2024 ONSC 2927
DIVISIONAL COURT FILE NO.: 2826/23
DATE: 20240527
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.B. Reid, Myers, and Leiper JJ.
BETWEEN:
RAMI MADHOUN
Applicant
– and –
WHITTEN & LUBLIN PROFESSIONAL CORPORATION
Respondent
Rami Madhoun, for himself
Marc W. Kitay, for the Respondent
HEARD BY VIDEOCONFERENCE: May 21, 2024
BY THE COURT:
Background and Jurisdiction
[1] Mr. Madhoun has sued his former lawyers in the Toronto Small Claims Court. The lawyers did not deliver a defence within the time prescribed by the Rules of the Small Claims Court, O. Reg. 258/98. The lawyers were noted in default.
[2] Mr. Madhoun seeks judicial review of the decision of Deputy Judge J. Harper in the Toronto Small Claims Court on September 20, 2023 setting aside the noting in default in accordance with Rule 11.06 of the Rules of the Small Claims Court. That means that Mr. Madhoun’s lawsuit will continue in the ordinary course.
[3] Mr. Madhoun accepts that since the order of the Deputy Judge did not conclude his lawsuit, the order is not a “final” order. That means he cannot appeal the order. Instead, he asks the court to exercise its supervisory authority to set aside the judge’s order under s. 2(1) of the Judicial Review Procedure Act, RSO 1990 c J.1.
[4] The Small Claims Court is designed to provide people with relatively quick and affordable access to civil justice. Procedural issues are minimized to avoid costs and delay and to allow the court to focus on trying to do justice between the parties.
[5] For this reason, this court has recognized that the jurisdiction to intervene on judicial review in ongoing Small Claims Court actions will only be exercised on very limited grounds. Generally, this court will not consider granting relief by way of judicial review unless a Small Claims Court judge acted in excess of her jurisdiction or without according the parties procedural fairness. Peck v. Residential Property Management Inc., 2009 38504 (ON SCDC), at para. 3
The Facts
[6] In this case, the defendant’s defence to the plaintiff’s claim was due on June 26, 2023. As no defence was delivered, the defendant was noted in default under the Rules of the Small Claims Court. The plaintiff applied for an assessment hearing on June 27, 2023. That is how management of the defendant learned of the claim. There was no evidence rebutting the affidavits delivered by the defendant on its motion to set aside the noting in default, that service of the claim on its receptionist did not bring the claim to the knowledge of the owners or operating minds of the defendant corporation. In fact, service on the receptionist was not sufficient to comply with Rules 8.01, 8.02 (c), or 8.03 (3) of the Rules of the Small Claims Court.
[7] The defendant moved to set aside the noting in default on June 29, 2023 within two days of learning noting in default. The defendant established that it had a meritorious defence and a reasonable explanation for the default. That was enough to satisfy the requirements of Rule 11.06 (a) and (b).
Analysis
[8] There is no question of the Deputy Judge’s jurisdiction to hear the motion and to exercise her discretion to set aside the noting in default under Rule 11.06 of the Rules of the Small Claims Court. Mr. Madhoun confirmed that on this application he was not challenging the jurisdiction of the judge to hear the motion to set aside the noting in default.
[9] Mr. Madhoun claims that the principles of natural justice were violated in the court below. He submits that the court colluded with the defendant to decide against him. He relies on numerous concerns including:
a. During the default judgment damages assessment that commenced on September 7, 2024 the presiding judge disappeared briefly from the virtual hearing. On re-connecting, the judge questioned whether Mr. Madhoun had a valid basis to seek damages against the defendant despite the defendant’s deemed admission of the facts in the claim set out in the Small Claims Court Rules. The judge then convinced Mr. Madhoun to adjourn the assessment;
b. The motions list for the courtroom in which the motion below was heard lists five motions commencing at 10:00 a.m. and five motions commencing at 1:00 p.m. His motion was the last motion in the morning sitting. The lists for the other courtrooms show specific times for each of only five motions listed in them. Mr. Madhoun believes that the lack of specific set times for each of the ten motions before Deputy Judge Harper that day was designed to prejudice him;
c. Mr. Madhoun points to metadata suggesting that two different versions of Judge Harper’s order were prepared. He does not suggest that the content of the alleged versions differed;
d. Mr. Madhoun objects to emails he received from court staff telling him to stop sending emails to senior judges about Deputy Judge Harper’s decision. He sent so many emails that he ultimately had to be told by security staff to stop harassing court staff members. He sees his emails as efforts to collect evidence and does not understand why security personnel became involved;
e. Mr. Madhoun is concerned that the Deputy Judge Harper’s formal order is in PDF format that seems to have no digital security applied and it differs in its wording from a similar decision of the same judge
in another case. But the omitted detail – the judge’s reference to Rule 11.06 – was plainly stated by the judge in her oral endorsement made during the hearing;
f. Mr. Madhoun is concerned that he was served with the defendant’s factum below only five days before the hearing of the motion. He submits that this violated Rule 37.10 of the Rules of Civil Procedure, RRO 1990, Reg 194, which requires a moving party to deliver a motion record seven days before the hearing of the motion. The time requirement for delivering a motion record in a lawsuit in the Superior Court of Justice has no bearing on the filing of a factum on a motion in the Small Claims Court. There was nothing untoward about the judge receiving the factum even if delivered a day or two days’ late;
g. Mr. Madhoun was not content with the CDs containing the digital recordings of the motion hearings sent to him by the court. He returned a first set of CDs because no one “took ownership of them.” A second set of CDs was then sent to him. He compared the metadata of the two sets of recordings and they were not identical. Mr. Madhoun does not say there are any differences in the digital recordings. Nevertheless, he submits he has discovered “tampering” that was only corrected after he requested the second set of CDs and copied his request to the Prime Minister of Canada;
h. Mr. Madhoun was sent a new Zoom link for this hearing just prior to or just after the set hearing time. All participants needed the new link.
[10] Nothing in the materials or Mr. Madhoun’s submissions support a finding that the hearing before Deputy Judge Harper lacked procedural fairness or violated the principles of natural justice. There is nothing unusual or objectionable about judges having connectivity issues during a videoconference hearing. Zoom coordinates sometimes change at the last minute before a court hearing. Motion lists differ in length. Judges may use different templates to draft orders and these templates may have metadata associated with an earlier version of an order. All of these issues are features of a high-volume administration of justice.
[11] Mr. Madhoun further views regular bureaucratic steps in this proceeding as efforts to “silence” him. Those steps did not interfere with his being heard by Deputy Judge Harper and by this court.
[12] Mr. Madhoun had notice of the issues that were to be heard by Deputy Judge Harper. He had the opportunity to deliver evidence and to make written submissions in advance. He availed himself of those opportunities. He participated fully in the oral hearing. There is no basis to find a failure of the Deputy Judge to accord to Mr. Madhoun all the fundamental elements of natural justice and procedural fairness described by the Supreme Court of Canada in precedent cases such as Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC).
[13] In his affidavit sworn January 2, 2024, Mr. Madhoun raises other issues concerning his treatment by court officials and staff after the hearing of the motion to set aside the noting in default. This evidence does not relate to the issues on judicial review of Deputy Judge Harper’s decision or the fairness of those proceedings. In view of the dismissal of the appeal, we do not need to rule on whether the affidavit is properly received as fresh evidence.
Conclusion
[14] Section 25 of the Courts of Justice Act describes the authority of the Small Claims Court in the following way:
Summary hearings
- The Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.
[15] The Deputy Judge proceeded as required and exercised her discretion in accordance with the relevant rules and the dictates of fairness and good conscience.
[16] The application is therefore dismissed.
[17] Mr. Madhoun did not proceed with his request for a transfer of his claim from the Toronto Small Claims Court to the Ottawa Small Claims Court. He understands that a request for that relief is to be made in the Small Claims Court proceeding itself.
Costs
[18] Mr. Madhoun makes overt allegations of criminality and collusion among judges, court staff, and the defendant. He assumes that there are nefarious motives behind bureaucratic processes. He asserts conspiracies among people with no evidence beyond his own suspicions drawn from a lack of comprehension of the procedures at play.
[19] Parties and others in the justice sector are not to be subjected to abusive allegations concerning their actions and integrity absent admissible evidence of actual misconduct. Allegations of wrongdoing are not to be made based on speculation and innuendo. This applies equally to self-represented parties as it does to lawyers.
[20] The respondent seeks costs of this appeal. The respondent submits that due to Mr. Mahoun’s unproven allegations of serious wrongdoing Mr. Mahoun should be ordered to pay full indemnity costs on a punitive basis. We have decided that it is reasonable in this case for costs to be awarded on a scale which reflects the respondent’s success, recognizes Mr. Madhoun’s status as a self-represented litigant, but also takes into account his failure to participate in case conferences and his allegations of improper conduct by the respondent without an evidentiary basis for making such allegations. If this conduct continues during this litigation, Mr. Madhoun is cautioned that future costs awards may be granted on a higher scale..
[21] The applicant, Mr. Madhoun shall pay costs to the respondent fixed in the amount of $7,500 all-inclusive within thirty (30) days.
R.B. Reid J
Myers J
Leiper J
Released: May 27, 2024
2024 ONSC 2927
DIVISIONAL COURT FILE NO.: 2826/23
DATE: 20240527
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.B. Reid, Myers, and Leiper JJ.
BETWEEN:
RAMI MADHOUN
Applicant
– and –
WHITTEN & LUBLIN PROFESSIONAL CORPORATION
Respondent
REASONS FOR JUDGMENT
The Court
Released: May 27, 2024