REASONS FOR JUDGMENT

LEMAY J.

[1] This action is over a contract for a basement renovation. It was started in 2017. The Appellants (who are some of the Defendants in the action) were noted in default. In February of 2020, the noting in default was set aside on consent of the Respondent (the Plaintiff in the action). The Defendants still failed to deliver a Statement of Defence. Therefore, on November 1st, 2021, Nadler D.J. (“the trial Judge”) conducted an assessment hearing in this matter and determined that the Plaintiff should be granted judgment as the Defendants had not defended the action.

[2] The Defendants subsequently moved to set aside the judgment in the undefended trial. That motion was heard before K.K. Anderson D.J. (“the motions Judge”) on February 1st, 2024. The motion was dismissed. Two of the Defendants now appeal both the undefended trial decision and the motion to set aside the undefended trial to this Court.

[3] For the reasons that follow, the Appellants’ appeal is dismissed.

Background

a) The Parties and the Relationship

[4] The Respondent, Gagan Chopra, hired Squeezy Inc. to renovate his basement. The contract was signed on September 22nd, 2017 and the work was to start on September 26th, 2017 and was to be completed by December 12th, 2017. The total price of the contract was $40,000.00. Approximately $14,000 was paid to the account of “Anwar Basement” as a deposit.

[5] The Respondent advised that very little work had been done at all, and that he had lost the money he had paid in the deposit. Work stopped completely on November 6th, 2017.

[6] An action was commenced against Anwar Hamada, Amir Hamada, Squeezy Renovation, Thaer Yousif and Maha Al Hawamdeh. Mr. Yousif was, I understand, the business partner of Anwar Hamada and defended this action. He is not involved in this appeal as I believe he has defended the action. Maha Al Hawamdeh was Anwar Hamada’s girlfriend at the time, and is now his wife. Amir Hamada is Anwar’s brother.

[7] When I refer to the parties, I will use their first names as a number of them share a last name. No disrespect is intended by this. I will refer to them as the Defendants when I am referring to everyone but Mr. Yousif. As will be seen, not all of the Defendants are appellants in this matter.

b) The Litigation History

[8] The claim in this matter was issued on December 1st, 2017. No Statement of Defence was served or filed, so the Defendants were noted in default. A first trial/assessment hearing was held in January of 2018 and an order was granted.

[9] The Defendants then brought a motion to set aside the first trial order on December 27th, 2018. This motion was granted, but the Defendants were required to pay costs for it. A Statement of Defence was served at this point but was never filed.

[10] As a result, a second trial was heard in December of 2019. The Defendants did not attend at the trial and did not file a Defence although one had been served. This led to a second set-aside motion being brought by the Defendants in order to be allowed to continue with this action. This motion was heard on February 5th, 2020. The motion was granted, and the trial was scheduled for March of 2020. The trial date was postponed because of the COVID-19 pandemic.

[11] On November 1st, 2021, the matter came before Deputy Judge Nadler for a trial. The transcript from that date makes it clear that efforts were made to contact the various Defendants before proceeding with the trial. The Court confirmed that the notice in respect of the trial had been sent to the parties and the Registrar attempted to contact them in Court. The Court then converted the matter to an assessment hearing and heard sworn testimony from the Respondent.

[12] The date had also originally been set for November 5th, 2021. The Respondent testified that he had a conversation with the Court Clerk and the Appellants at some point prior to the hearing, and it was agreed that the date would be moved to November 1st, 2021. The Respondent also testified that Anwar, Amir and Maha were all involved in the business, and that they all met with him and told him this fact. He also advised that he had done some research on the business name and could not find any evidence of Squeezy Inc. as a company.

[13] Ultimately, Deputy Judge Nadler granted judgment against the individual Defendants based on the Plaintiff’s evidence that Squeezy Inc. never existed and that they were all involved in the discussions of the renovations with him. This decision was memorialized by way of an endorsement that was issued the same day.

c) The Claims Before Deputy Judge Anderson

[14] This appeal is taken by Maha Al Hawamdeh and Amir Hamada. Anwar takes not part in this appeal. Part of the reason for the appeal is that Maha and Amir both take the position that they had no involvement in Squeezy or in the contract with the Respondent. They now assert that the evidence of the Respondent at the assessment hearing was deliberately fraudulent.

[15] Given this record, a number of issues have been raised on this appeal. I will now set them out.

The Issues

[16] The Notice of Appeal and the factum set out various grounds of appeal. It is useful to group them into the following five categories:

a) The motions Judge erred in her calculation of the time between the undefended trial and when the motion to set aside the order from the undefended trial was brought.

b) The motions Judge failed to consider and properly apply the test for reopening a case to the facts before her.

c) The motions Judge refused to consider the evidence of fraud and/or a frivolous and vexatious litigation approach on the part of the Respondent. The trial Judge also refused and/or failed to consider this evidence.

d) The Appellants raise an issue of bias on the part of the motions Judge.

e) The Appellants state that the motions judge improperly assessed costs against them for the motion in the amount of $400 instead of $100.

[17] I will deal with each issue in turn.

Standard of Review

[18] The governing standard of review is outlined in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 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.

[19] In this case, the Appellants are largely challenging the factual findings of both the motions Judge and the trial Judge. This is particularly true in respect of the claims of both fraud and the allegedly frivolous and vexatious litigation approach that the Appellants argue the Respondent adopted. As a result, to succeed on this appeal, the Appellants must, for the most part, establish the existence of a palpable and overriding error.

[20] The only pure question of law that exists on this appeal was whether the motions Judge ought to have applied the legal test for reopening the evidence on a trial rather than the test for setting aside a default judgment. The applicable standard on that question is correctness.

Issue #1- Is There an Error in the Calculation of Time?

[21] No.

[22] The Appellants point to the motion’s Judge’s statement that “I dismiss the motion because over 2 years have passed since the trial Order and I am not persuaded that the Defendant Anwar Hamada took steps in a timely manner to challenge the trial Order pursuant to Rule 17.04” as the source of the alleged error.

[23] There are two problems with this assertion. First, the motions Judge did not say that the delay in bringing the motion was more than two years. Instead, she observed, correctly, that the trial Order had been entered two years previously.

[24] Second, this delay was not the only reason for the motions Judge’s decision. She went on to say that she was not persuaded that the Appellants had taken timely steps to set the motion aside under Rule 17.04 of the Small Claims Rules. As that rule is relevant to both this issue and the next, it is useful to set it out here:

17.04 (1) A party may make a motion for a new trial within 30 days after a final order is made. O. Reg. 78/06, s. 35.

Transcript

(2) In addition to serving and filing the notice of motion and supporting affidavit (Form 15A) required under rule 15.01, the moving party shall serve and file proof that a request has been made for a transcript of,

(a) the reasons for judgment; and

(b) any other portion of the proceeding that is relevant. O. Reg. 393/09, s. 16 (1).

Service and Filing of Transcript

(3) If available, a copy of the transcript shall, at least three days before the hearing date,

(a) be served on all parties who were served with the original notice of trial; and

(b) be filed, with proof of service. O. Reg. 78/06, s. 35; O. Reg. 393/09, s. 16 (2).

Powers of Court on Motion

(4) On the hearing of the motion, the court may,

(a) if the party demonstrates that a condition referred to in subrule (5) is satisfied,

(i) grant a new trial, or

(ii) pronounce the judgment that ought to have been given at trial and order judgment accordingly; or

(b) dismiss the motion. O. Reg. 78/06, s. 35.

Conditions

(5) The conditions referred to in clause (4) (a) are:

There was a purely arithmetical error in the determination of the amount of damages awarded.
There is relevant evidence that was not available to the party at the time of the original trial and could not reasonably have been expected to be available at that time. O. Reg. 78/06, s. 35.

[25] There is no real dispute that it took the Appellants eight months after they became aware of the trial Judge’s decision to move to set aside that decision. Rule 17.01 requires the motion to set aside the undefended trial to be brought within a month of the decision.

[26] Counsel argued that the delay in bringing the motion was reasonable because of the fact that there was a bankruptcy proceeding and that he needed to get the stay lifted. He advised that this took eight months. There are three problems with this argument:

a) There is no explanation in the Affidavit that was before the motions Judge to support this argument that the proceeding before the bankruptcy court caused the delay. As a result, there would be no basis for the motions Judge to accept this argument. Oral submissions from counsel are not admissible as evidence.

b) The trial Judge dealt with the issue of the bankruptcy proceeding by noting that “there is an order from the Bankruptcy Court dated Nov. 24, 2019 lifting the stay of proceedings.” He goes on to find that he has jurisdiction to deal with the matter and that the only thing that is required is an order from the Bankruptcy court to enforce the judgement. In light of this finding, the explanation of counsel (offered in oral argument) makes no sense, as the Court had already taken jurisdiction.

c) Had the Appellants wanted to rely on the bankruptcy issue to explain the delay in bringing the Rule 17 motion, they ought to have provided evidence in their Affidavit explaining the delay, including what steps they had taken and what orders they had received. That evidence was not before the motions Judge and it is not before this Court either.

[27] In addition, Maha’s Affidavit states that she became aware of this case in 2018 when “the police arrested Anwar about failure to appear in the court in November 2018.” As a result, the evidence before the Deputy Judge makes it clear that she was aware of the claim as far back as 2018. However, no Statement of Defence has ever been served or filed in this matter.

[28] Maha’s Affidavit also advises that a further trial date was set in March of 2020 and did not proceed because of COVID. The new trial date in 2021, she was not informed of because of her counsel failing to tell her of the date, or because her counsel was in the process of getting off the record. The other Affidavits advance this same statement. However, this explains only why the parties did not attend at the November 2021 trial date. It does not explain why it took them eight months after they got the decision before they finally brought the motion to have the decision set aside.

[29] In the result, other than the argument about the Bankruptcy Court, the only arguments that the Appellants made to the motions Judge to set aside the trial Judge’s decision were focused on events that had taken place before the trial Judge’s decision was made. There is no error in the calculation of the time that this matter was outstanding in the motions Judge’s reasons. Indeed, in the transcript, the motions Judge herself states that the delay has been eight months. I now turn to whether she applied the correct legal test.

Issue #2- The Legal Test to be Applied

[30] Counsel for the Appellants argues that this motion involved an undefended trial and not a default judgment. He bases this argument on the Respondent’s claim that he contacted the Appellants to tell them the date of the trial. Since parties who are noted in default are not entitled to participate in a trial, the giving of notice means that there was no default on the part of the Appellants. They simply did not defend the trial.

[31] As a result, counsel for the Appellants argues that the motions judge ought to have applied the line of cases that deals with the reopening of evidence after a trial. In support of this position, counsel directed my attention to the decisions in R. v. S.H. 2019 ONCA 669 and Mele v. Royal Bank, 1994 CarswellOnt 545 (Ont. Gen. Div.). Counsel argues that these cases demonstrate that “the law takes a very liberal approach in reopening civil cases.”

[32] There are two problems with that submission. First, I am not certain that counsel is correct in his view as to how the cases he has cited should be read. The broad discretion that a Court has to modify a judgment exists only until the order is issued and entered. In addition, the judge changing the order must exercise that discretion sparingly. See, for example, the discussion in Pichelli v. Kagalj 2019 ONSC 1371 at paras. 23-26.

[33] Second, in any event, this motion was brought under Rule 17 of the Small Claims Court Rules. Rule 17.04(5) requires that the Court be satisfied that there is either an arithmetical error in the determination of the amount of damages or that relevant evidence that was not available to a party at the time of trial and could not reasonably have been expected to be available. The Rule that the Appellants moved under specifically circumscribes the jurisdiction of the judge.

[34] In her brief reasons, the motions Judge referred specifically to the two criteria under Rule 17.04(5) and concluded that they were not met. I see no error in that decision. The evidence that the Appellants were not involved in the business was available to them long before the decision of the trial Judge was made. Indeed, their Affidavits make reference to seeking to have themselves removed from the action for this very reason. I see no error of law in the test that the motions Judge applied.

[35] In addition to this argument, counsel for the Appellant also asserted that the time period in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. should be considered in determining what a reasonable time period for bringing the motion to set aside the trial Judge’s decision is. Given that this motion was brought within two (2) years of the decision being discovered, the time it took is reasonable and the motion ought to have been granted.

[36] This argument is without merit. To understand why I have reached that conclusion, it is important to understand the difference between the limitations period and the rules. The limitations period in the Limitations Act sets out time limits for initiating a claim and includes discoverability principles. These are general principles relating to starting a claim and involve the balancing of various interests. The Rules (and particularly Rule 17.04) provide a set of rules for adjudicating a claim. Once the claim has been adjudicated, the principle of finality becomes far more important. The Rule provides 30 days as a reasonable time to challenge a final Order and supersedes the Limitations Act.

[37] For the foregoing reasons, I am of the view that the motions Judge correctly decided that the trial Judge’s decision should not be set aside.

Issue #3- The Motions Judge Refused to Properly Consider the Evidence

[38] In essence, the Appellants argue that the motions judge failed to consider two separate claims:

a) That they were not served in 2018 and that the Affidavits of service were fraudulent.

b) That the Respondent made fraudulent representations to the trial Judge that Maha and Amir were involved in Squeezy or otherwise involved in his contract for home renovations.

[39] Both of these arguments can be briefly dealt with. On the first argument, even if a Court accepted that the original Affidavits of Service were not correct (or even fraudulent), any concerns are cured in this case by the setting aside of the original default judgment. In any event, as I have noted at paragraph to come, above, the motions Judge was aware, from Maha’s Affidavit, that she and Amir were aware of this action by November of 2018.

[40] This brings me to the allegations of fraud that are made in respect of the ownership of the company. Counsel points to the decision in Suriano v. Suriano, 1971 CarswellOnt 135, [1972] 1 O.R. 125 for the proposition that an application that there was fraud on the Court is properly made to the trial Court. I accept that proposition.

[41] That being said, however, the claims of fraud do not assist the Appellants. On the issue of the allegedly fraudulent Affidavits of Service, those were cured by the setting aside of the default judgment. The claims of fraud in terms of the Appellant’s lack of involvement in the company should have been raised previously. The evidence to support these assertions was available prior to the undefended trial.

[42] Counsel also argued, both before the motions Judge and this Court, that there was no evidence to support the assertion that either Maha or Amir was involved in the business. That assertion is incorrect. As I have noted above, the Respondent was sworn as a witness and provided viva voce evidence of conversations that he had with both Maha and Amir about the work that was to be done. The Respondent also testified that they told him that they were both involved in the business. The fact that there is no documentary evidence to support the Respondent’s testimony does not mean that there is no evidence. It was open to the trial Judge to accept the evidence of

[43] Counsel made much of the fact that Green D.J. adjourned the motion on October 3rd, 2023, so that the transcripts could be ordered. Counsel argued that this indicated that the transcripts were relevant. Therefore, the motions Judge’s decision not to review those transcripts showed that she had committed a legal error and that she was biased. The problem with this argument is that this motion was brought under Rule 17. That rule contains a requirement that the transcripts “shall” be filed. This is mandatory language. Green D.J. was faced with a case where there was an incomplete record and the transcripts needed to be ordered. Indeed, his endorsement states that the matter is being adjourned “for compliance with section 17.04 of the Rules.”

[44] In addition, I have already explained why the evidence of fraud would not change the outcome of the Appellant’s motion. Those points are equally applicable to this issue. I now turn to the bias argument.

Issue #4- Was the Motions Judge Biased?

[45] In paragraph 87 of his factum, Counsel for the Appellant sets out eleven different facts that he claims support his allegation that the motions judge “was pre-determined pertaining to her decision and had already made up her mind before the start of the hearing of the above said motion.” The argument focuses on the fact that the motions Judge did not refer to the evidence of the Appellants and did not explore whether the Respondent had committed perjury in respect of the allegedly false Affidavits of service.

[46] The test for a reasonable apprehension of bias is whether an informed person, viewing the mater realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly. Wewaykum Indian Band v. Canada 2003 SCC 45, [2003] 2 S.C.R. 259 at para 60, Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394. The standard is a high one to meet. R. v. Grant, 2016 ONCA 639.

[47] I would note that this was a motion and not a trial. The motions Judge will have arrived having read the materials, which included Affidavits from both of the Appellants. The motions Judge had the authority to control the process before her and to determine the scope of the evidence that should be heard.

[48] More specifically, any allegations of perjury on the part of the Respondent would have been irrelevant to the question of whether the trial Judge’s decision should be set aside. The fact remains that on the Appellant’s evidence, the claim came to the attention of the Appellants by no later than November of 2018 and that a Statement of Defence was never filed in this matter. Similarly, as I have discussed above, the Appellants have provided no compelling explanation for the eight month delay in bringing this motion.

[49] In my view, the conduct of the motions Judge does not come close to the type of conduct necessary to infer a reasonable bias on her part. This argument is also rejected.

Issue #5- Did the Motions Judge Err in her Costs assessment?

[50] No.

[51] The motions judge was originally going to order costs in the sum of $100 for the motion. However, after hearing submissions from the Respondent, she awarded costs in the sum of $400.00 instead of $100.00 because of the fact that the motion record was four hundred pages long and there was a great deal of preparation work involved in this appeal. Counsel for the Appellants argues that ‘this is a serious error of law which will set a wrong example for courts…”. I disagree. The motions Judge was simply exercising her discretion to increase the total costs payable on the motion as a result of its complexity and the length of time it had taken to get to trial.

[52] Rule 19.05 limits the costs payable by an unsuccessful party to a successful party who is self-represented to $500.00. The motions judge’s costs is below the limit set out in the Rule. The motions Judge was entitled to exercise her discretion in the manner that she did, and I see no reason to interfere with that exercise of discretion.

Conclusion

[53] For the foregoing reasons, the Appellant’s appeals are dismissed.

[54] This brings me to the costs for this appeal. Counsel for the Appellant advised that his costs outline had already been uploaded to CaseLines. At the conclusion of the hearing, I had directed that the Respondent was to also upload his bill of costs to CaseLine by no later than the end of the day on October 31st, 2024. I can confirm that this had been done.

[55] The parties are encouraged to agree on the costs of this appeal. Failing agreement, the Respondent is to serve, file and upload his costs submissions of no more than two (2) single-spaced pages, exclusive of case-law and offers to settle, within seven (7) calendar days of today’s date.

[56] The Appellants will then have a further seven (7) calendar days to serve, file and upload their costs submissions. Those submissions are also to be no more than two (2) single-spaced pages, exclusive of case-law and offers to settle.

[57] There are to be no reply costs submissions without my leave. There are also to be no extensions to the time limits for costs submissions, even on consent, without my leave. In the event that costs submissions are not served, filed and uploaded in accordance with this timetable, then there shall be no order as to costs.

[58] I also note that the parties are asked to provide my judicial assistant with an electronic copy of their costs submissions. Her e-mail address is available to them, as she has sent them the electronic copy of this decision.

[59] As a final matter in respect of the costs submissions, I would direct the Respondent’s attention to the decisions in Fong v. Chan and Fred Tayar and Associates P.C. , 2019 ONCA 228. These cases set out the principles as to what self-represented litigants are (and are not) entitled to claim as costs. I have provided the parties with the citations for these cases. Cases can be found at: Ontario. It is a free website and will contain other cases on costs.

LEMAY J.

Released: November 4, 2024

CITATION: Hawamdeh v. Chopra, 2024 ONSC 6074

COURT FILE NO.: DC-24-10-00

DATE: 2024 11 04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Maha Al Hawadeh

Amir Hamada

Appellants

and –

Gagan Chopra

Respondent

REASONS FOR JUDGMENT

LEMAY J

Released: November 4, 2024

Hawamdeh v. Chopra, 2024 ONSC 6074

Case Summary

REASONS FOR JUDGMENT

Background

a) The Parties and the Relationship

b) The Litigation History

c) The Claims Before Deputy Judge Anderson

The Issues

Standard of Review

Issue #1- Is There an Error in the Calculation of Time?

Issue #2- The Legal Test to be Applied

Issue #3- The Motions Judge Refused to Properly Consider the Evidence

Issue #4- Was the Motions Judge Biased?

Issue #5- Did the Motions Judge Err in her Costs assessment?

Conclusion

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 2