CITATION: , 2023 ONSC 4461

DIVISIONAL COURT FILE NO.: 15-866

DATE: 20230801

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

BRIAN BILYK and OLESIA BILYK

Appellants

– and –

GREGORY S. BREEN, MARIE L. BREEN and DUKE COLLISION CENTRE INC.

Respondents

Olesia Bilyk, self-represented and on behalf of the co-appellant Brian Bilyk

C. Baker, for the Respondents

HEARD: June 30, 2023

REASONS ON APPEAL

MCCARTHY J.

The Appeal

[1] This an appeal from the judgment rendered by Deputy Judge Alan Fisher (the “judge”) of the Newmarket Small Claims Court dated June 13, 2019 (the “judgment”).

[2] The Appellants request that the judgment be set aside, and that judgment be granted to them in accordance with their claim; in the alternative, they seek a new trial.

[3] The grounds for the appeal are set out in the notice of appeal and may be summarized as follows:

a. That the judge erred in law and in fact in dismissing the action against the Defendants Gregory S. Breen and Marie L Breen personally (the “personal Defendants”) and allowing the Plaintiffs $1,000 in damages against the corporate Defendant Duke Collision Centre Inc. (“Duke”) only;

b. That the judge erred by ruling that the Consumer Protection Act 2002, S.O. 2002, c. 30, Sched. A, (the “Act”) did not apply to the facts of this case;

c. That the judge erred in fact in his findings of credibility pertaining to the Defendant Gregory Breen;

d. That the judge erred in not awarding costs to the Plaintiff.

Background

[4] The dispute arose over work performed by Duke on a motor vehicle purchased by Brian Bilyk from a used car lot in 2007 (the “vehicle”).

[5] The trial of the action was heard over 4 days.

[6] For the reasons which follow, I have concluded that there is no merit in the appeal and that it must be dismissed.

Standard of Review

[7] The standard of review applicable on questions of law is correctness. On questions of fact, the standard is palpable and overriding error, while for questions of mixed fact and law, the standard is palpable and overriding error, unless the error relates to an extricable question of law: see Housen v Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10 and 36.

The Dismissal Against the Personal Defendants

[8] The judge did not err in dismissing the action against the personal Defendants. The judge correctly applied the law applicable to corporate entities. It was open to the judge to find on the evidence before him that there was no liability against the personal Defendants.

[9] There was evidence that the work was being performed by Duke. The sign outside the Respondents’ shop clearly read “Duke’s Auto Collision”. In addition, the Plaintiff Brian Bilyk admitted that he understood that he was dealing with Duke, a corporation, and not with the Breen Defendants personally. His evidence was clear that, “I thought I was dealing with Duke Collision”.

[10] Brian Bilyk also admitted that he sued the Breen Defendants personally because they would not give him a receipt. At the same time, he acknowledged that Duke was an incorporated company. There was no evidence to suggest that Duke was not incorporated in 2007, when the Plaintiffs brought the vehicle into the shop, nor was there any evidence that it operated as anything other than a corporate entity during the time that its principal Gregory Breen retained and worked on the vehicle.

[11] The judge had no basis for piercing the corporate veil, nor for making findings or awards of damages against the personal Defendants.

[12] I would give no effect to this ground of appeal.

The Consumer Protection Act, 2002 (the “Act”)

[13] I can find no error in law on the part of the judge in concluding that the Act did not apply to the facts of the case. Section 1 of the Act contains the following definition:

“consumer” means an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes;

[14] There was evidence upon which the judge could rely that the Plaintiff Brian Bilyk was not a consumer; namely that the Plaintiff had purchased the vehicle for business. This was admitted by the Plaintiff when he was questioned by the judge. As well, Gregory Breen, whom the judge found to be credible, confirmed that Brian Bilyk had advised him that the co-Plaintiff, “wanted this car for his business, for advertising…”.

[15] The evidence of Gregory Breen was not challenged; moreover, there was no evidence led to contradict the fact that Brian Bilyk, by his own admission, had purchased the vehicle and was looking to have it restored for business purposes.

[16] That being the case, the judge was entitled to conclude, as he did, that “the plaintiff wanted to use the car as a promotion marketing tool in his business and to take to car shows. And, the plaintiff advised the defendant of that purpose he wanted the vehicle for.”

[17] Once that finding was made, the judge was correct to rule that Act did not apply because the Plaintiff was not a consumer.

[18] I would give no effect to that ground of appeal.

Findings on Credibility

[19] It is a long-standing adage that appellate courts should show great deference to findings of credibility made at trial. Triers of fact are best placed to assess credibility: in particular, trial judges are in the unique position of seeing and hearing the evidence as witnesses testify. The Supreme Court of Canada provided the following guidance in R v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26:

Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal.

[20] An appeal court must defer to the credibility findings and conclusions of a trial judge unless there is a palpable and overriding error in those findings or conclusions: see R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at paras. 10 and 20.

[21] I can find no such palpable and overriding error in the judge’s reasons. While he referred to Gregory Breen as “unprofessional”, this pertained to his manner of conducting business on a handshake. The judge’s finding that the Defendants had done “good work” but not “excellent work” was also merely a finding, as was his conclusion that it was the fault of both parties that the terms of the work agreement remained unclear. The conclusion that Gregory Breen just gave up and did not complete the necessary work were inferences which open to the judge to draw on the evidence. None of these findings or inferences need have affected the judge’s view of Gregory Breen’s credibility. Credibility pertains to the character of the witness, the trust that one can place in their testimony and the reliability of their evidence. The judge found the personal Defendants to be credible. It does not constitute a palpable or overriding error to make findings against the interest or position advanced by a party and yet find that party to be credible.

[22] I would give no effect to this ground of appeal.

Costs

[23] The judge did not err in his decision to award no costs to either party.

[24] Costs of and incidental to a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid: see s.131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”).

[25] Section 29 of the CJA prescribes an upper limit on costs in Small Claims Court. There is no corresponding section of the CJA mandating any floor or minimum for costs.

[26] There was no error in law on the part of the judge in exercising his discretion not to award costs. The judge provided brief reasons in support of his decision (see p. 185 of the transcript of proceedings). Implicit in his reasoning was the fact that counsel for the Defendant was sued personally, the length of the trial, and the modest amount recovered by the Plaintiffs.

[27] I would give no effect to this ground of appeal.

Disposition

[28] For the reasons set out above, the appeal is dismissed.

[29] The Respondent has been successful and is therefore entitled to costs of the appeal.

[30] I would fix those costs at $2,500 inclusive of fees, disbursements and HST.

[31] The Appellants shall pay the Respondents those costs forthwith.

Justice J. R. McCarthy

Released: August 1, 2023