CITATION: Manafa v. Tannous, 2023 ONSC 6552
COURT FILE NO.: DC-22-38
DATE: 2023 11 21
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Joan Manafa
Joan Manafa, Defendant/Appellant in person.
Defendant/Appellant
- and -
Tony Tannous
R. P. Zigler, for the Plaintiff/Respondent
Plaintiff/Respondent
HEARD: October 11th, 2023
REASONS FOR JUDGMENT
LEMAY J
[1] The Appellant, Joan Manafa, is a lawyer and a homeowner. She engaged the Respondent, Tony Tannous, to perform some renovations on her home. When the work was complete, the parties got into a dispute over how much was owing on the contract and the Respondent sued the Appellant in Small Claims Court. There were also disputes over whether the Respondent conducted the renovations properly.
[2] The Appellant also brought a Defendant’s claim against the Respondent. Her claim was that the Respondent had improperly taken both her old kitchen cabinets and some tea for his own benefit. The value of that claim was approximately $35,000. Both claims proceeded to trial in the Small Claims Court. The trial of all issues between the parties was held before Upenieks D.J. over four non-consecutive days in 2022.
[3] At the conclusion of the submissions, the Deputy Judge provided oral reasons granting the Respondent’s claim for monies owing in the sum of $20,046 plus interest and costs. He denied the Appellant’s claim in respect of the kitchen and the tea.
[4] The Appellant appeals to this Court, claiming that the Deputy Judge erred in failing to properly consider and apply the Consumer Protection Act 2002, S.O. 2002, c. 30, Sched. A. She also alleges that the Deputy Judge erred by failing to interpret and apply the contract between the parties in accordance with contractual principles, including the contra proferentem rule and the principle that the contract must be considered as a whole. Finally, the Appellant argues that she was denied natural justice because the Deputy Judge had an actual or perceived bias, that the Deputy Judge prevented her from relying on specific evidence and that the Deputy Judge failed to give adequate reasons.
[5] In addition to these grounds, the Appellant also advised during the oral argument before me that she was advancing her counterclaims that she was overcharged and that her kitchen cabinets and tea were improperly taken by the Respondent.
[6] For the following reasons, the Appellant’s appeal is dismissed in its entirety.
Background Facts
a) The Parties, the Work and the Contract
[7] The Respondent is a contractor who does residential renovations and has been doing renovations work since 2001. Sometimes he does the work himself and sometimes he has a crew that he works with. The Appellant is a lawyer who also owns several residential properties.
[8] The Appellant hired the Respondent to perform some renovations at her personal residence in Brampton. These renovations started with a request to remove and remedy some work that was performed by a previous contractor as well as perform some new work. The original focus was on the installation of a soaker tub in the master bedroom. The renovations were done between late 2016 and the summer of 2017.
[9] Originally, work was to be done in the master bathroom and other areas. Over the next few months, the scope of work being performed by the Respondent expanded to involve other activities throughout the residence.
[10] The parties did not have a formal contract. Instead, the Respondent would advise the Appellant as to how much each individual project would cost. These estimates were handwritten. It appears that most of these estimates were shown to her, but that a written quote was never given to the Applicant. The Deputy Judge also accepted that the Respondent kept these notes in a diary and that he received approval from the Appellant for all of the work except for the painting quote.
[11] The Appellant would pay some of the amounts owing when she had money. Ultimately, the Appellant paid the amount of $34,500 on account of the work that the Respondent had performed. There were discussions between the parties as to what amounts were still owing and when they would be paid.
[12] The Respondent alleged that, on July 11th, 2017, the parties reached an agreement that the amount that the Applicant owed the Respondent was $29,546. The discussion between the parties took place in the Appellant’s house. The Respondent testified that he showed the Appellant a sheet of paper showing what had been added to the list of work most recently as well as what was still owing. Ultimately, the amount that was still owing was over $30,000 and was reduced to $29,546.
[13] At the time that this conversation was held, the Respondent had a friend named Raymond Haddad present. Mr. Haddad was also one of the Respondent’s sub-trades. Mr. Haddad did not actually see the paper that the parties were looking at, but he heard the discussion, spoke to the Respondent in Arabic and encouraged him to provide the Appellant with a discount, as it was possible that there would be work to be done on the basement of the Appellant’s home.
[14] After the Respondent alleged that this agreement was made, the Appellant continued to make payments as described at paragraph 38 of the Deputy Judge’s reasons. These payments totalled $9,500. The last payment was made on October 20th, 2017. These payments were included in the calculation of $34,500 set out at paragraph 11.
[15] I should note that the Deputy Judge concluded that the Appellant did not pay any HST on the amounts that she was charged and that the parties had agreed that there would be no invoices and that no HST would be paid.
[16] On November 15th, 2017, the parties reached a point where they disagreed as to what should be paid and what work was still to be completed. At that point, the Appellant refused to make any further payments, and the Respondent subsequently commenced this action.
[17] Prior to the Respondent’s involvement in her renovations, the Appellant had purchased a new kitchen and had it installed. It was subsequently removed by the Respondent as the Appellant was doing further renovations in the kitchen. At trial, the Appellant testified that the Respondent had literally wrestled the kitchen cabinet out of her hands. However, the record shows that the first time that the kitchen cabinet issues appeared as an issue was in the text messages between the parties in November of 2017, after the payment dispute had arisen.
[18] Finally, there was the evidence in respect of the tea. At trial, the Appellant alleged that the Respondent had stolen some $1,200.00 worth of tea from her while he had been performing the work. Again, the record shows that the first time that the kitchen cabinet issues appeared as an issue in the text messages between the parties was in November of 2017, after the payment dispute had arisen.
b) The Trial
[19] The Respondent served a claim for the monies that he claimed he was entitled to. The Appellant provided her Statement of Defence and also brought a Defendant’s claim for the alleged improper removal of the kitchen and for the tea that the Respondent had allegedly appropriated.
[20] The trial was held over four days before the Deputy Judge. The Plaintiff provided viva voce testimony from himself and from Mr. Haddad. He also provided some expert evidence. The Defendant also testified. She provided two expert reports. The first was from a handwriting expert, and the second was from a builder who commented on the quality of the work performed by the Respondent.
[21] The handwriting report addressed the issue of who had made handwritten changes to the sheets of paper that the Respondent used to calculate what the Appellant owed him. The builder commented on the quality and cost of the work performed by the Respondent.
[22] At the conclusion of argument, the Deputy Judge delivered oral reasons that consumed approximately twenty-five pages of Court transcript. His reasons set out the following conclusions:
a) That, in July of 2017, the parties agreed on the amount owing for the work that had been performed.
b) That, on the evidence before the Deputy Judge, there was also an agreement on what had been paid and what was to be paid.
c) The parties expressly agreed that invoices would not be provided, and that HST would not be charged on the amounts payable by the Appellant.
d) As a result, the Appellant was found to owe the Respondent the sum of $20,046.00, plus pre and post judgment interest and costs.
[23] The Appellant challenges these conclusions. I will now set out the issues that the Appellant has raised.
The Issues
[24] The Appellant’s appeal raises the following issues:
a) Whether the appeal of the Appellant’s counterclaims is properly before this Court.
b) Whether the Deputy Judge made a palpable and overriding error in his factual determinations.
c) Whether the Deputy Judge erred in his interpretation of the contract.
d) Whether the Deputy Judge erred in his interpretation and application of the Consumer Protection Act.
e) Whether the Deputy Judge violated principles of natural justice.
[25] I will set out the standard of review and will then outline my determination on each issue.
Standard of Review
[26] As set out in the parties’ factums, the governing standard of review is outlined in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. On a question of law, the standard of review is correctness. On questions of fact, the standard is palpable and overriding error. Finally, on questions of mixed fact and law, the standard lies upon a spectrum.
[27] In this case, two additional principles apply. First, there is the applicable standard when a reviewing court is considering the interpretation of a contract. These principles were set out by the Supreme Court of Canada in Saatva Capital v. Creston Moly, 2014 SCC 53, [2014] 2 S.C.R. 633. Rothstein J., speaking for the Court, concluded (at para. 50) that contractual interpretation cases involve issues of mixed fact and law. He also noted that it might be possible to identify an extricable question of law in interpreting a contract. However, those types of extricable questions will be rare.
[28] Second, there is the standard of review that applies when a Court is interpreting and applying a statute. The interpretation of a statute is a question of law that is reviewable on a correctness standard. Canadian National Railway Co. v. Canada (Attorney General) 2014 SCC 40, [2014] 2 S.C.R. 135 at para. 33. However, a determination of whether a specific factual situation falls within the ambit of a particular section (properly interpreted) can be a question of mixed fact and law. See, for example, Belwood Lake Cottagers Association Inc. v. Ontario (Environment and Climate Change) 2019 ONCA 70, (2019) 431 D.LR. (4th) 318 at para. 37, Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia 2015 ONCA 494, (2015) 388 D.L.R. (4th) 338 at para. 22.
[29] The standard of review will differ depending on the issues in play. I will identify the applicable standard on each issue.
Issue #1- Are the Appellant’s Appeals Properly Before the Court?
[30] The Appellant argues that her issues in respect of the kitchen cabinets and the alleged overpayment of monies are properly before the Court. There are two separate claims as described at paragraph 5, above.
[31] In oral argument, I pressed the Appellant to direct me to where she had specifically identified these issues as being included in her Notice of Appeal. The Appellant was only able to point to the following paragraph from her Notice of Appeal as identifying that these issues (which were her counterclaim) were also being appealed:
- That this Honourable Court grant the Appellant all the remedies she is entitled to under the Consumer Protection Act and common law.
[32] Rule 61.04(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states that the Notice of Appeal shall set out the relief sought and the grounds of appeal. Rules 61.08(2) and (3) state that both the argument advanced on appeal and the relief that an appellate court may grant are limited to what is set out in the Notice of Appeal. It is possible that a defect in the Notice of Appeal may prevent a party from arguing a specific issue on appeal. See Markowski v. Verhey 2020 ONCA 472 at paras 20-25.
[33] In this case, given the lack of notice in respect of the Respondent’s claim in the Notice of Appeal, there are real concerns as to whether it would be prejudicial to require the Respondent to address the issues arising from the Defendant’s claim in this appeal and real concerns about whether those questions are properly before me in any event. However, it is not necessary for me to decide this question.
[34] Assuming, without deciding, that these issues are properly before the Court, I conclude that there is no basis to interfere with the Deputy Judge’s decision on these issues either. His conclusions are findings of fact, and as a result are only open to challenge if he made a palpable and overriding error. He did not do so.
[35] As I will discuss more fully below, the Deputy Judge made adverse findings of credibility against the Appellant. Those findings of credibility were anchored in the evidence and, in particular, over issues of inconsistencies in the Appellant’s evidence about the kitchen cupboards.
[36] Further, for the reasons set out below, I have concluded that the Deputy Judge’s decision that the Appellant owes further sums to the Respondent on account of the renovations should not attract appellate intervention. As a result of that conclusion, it follows that the Appellant should not be able to recover the monies that she has already paid to the Respondent on account of the same renovations.
Issue #2- Were There Palpable and Overriding Errors in the Deputy Judge’s Decision?
[37] The Appellant advances two separate concerns with the Deputy Judge’s findings of fact. First, there was a specific concern that the Deputy Judge (in paragraphs 16 and 17 of the reasons in the Appeal Book and Compendium) had put the amount owing as $25,045.00. The Appellant argues that this number does not appear anywhere in the evidence and that this clearly demonstrates a palpable and overriding error on the part of the Deputy Judge. Second, the Appellant raised more general concerns that the Deputy Judge had failed to consider all of the Appellant’s evidence, and particularly the expert reports that she had provided. I reject both arguments.
[38] I start by observing that the standard that the Appellant must meet on these issues is to demonstrate that the Deputy Judge committed a palpable and overriding error. With that in mind, I will address each of the issues that the Appellant has raised.
[39] On the question of the $25,045 number, there are two problems with the Appellant’s submissions. First, this number actually appears in the Appeal Book and Compendium (at page 125). It was in evidence as part of the text message exchanges between the parties.
[40] Second, it is clear from reading the rest of the judgment and following the Deputy Judge’s math through the decision that this is a typographical error. The numbers in other places reflect the evidence of the Respondent and the remainder of the numbers fit together.
[41] A mere typographical error in a judgment is not sufficient to support a finding of a palpable and overriding error. This is especially true in the case of an oral judgment, where there can also be transcription errors.
[42] In any event, as counsel for the Respondent correctly pointed out, an appeal lies from an Order and not a judgment. Grand River Enterprises v. Burnham (2005), 2005 6368 (ON CA), 197 O.A.C. 168 (C.A.) at para. 10. In this case, the Deputy Judge signed the Order setting out what was owing and it was for the $20,046, which was the number that flows from the Deputy Judge’s calculations of what was agreed minus what was paid. It also flows from the numbers that were included in the evidence.
[43] In this regard, there was a sheet of paper that was identified by the Respondent as setting out the calculations. This document supports the Respondent’s evidence. In addition, there were text messages in evidence before the Deputy Judge where the Appellant acknowledges that she owes the Respondent more money. Given both the lack of disputes in these text messages and the fact that the Appellant continued to make payments, it was reasonable for the Deputy Judge to infer that the parties were ad idem on the amounts owing.
[44] This brings me to the alleged failure to consider all of the evidence and especially the expert evidence. There are two problems with this argument. First, the Deputy Judge specifically turned his mind to the evidence of the handwriting expert. He concluded that it didn’t particularly matter who had changed the numbers on the calculations sheet. Instead, based on the other evidence before him, the Deputy Judge concluded that the parties had an agreement as to the amounts owing.
[45] This leads to the second problem with the Appellant’s argument on expert evidence. The other report that the Appellant relied upon was a report from a third-party expert in the construction industry. That report set out various estimates for the cost of some of the projects that had been undertaken by the Respondent. There was also, I understand, a competing report that was presented at trial by the Respondent. Again, the Deputy Judge concluded that the parties had an agreement as to the amounts owing and that this evidence was not relevant to assessing that agreement.
[46] Both of these conclusions were open to the Deputy Judge on the facts before him. I see no reason to interfere with his findings of fact, especially since both of the expert reports that the Appellant relied upon were contradicted by the Respondent’s evidence. Considering the relevance and weight to be given to these reports in the overall assessment of the facts of the case is a matter for the trial judge.
[47] I should also deal more generally with the Appellant’s arguments that the Deputy Judge did not consider the Appellant’s evidence and did not properly address what the Appellant called “serious credibility issues for the Respondent.” The problem with this argument is that the Deputy Judge grappled with the issues of credibility.
[48] In particular, the Deputy Judge considered the issue of the old kitchen and stated that “it would appear to me that after the fact she had second or perhaps even third thoughts.” The Deputy Judge also concluded, at least implicitly, that the e-mail communications sent by the Appellant in November of 2017 contradict the evidence that she gave at trial that the kitchen cabinet was wrestled from her hands. In other words, the Deputy Judge was alive to the credibility disputes between the parties and resolved them in favour of the Respondent.
[49] Specifically, in his reasons, the Deputy Judge notes the “major shift” that took place on November 15th, 2017 and observed that the Appellant had changed her position. From this finding and others, it is not a stretch to conclude that the Deputy Judge had reservations about the Appellant’s evidence. It is not my role to interfere with the Deputy Judge’s findings, especially where there is, as is the case here, a factual foundation to support those findings.
[50] As a result, these arguments fail.
Issue #3- Did the Deputy Judge Err in His Interpretation of the Contract?
[51] No.
[52] As I have noted at paragraph 51, above, the Deputy Judge determined that, in July of 2017, the parties agreed on the amount that was still owing for the work that had been performed. This is not a question that required interpretation of the terms of a contract. It was a simple question of whether the parties had agreed on a number. The Deputy Judge found that they had. I see no reason to set that conclusion aside.
[53] The Appellant has argued that the Deputy Judge did not consider proper principles of contract interpretation, contrary to the Court of Appeal’s decision in MacDougall v. MacDougall (2005), 2005 44676 (ON CA), 262 DLR (4th) 120 (Ont. C.A.). That case involved a complex matrimonial contract. In this case, the Deputy Judge was only making findings about the amount owing as he had concluded that the parties were generally ad idem over the scope of the work. Given those findings, he did not need to consider complex principles of contractual interpretation. I would specifically note that, given the discrete nature of the issue facing the trial judge, consideration of the contra proferentem principle was also unnecessary.
[54] The Appellant also argues that the Respondent did not keep proper records and that such records are “necessary for the contractor to establish its entitlement, but are also essential to ensuring that the homeowner understands what she is paying for.” Hugh’s Contracting Ltd. v. Stevens, 2014 BCSC 1904, 77 C.L.R. (4th) 256, at para. 120, rev’d in part on other grounds 2015 BCCA 491, 50 C.L.R. (4th). I accept that statement as a general proposition. However, in this case, the Deputy Judge made findings of fact about the amount owing on the contract. I also note that the Deputy Judge had concluded that, up to November 15th, 2017, there were no real disputes between the parties. This conclusion supports the finding that the only question for the Deputy Judge to determine was the amount owing on the contract.
[55] I should also briefly address the Appellant’s assertion that it was necessary to determine who breached the contract, and that the Respondent had breached the contract by his alleged abandonment of the work half way through the job. The problem with this argument, again, is that the Deputy Judge found that the only issue between the parties at the time the dispute arose was the question of how much the parties had agreed would be paid for the work that had been done. The questions of breach, repudiation and abandonment do not arise once this factual finding has been made.
[56] Finally, the Appellant argues that the payments that she made in the summer and fall of 2017 cannot be used to infer the existence of a contract. In this regard, she relies on section 13(1) of the CPA. The problem with this argument is that the Deputy Judge based his finding that there was an agreement between the parties on his conclusions about the conversation between them in July of 2017 in addition to these payments. Again, this argument does not assist the Appellant.
[57] For these reasons, I conclude that the Deputy Judge did not err in his interpretation of the parties’ contract.
Issue #4- Did the Deputy Judge Misapply the CPA?
[58] No.
[59] In this case, the Appellant has raised both factual and legal issues in respect of the CPA. The factual issues involve whether the work was performed in a good workmanlike manner. Related to these issues is the question of whether the Respondent misrepresented his skills, abilities or knowledge. In my view, the specific disputes in this case appear to me to be questions of mixed fact and law.
[60] I begin with the purely factual issues. The Deputy Judge does not specifically address the Appellant’s claims in respect of the CPA. However, he has made factual findings that clearly dispose of those claims. Two examples of this will suffice to illustrate the point:
a) The Appellant argues that there were false and misleading representations made as to the quality of the work, which is a violation of section 14(1) of the CPA. The Deputy Judge’s reasons, when read as a whole, make it clear that he accepted that the work had been performed and done properly.
b) The Appellant argues that there was unfair pressure applied on her to renegotiate the price of the contract, contrary to section 16 of the CPA. The Deputy Judge specifically concludes that the final amount owing was arrived at after a discussion between the Appellant and the Respondent in which the Respondent reduced the amount owing in the hopes of obtaining additional work. I do not see how this would amount to unfair pressure on the Appellant.
[61] There are other fact-based claims of violations of the CPA that the Appellant advances. I see no merit in any of these claims either. In the end, the Deputy Judge implicitly accepted the Respondent’s evidence where it differed from the Appellant’s evidence. There are also, as I have discussed elsewhere in these reasons, internal and external inconsistencies in the Appellant’s evidence that justify the Deputy Judge’s conclusions in that regard. The bulk of the arguments under the CPA fail on the basis that the facts as found by the Deputy Judge do not support the conclusions that the Appellant wishes to have this Court draw.
[62] There is one argument that requires further consideration. The Appellant seeks to have the amount owing set aside on the basis that the agreement was not in writing and, therefore, contrary to section 22 of the CPA. That section requires future performance agreements to be in writing.
[63] The Deputy Judge specifically turned his mind to this issue and indicated that the parties had a specific oral contract there “there wouldn’t be invoices, there wouldn’t be HST charged. As a result, the Deputy Judge determined that the Appellant could not take advantage of the CPA
[64] In my view, this conclusion was correct. Section 93 of the CPA states:
Consumer agreements not binding
93(1) A consumer agreement is not binding on the consumer unless the agreement is made in accordance with this Act and the regulations. 2002, c. 30, Sched. A, s. 93.
Court may order consumer bound
(2) Despite subsection (1), a court may order that a consumer is bound by all or a portion or portions of a consumer agreement, even if the agreement has not been made in accordance with this Act or the regulations, if the court determines that it would be inequitable in the circumstances for the consumer not to be bound. 2004, c. 19, s. 7 (36).
[65] The Deputy Judge did not misapply this section. He concluded that the parties had an oral agreement in part because the Appellant did not want to pay HST on the amounts that she was being charged. As a result, the Deputy Judge concluded that the Appellant should not be permitted to rely on the CPA to void the agreement when she herself wanted an oral agreement. That conclusion was open to the Deputy Judge on the evidence on the record before him, and I see no reason to interfere with it.
[66] For the foregoing reasons, the Appellant’s arguments on the CPA are dismissed.
[67] The Appellant also argues that the curative provision does not apply to unfair practices under the CPA. That statement of law is correct. See CPA, section 91. However, the Deputy Judge made no findings of unfair practices in this case and, as a result, this argument does not assist the Appellant either.
[68] For the foregoing reasons, I do not see any violation of the CPA.
Issue #5- Did the Deputy Judge Violate Principles of Natural Justice?
[69] The Appellant argues that the Deputy Judge’s decision violated principles of natural justice for the following reasons:
a) The Appellant argues that the Deputy Judge had actual or perceivable bias;
b) The Appellant argues that the Deputy Judge prevented the Appellant from relying on documentary evidence in the record before the Court; and,
c) The Appellant argues that the Deputy Judge failed to give adequate reasons for his decision.
[70] I will deal with each issue in turn.
Actual or Perceived Bias
[71] The test for determining bias was originally articulated by the Supreme Court in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369. The test was described as follows (at p. 394):
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”
[72] This test is an objective one and there is a strong presumption of impartiality that applies to judges. R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484 at para. 31.
[73] The Appellant’s first complaint of bias comes from questions that the Deputy Judge posed to the Respondent at the conclusion of his evidence along with a comment about the amount of HST that had been saved. These questions were about the calculation of the work done. In her factum, the Appellant characterizes these questions as “indicat[ing] that the judge had already prejudiced the case even before hearing the evidence.” I disagree.
[74] Judges, as triers of fact, are entitled to ask questions to, inter alia, clarify evidence. These questions are posed by judges in order to ensure that the judge assesses the evidence correctly. A rule that would prohibit these types of questions would be contrary to the interests of justice. Having reviewed the transcript, I do not view the Deputy Judge as having lost his impartiality by asking these questions.
[75] The remainder of the allegations of bias relate to the Appellant’s disagreements with the Deputy Judge’s findings of fact and his assessment of credibility. As I have discussed elsewhere in these reasons, the Deputy Judge properly applied the CPA. He also had a factual basis for his assessment of the Appellant’s credibility, and his implicit rejection of her evidence. This argument fails.
Preventing the Appellant from Relying on Documentation
[76] I understood that the Appellant had abandoned this argument during the hearing. However, I will briefly address the argument. The argument is described in paragraph 113 of the Appellant’s factum:
- The second violation of procedural fairness is the prevention of the Appellant from using materials in the documentary record properly before the Court and marked as exhibit [sic] and which supports her case, on the ground that it was not ‘put to the Respondent’ in cross-examination and therefore she should not rely on it and that the Appellant cannot give evidence about a version of facts that was not put to the Respondent when he was cross-examined. [Citations omitted]
[77] I have reviewed the relevant excerpt from the transcript. The Deputy Judge correctly identified a violation of the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.). This rule was recently explained by the Court of Appeal in R. v. Quansah, 2015 ONCA 237, (2015) 125 O.R. (3d) 81. The Court stated (at para. 76):
[76] The rule in Browne v. Dunn, as it has come to be known, reflects a confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues. In some jurisdictions, for example, in Australia, practitioners describe it as a "puttage" rule because it requires a cross-examiner to "put" to the opposing witness in cross-examination the substance of contradictory evidence to be adduced through the cross-examiner's own witness or witnesses.
[78] The Court goes on to explain that the rule in Browne v. Dunn is a fairness rule. In this case, the Deputy Judge determined that the Appellant had failed to cross-examine the Respondent about a different version of events when he was testifying. As a result, the Appellant could not, as a matter of trial fairness, rely on that version of events. There was no error in this conclusion.
Lack of Reasons
[79] This issue can also be briefly dealt with. The Appellant relies on the Supreme Court’s decision in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. In that case, the Court sets out the standard that the reasons a trial judge must meet.
[80] In this case, I have set out the fundamental findings of the Deputy Judge at paragraph 22. More generally, his decision sets out the evidence he heard and the factual conclusions that he reached. As these reasons demonstrate, I have been able to follow the Deputy Judge’s chain of reasoning. That is sufficient for the reasons to meet the Sheppard test, and I reject this argument as well.
Natural Justice- Conclusion
[81] For the foregoing reasons, the Appellant’s arguments on natural justice are all rejected.
Conclusion and Costs
[82] For the foregoing reasons, the Appellant’s appeal is dismissed.
[83] The parties are encouraged to agree on the costs of this appeal. Failing agreement, the Respondent shall have fourteen (14) days from the release of these reasons to serve and file costs submissions. Those submissions are to be no more than three (3) single-spaced pages excluding bills of costs, offers to settle and case-law.
[84] The Appellant shall have fourteen (14) calendar days from the receipt of the Respondent’s costs submissions to serve and file her costs submissions. Those submissions are also to be no more than three (3) single-spaced pages excluding bills of costs, offers to settle and case-law.
[85] Costs submissions are to be uploaded to CaseLines and provided to my judicial assistant, Ryan Chan, at ryan.chan2@ontario.ca. Both methods of filing are required.
[86] There shall be no reply submissions without my leave. There shall also be no extensions to the time limits for costs submissions, even on consent, without my leave.
LEMAY J
Released: November 21, 2023
CITATION: Manafa v. Tannous, 2023 ONSC 6552
COURT FILE NO.: DC-22-38
DATE: 2023 11 21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Joan Manafa
Defendant (Appellant)
- and -
Tony Tannous
Plaintiff (Respondent)
REASONS FOR JUDGMENT
LEMAY J
Released: November 21, 2023