not as sharp as it is in Superior Court, where a formal order is issued and entered based on the judge’s endorsement. As in Superior Court, the appeal is from the order, not the reasons. I do not take from the endorsement that the judge made an order for which she was not asked. She ordered that the writ be lifted. The reason for her order was that the debt had been satisfied. It was important for the parties to know that this finding of fact had been made for two reasons:

a. So that they would know that no further proceedings to enforce the debt could take place; and

b. Because a judgment debtor examination had been adjourned pending the outcome of the motion.

The agent’s authority to settle

[10] The appellant argues that the judge erred in failing to require the defendant to prove that the plaintiff had given specific instructions to the collection agent to accept this offer and that the offer referred to the entire debt he was owed. She did not. The appellant made Dixon his agent. Dixon had authority. If there was any misunderstanding as to the scope of Dixon’s instructions, that is between the plaintiff and Dixon.

Interpretation of the settlement document

[11] The judge interpreted the settlement document as a settlement of the entire judgment debt. The appellant argues that this is unreasonable. Why, he asks, would he accept $10,000 when he was owed over $17,000? I do not think that the judge’s interpretation was unreasonable. The appellant was not just offered $10,000. He was offered $10,000 within a week. He had not seen a penny from his judgment for over two years. A person might well find it reasonable to accept such an offer. The judge’s interpretation was available to her on the evidence. It is not for me to re-try the case on appeal.

[12] The appellant also argues that the settlement could not have applied to the additional $10,000 because that paragraph of the judgment was not in effect until 2019 when he filed an affidavit to the effect that the property had not been returned. I do not accept this argument. Filing an affidavit stating that the equipment had not been returned was not mentioned in Mr McDowell’s order and was not a condition precedent to its going into effect. I note that the appellant’s solicitor was able to file the lien before the affidavit was filed. The court only asked for an affidavit when the appellant applied for a judgment debtor examination in January 2019.

Conduct of the motion hearing

[13] The appellant argues that the judge did not understand that he was responding to the motion, not bringing it, and that for this reason she asked him an inordinate number of questions.

[14] First, the transcript (for example, page 20, lines 1 to 5) shows clearly that the judge understood who was bringing the motion.

[15] As to the questions, this was not a trial. This was oral argument based on written evidence on a motion. The judge was entitled to ask questions to understand the appellant’s argument. Eventually, she succeeded in getting him to focus on the point. He had tended to focus on irrelevancies, such as the defendant’s corporate address and the form of payment, whether by cheque or credit card. The judge was right not to allow the appellant to wander to his detriment down the path of irrelevancy. His argument was that the settlement document did not represent a settlement of the entire judgment. The judge helped the appellant to articulate this argument. She was not obliged, however, to accept it.

Misapprehension of evidence as to the amount of the judgment

[16] Finally, the appellant argues that the judge misapprehended the evidence on the amount of the judgment. At one point in oral argument the judge said that it looked as if the failure to return the equipment in 30 days increased the judgment to $10,000, not by $10,000. From her reference in reasons for judgment to E-24 (the letter that talks about over $17,000) it seems clear that the judge was not under this mistaken impression when she decided the case. In any event, if this was an error, it was not essential to her reasoning and could not have affected the result. The result followed from the findings that the plaintiff had retained Dixon and that Dixon had settled the entire debt for immediate payment of $10,000. It would not have been an overriding error.

Conclusion

[17] I see no error of law or palpable and overriding error of fact. The appeal is dismissed.

J.A. Ramsay J.

Date: 2022-05-13