COURT FILE NO.: DV-11-803
DATE: 20120810
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRYSLER FINANCIAL SERVICES CANADA INC. O/A CHRYSLER FINANCIAL
Plaintiff (Appellant)
– and –
MATHEW JAMES MISNER AKA MATTHEW JAMES MISNER, AKA MATTHEW J. MISNER
Defendant (Respondent)
T. Hogan, for the Appellant
The Respondent not appearing
HEARD: April 25, 2012
HEALEY J.
JUDGMENT ON APPEAL
Nature of the Appeal
[1] This is an appeal by Chrysler Financial (the “appellant”) from the Judgment of Deputy Small Claims Court Judge Shaw issued on July 29, 2011, by which she dismissed the appellant’s claim on the basis of the lack of jurisdiction in the Small Claims Court to grant relief under Part V of the Personal Property Security Act, R.S.O. c. P.10 (the “PPSA”).
The Small Claims Court Proceeding
[2] The appellant issued a statement of claim in the Ontario Superior Court of Justice – Barrie Small Claims Court seeking payment of the amount of $7,919.13, representing the deficiency balance (the “claim for payment”) owing by the respondent Misner pursuant to the terms of a Conditional Sales Contract dated September 14, 2007 (the “CSA”).
[3] The facts heard at trial were that the appellant and the respondent entered into the CSA for the financing of the respondent’s purchase of a 2002 Jeep Grand Cherokee, which contained terms setting out the respondent’s payment obligations. The respondent defaulted on the payment obligations and the Jeep was repossessed by the appellant. Although the respondent attempted to pay the arrears owing, his automobile insurance policy had lapsed; the appellant declined acceptance of the payment as it could not release an uninsured vehicle to the respondent. The Jeep was sold at auction and the net proceeds were applied to the respondent's obligations under the CSA, resulting in a deficiency balance of $7,919.13. In April 2010 the appellant delivered the demand for payment of the deficiency to the respondent, who did not respond. The appellant thereafter issued the claim for payment to recover the deficiency.
[4] The respondent filed a statement of defence in the proceeding, admitting a debt of $1,067.63 to the appellant, but disputing the appellant’s claim to the balance of the deficiency.
[5] The matter proceeded to trial on May 26, 2011. The appellant’s claim was dismissed on a without cost basis due to what the Deputy Judge believed was a lack of jurisdiction to grant relief under Part V of the PPSA.
[6] A review of the trial transcript reveals that evidence was given by the appellant to fully support its claim for payment of the deficiency balance.
[7] In contrast, the evidence of the respondent raised no defence to the claim for payment. He admitted being two months behind in payments at the time that the Jeep was seized, and that it had been uninsured for months before the seizure, although not being driven. Both of these delinquencies amounted to defaults under the terms of the CSA, and entitled the appellant to avail itself of any of the remedies set out in clause 14 of the CSA, which included seizure, sale and recovery of all liquidated amounts owing. The respondent did not present any evidence to challenge the payment history or the deficiency accounting.
[8] In his Defence the respondent pled that the fair market value of the vehicle at the time of auction was $7,500. At trial he tendered two pages from the Autotrader’s advertising website for two 2002 Jeep Grand Cherokee vehicles, one being advertised for sale for $8,888 and the other for $12,575, having similar mileage to the repossessed Jeep. These documents were permitted to be entered as exhibit number six. At trial the respondent was then asked for his “opinion” as to what he could have sold it for at the time, and his evidence was:[^1]
Q: So, you testify that if you had the opportunity to sell your vehicle back at this point in time, what you think you could have got on Autotrader.ca or Kijiji, what, what do you think it would've sold for?
A: Well, I did some background checks and I believe the lowest that it would've - the best I could've done would be $9, 500.00, the lowest would've been $7, 800.00…
Q: Okay.
A: … on a quick sale.
Q: On a quick sale.
A: Yes, I believe someone would pick that up in a heartbeat.
[9] The respondent was also asked to give his opinion regarding the comparison of the vehicles shown in the documents compared to the Jeep in question and his testimony was that his vehicle was similar if not better.
[10] The flaw in this testimony is that the respondent should not have been permitted to give opinion testimony regarding the value of any vehicles when he was not qualified as an expert in that area, although this evidence ultimately had no effect given the jurisdictional issue decided by the presiding judge. Additionally, there was evidence provided by the respondent that the Jeep, in terms of options such as leather seats, was not as well equipped as the vehicles shown in the exhibit. Finally, and most importantly, there was no evidence as to the selling price of the vehicles in the exhibit. Although the trial judge did not comment on this evidence in her Reasons, on review of this evidence on appeal this court determines that no weight can be given to the evidence provided by exhibit 6, as it is not a reliable indictor of the value of the Jeep on the date of sale.
[11] The appellant, on the other hand, gave evidence through Mr. John Dawson, a recovery specialist employed by Chrysler Financial, of the Canadian Black Book value of the jeep immediately after possession. He referred the court to the online printout for a 2002 Jeep Grand Cherokee Laredo 4D Utility 4WD, the same model as that owned by the respondent, which showed that the average wholesale price was $5,296, and if the vehicle was “rough,” its value was $3,900.[^2] He testified that the Canadian Black Book is a summary of or an average created from all of the auction activity within Canada. The Jeep in question was sold at auction for $5,200. The remedies under the CSA specifically permit the appellant to sell the vehicle with or without advertisement, at public or private sale, and its terms read "… including sale at a private motor vehicle dealer auction which you acknowledge is a commercially reasonable method of disposition".
[12] In order to successfully defend a deficiency claim with an improvident sale of defence, the debtor must establish both that the secured party departed from the industry norms and that a higher price would have been obtained if the secured party had done what is considered to be reasonable in that particular sector or industry: HSBC Bank of Canada v. Kupritz, 2011 BCSC 788, 88 B.L.R. (4th) 328, at para. 36. In this case the respondent gave no evidence to establish that the appellant failed to take all reasonable steps to obtain the best price for the vehicle by failing to act in a commercially reasonable manner.
[13] While the respondent gave additional testimony regarding conversations that he had with the appellant’s representatives that led him to believe that he could remain two months behind in payments without the vehicle being seized, and of his efforts to regain possession of the vehicle - together with testimony about the pending sale of his home, his financial circumstances and good credit history - none of this evidence supported a valid defence given the admissions made by the respondent as to his breaches of the CSA.
Motion to Introduce New Evidence on this Appeal
[14] The appellant brought a motion at the outset of this appeal for an order permitting the appellant to introduce into evidence for consideration on the appeal a copy of the Notice of Intention to Sell issued by the appellant pursuant to s. 63(4) of the PPSA. It was the position of the appellant that this additional evidence is necessary to permit this court to determine the appeal, both in order to respond to the respondent's allegation that the appellant failed to issue the Notice of Sale, and to provide this court with a full and complete evidentiary record. The motion by the appellant was granted following argument, with written reasons to follow.
[15] The respondent took the position that he had never received written notice that the Jeep was going to be repossessed or sold. This had not been pled by the respondent in his Defence, nor was there even any reference to the Notice of Sale. Without notice to the appellant, the respondent raised the appellant’s alleged failure to deliver the Notice of Sale immediately prior to the start of trial. As a result, the appellant requested an adjournment at the outset of the trial on the basis that the respondent had not raised the appellant’s alleged failure to deliver a Notice of Sale in his Defence. The appellant had not produced the Notice of Sale 30 days prior to the trial dates as required by rule 18.02 of the Small Claims Court Rules, as there had been no prior suggestion by the respondent that this argument would be raised. Nonetheless, the request for an adjournment was denied.
[16] A secured creditor is required by s. 63(4) of the PPSA to issue a Notice of Sale on the debtor and every person who is known by the secured party, not less than 15 days before the date that the notice is served on the debtor, to be an owner of the collateral or an obligator who may owe payment or performance of the obligation secured. The purpose of a Notice of Sale is to notify the debtor of the secured creditor's intention to sell and to provide a debtor with a statement of account and time to organize his or her finances to redeem the collateral that is the subject matter of the Notice of Sale.
[17] At two points in her Reasons the trial judge comments on the denial by the respondent that he received the Notice of Sale, and that in contrast, the appellant’s evidence was that the Notice had been provided. At page 3 of her Reasons she noted that the appellant had not filed a copy of the Notice with the court or attached it to the plaintiff's Claim. Ultimately the decision of the Deputy Judge did not turn on this evidence or lack thereof, but it is important to note that the Notice of Sale was not before the court because the respondent had not previously raised it as an issue in the litigation, and the appellant's request for an adjournment to give it time to place this document before the court was denied.
[18] The test for introducing fresh evidence on appeal was reviewed by Bellamy J. in Dew Point Insulation Systems Inc. v. JV Mechanical Ltd., (2009), 2009 CanLII 71721 (ON SCDC), 259 O.A.C. 179, 2009 CarswellOnt 8064 (Div. Ct.), where at para. 16 he adopted what is referred to as the “Palmer test” as being as an appropriate test to apply in civil matters, it having been adopted by both the Court of Appeal and the Divisional Court in the cases reviewed by him. The Palmer test is a four-part test articulated in R. v. Palmer 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, as follows:
The party seeking to introduce fresh evidence must show that:
the evidence could not through due diligence have been adduced at trial;
the evidence is relevant in that it bears on a decisive or potentially decisive issue;
the evidence is credible; and
the evidence, if believed and taken with the other evidence, could be expected to affect the result.
[19] I find that the appellant is able to meet all four criteria of the Palmer test.
[20] First, the evidence could not have been adduced at trial through due diligence because the respondent gave no prior notice to the appellant that he was challenging the sale on this technical ground, and so the appellant had not included the Notice of Sale in its documentary disclosure in advance of trial. The appellant requested the adjournment at the first opportunity after learning of the position that would be taken by the respondent at trial. Without interfering with the Deputy Judge’s well-established discretion to decide whether an adjournment request ought to be allowed or denied, this motion arises in part out of the need to ensure that procedural fairness is followed, so that each party has an equal opportunity to be heard and be able to respond adequately to the position taken against it. This is necessary to avoid trial by ambush.
[21] Second, the evidence is relevant. Had the trial judge not found that she lacked jurisdiction, it was open to her, without this evidence, to make a finding that the Notice of Sale had not been given. Such a finding would have permitted the trial judge to turn to s.67(1) of the PPSA, which provides for broad remedial powers such as injunctive relief to ensure compliance with Part V, under which Part s.63(4) falls, in addition to any relief available in equity or at common law to cure the procedural unfairness to the respondent caused by the non-compliance with s.63(4).
[22] Third, the evidence is credible. Filed with the appellant's motion is the affidavit of Liza Borges, wherein at paragraph 4 she deposes that the appellant issued its Notice of Intention to Sell pursuant to s. 63(4) of the PPSA in relation to the Jeep on February 4, 2010, and attaching such Notice as exhibit "A," showing also that it was delivered by registered mail.
[23] Last, if this fresh evidence had been accepted it could have affected the result. The Deputy Judge commented on the lack of this evidence. Had the Deputy Judge not dismissed the claim for lack of jurisdiction, without this evidence she could conceivably have dismissed the claim due to the breach of s. 63(4). Also, s. 67(2) of the PPSA provides a remedy against a person defaulting on the duties or obligations imposed by Part V. That section provides:
67(2) Where a person fails to discharge any duties or obligations imposed upon the person by Part V, section 17 or subsection 34 (3) or 35 (4), the person to whom the duty or obligation is owed has a right to recover compensation for any loss or damage suffered because of the failure and which was reasonably foreseeable, and, where the collateral is consumer goods, the debtor has a right to recover in any event an amount equal to the greater of $500 or the actual loss or damages.
[24] By raising this defence, the respondent alleged that he had no notice in advance of the sale, the sale proceeded without him being permitted to redeem the collateral, and accordingly he suffered damages as a result of the appellant’s alleged failure to issue the Notice of Sale. Raising this defence had the potential to affect any damage award that may have been made in favour of the appellant through an off-setting award of compensation to the respondent, if the finding had been made that the Notice of Sale had not been given.
Reasons for Judgment in the Court Below
[25] The Deputy Judge began her Reasons by noting that the PPSA applies to this commercial transaction, because the CSA was a security agreement as defined in s. 1 of that Statute.
[26] She then reviewed Part V of the PPSA, which sets out the procedure for default and remedies, and noted that only s. 46(7) makes specific reference to the Small Claims Court, by providing:
46(7) Where the secured party without reasonable excuse fails to deliver a copy required under subsection (6), the secured party shall pay $500 to the debtor which sum is recoverable in the Small Claims Court.
[27] After noting that other provisions under Part V, by contrast, contained the clause "which sum and damages are recoverable in any court of competent jurisdiction"[^3], she applied the rule of statutory interpretation expressio unius est exclusio alterius to reach the conclusion that the Small Claims Court was not intended to be included in "any court of competent jurisdiction". On page four of her Reasons the Deputy Judge concluded: "Clearly the PPSA did not give jurisdiction to the Small Claims Court to resolve issues under Part V Default - Rights and Remedies of the PPSA". She then went on at page five to state that the court’s jurisdiction to make orders under s. 67 of the PPSA was confined to the Superior Court of Justice, regardless of the monetary value of the claim, and therefore any proceeding to seek a remedy under Part V must be brought in the Superior Court of Justice, and not the Small Claims Court.
[28] The Deputy Judge declined to award costs, citing the uniqueness of the case and the fact that it was outside the jurisdiction of the Small Claims Court, as the factors on which she based her costs decision.
[29] With the greatest respect to the Deputy Judge, I disagree with her analysis of jurisdiction under the PPSA, and allow the appeal for the reasons set out below.
The Law
[30] I conclude that the Deputy Judge erred in interpreting s. 67 of the PPSA as the exclusive mechanism for dispute resolution for any issues arising under ss. 63 to 66 of the PPSA, and further erred in interpreting the reference to the Superior Court of Justice in s. 67 to exclude the Small Claims Court as being a court of competent jurisdiction to adjudicate on compliance with Part V of the PPSA.
[31] Part V of the PPSA is entitled "Default - Rights and Remedies", and applies to those security interests that secure payment or performance of an obligation. The Deputy Judge was correct in characterizing the CSA a as a security agreement to which Part V would apply.
[32] Section 59(1) under Part V provides, to summarize, that where the debtor is in default under a security agreement, the secured party has the rights and remedies provided in the security agreement and the rights and remedies provided in Part V.
[33] Paragraph 14 of the CSA, which provides for remedies upon default, specifically provides that the appellant may "sue you to collect the amounts that you owe under this contract". The CSA, therefore, contains express terms that give the appellant the contractual right to sue for the deficiency, quite apart from any provisions in the PPSA.
[34] In addition to this contractual right, the appellant could also have issued its statement of claim pursuant to the authority provided in s. 64(3) of the PPSA, which provides that unless otherwise agreed in the security agreement, or unless otherwise provided under this or any other Act, the debtor is liable for any deficiency. On page 7 of her Reasons the Deputy Judge wrote: "the plaintiff's claim for the deficiency is part of the defendant's rights set out in section 63 to 66 of the PPSA and pursuant to s. 59 (5) those rights cannot be waived unless otherwise provided for in the Act."
[35] Sections 63 to 66 of the PPSA establish a statutory framework for the disposition of secured collateral and its proceeds. However, there is nothing in those sections which ousts the jurisdiction of the Small Claims Court. Further there is nothing in those provisions that excludes the Small Claims Court from adjudicating on compliance with the statutory framework, or the objective standard of commercial reasonableness followed by the secured party in disposing of the collateral, if raised by a debtor.
[36] The Deputy Judge considered the appellant’s right to sue under the CSA, and cited the following passage from Bank of Montréal v. Charest, (2002) 2002 CanLII 53221 (ON SCDC), 60 O.R. (3d) 562 (Div. Ct.) ["Bank of Montréal"], at para. 39 as authority for her conclusion that the rights conferred on the appellant by s. 63 to 66 of the PPSA cannot be waived or varied:
Further, to base a secured creditor's right to sue for a deficiency, not upon s. 64(3) of the PPSA, but upon a contractual provision which may be inconsistent with the provision of the PPSA is to ignore that s. 59(5) provides, inter alia, that to the extent that ss. 63-66 confer rights on debtors and duties on unsecured creditors, those rights and duties shall not be waived or varied except as provided in the PPSA.
[37] She further cited the lower court ruling in Bank of Montréal v. Charest (2001) 2001 CanLII 28030 (ON SC), 52 O.R. (3d) 497 (S.C.J.), where at para. 42 Cullity J. wrote:
The implicit assumption in Segreto, Featherstone, and Moshi that some contractual rights can be enforced independently of, and without regard to requirements imposed by, the PPSA is arguably not consistent with the relationship the statute, rules of common law and principles of equity that is now mandated by s. 72.
[38] With respect to the Deputy Judge, Bank of Montréal does not stand for the proposition that contractual rights are to be disregarded as a result of the provisions of the PPSA, but simply that the PPSA’s provisions must be complied with unless waived by the parties. The issue in Bank of Montréal was whether the bank was precluded from recovering any deficiency remaining after disposition of the debtors’ assets, when it had not given them notice pursuant to s. 63(4) of the PPSA. Although that same issue was raised by the debtor in this case, this court on appeal has permitted fresh evidence that lays to rest the debtor's objection that he was not given the required notice. Accordingly in this case, unlike Bank of Montréal, the secured party has not taken any steps to enforce its rights under either the CSA or Part V of the PPSA that contravene any of the PPSA’s provisions.
[39] It is further noted that the Divisional Court in Bank of Montréal at paras. 10 and 20 determined that the Bank had a contractual right to sue the debtor for the deficiency, and a prima facie common law right to sue for a deficiency.
[40] The statement of claim in this action is a claim for payment of money that is governed by ss. 23 and 25 of the Courts of Justice Act, R.S.O. 1990, c.43. Section 23 of the Courts of Justice Act states that the Small Claims Court has jurisdiction in any claim for the payment of money where the amount claimed does not exceed the amount prescribed by regulation, currently $25,000. Section 25 of the Courts of Justice Act requires that 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. This claim for payment fell within the monetary limit and therefore was properly brought in the correct court.
[41] The Deputy Judge concluded that the Small Claims Court was barred from assuming jurisdiction of any contractual claim as this would require adjudication on the rights granted to the appellant under Part V of the PPSA, to which the Deputy Judge had concluded that the Small Claims Court had no jurisdiction. On page four of her Reasons the Deputy Judge concluded that the PPSA did not give jurisdiction to the Small Claims Court to resolve issues under Part V. It was her view that this dispute was governed by s.67 of the PPSA and that the reference to the Superior Court of Justice in that section does not include the Small Claims Court.
[42] I conclude that s. 67 does not apply to a claim for payment for collection of the deficiency. Further, I conclude that the words “Superior Court of Justice" in s. 67 includes the Small Claims Court, and therefore any applications made pursuant to s. 67 may be brought in that forum, provided they comply with the monetary limits of that court.
[43] Section 67 of the PPSA authorizes a debtor, creditor, a secured party, an obligor who may owe payment or performance of a secured obligation or any person who has an interest in collateral to bring an application for relief before the Superior Court of Justice. However, s. 67 does not refer to claims for payment of the type that forms the basis of the appellant’s action, wherein the creditor seeks a liquidated sum for the shortfall arising after disposal of the collateral under the terms of a security agreement.
[44] Section 67(1) provides:
Upon application to the Superior Court of Justice by a debtor, a creditor of a debtor, a secured party, an obligor who may owe payment or performance of the obligation secured or any person who has an interest in collateral which may be affected by an order under this section, the court may,
(a) make any order, including binding declarations of right and injunctive relief, that is necessary to ensure compliance with Part V, section 17 or subsection 34 (3) or 35 (4);
(b) give directions to any party regarding the exercise of the party’s rights or the discharge of the party’s obligations under Part V, section 17 or subsection 34 (3) or 35 (4);
(c) make any order necessary to determine questions of priority or entitlement in or to the collateral or its proceeds;
(d) relieve any party from compliance with the requirements of Part V, section 17 or subsection 34 (3) or 35 (4), but only on terms that are just for all parties concerned;
(e) make any order necessary to ensure protection of the interests of any person in the collateral, but only on terms that are just for all parties concerned;
(f) make an order requiring a secured party to make good any default in connection with the secured party’s custody, management or disposition of the collateral of the debtor or to relieve the secured party from any default on such terms as the court considers just, and to confirm any act of the secured party; and
(g) despite subsection 59 (6), if the secured party has taken security in both real and personal property to secure payment or performance of the debtor’s obligation, make any order necessary to enable the secured party to accept both the real and personal property in satisfaction of the obligation secured or to enable the secured party to enforce any of its other remedies against both the real and personal property, including an order requiring notice to be given to certain persons and governing the notice, an order permitting and governing redemption of the real and personal property, and an order requiring the secured party to account to persons with an interest in the real property or personal property for any surplus.
[45] Further, s. 65(1) of the PPSA is evidence that the Legislature did not intend s. 67 to be the exclusive dispute resolution mechanisms for issues arising under Part V of the PPSA. It provides:
65 (1) Where a security agreement secures and indebtedness and the collateral is consumer goods and the debtor has paid at least 60 per cent of the indebtedness secured and has not signed, after default, a statement renouncing or modifying the debtor' s rights under this subsection, the secured party who has taken possession of the collateral shall, within ninety days after taking possession, dispose of or contract to dispose of the collateral under section 63, and, if the secured party fails to do so, the debtor may proceed under section 67 or in an action for damages or loss sustained. [Emphasis added].
[46] Accordingly, s. 65(1) of the PPSA contemplates remedies outside of the Act, by specifically authorizing a debtor with a cause of action to proceed "under section 67 or in an action for damages or loss sustained”.
[47] Finally, the Deputy Judge cited the doctrine expressio unius est exclusio alterius as the rationale for her conclusion that s. 67 of the PPSA does not give jurisdiction to the Small Claims Court to resolve issues or grant remedies under Part V of the PPSA. The doctrine expressio unius est exclusio alterius is a maxim which means the express mention of one thing may be regarded as excluding others: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, at p. 43. The Deputy Judge referred to s. 46(7) of the PPSA as the only provision within the PPSA that specifically refers to the Small Claims Court. That section provides:
46(7) Where the secured party without reasonable excuse fails to deliver a copy required under subsection (6), the secured party shall pay $500 to the debtor which sum is recoverable in the Small Claims Court.
[48] Notably, the amount of the fine referred to in s. 46(7) falls within the monetary jurisdiction of the Small Claims Court.
[49] The Deputy Judge also identified sections 57(2), 56(4), 56(6), and 57(2) as provisions within the PPSA that could give the Small Claims Court jurisdiction as each of those provisions refers to a "court of competent jurisdiction".
[50] This analysis disregards both the provisions of the Courts of Justice Act and the common law.
[51] Section 22(1) of the Courts of Justice Act provides:
22.(1) the Small Claims Court is continued as a branch of the Superior Court of Justice under the name Small Claims Court in English and Cour des petites creances in French.
[52] In Luo v. Canada (Attorney General), (1997), 330 O.R. (3d) 300, 1997 CarswellOnt 1577 (Div. Ct.) it was held that reference to the Superior Court in s. 21(1) of the Crown Liability and Proceedings Act included the Small Claims Court. Similarly, in Laurentide Cabinet Corp. v. Beyond Flooring 2010 ONSC 3609, 2010 CarswellOnt 5553 (Div. Ct.), the Divisional Court held that the Small Claims Court was a branch of the Superior Court of Justice and therefore had authority to adjudicate on a claim arising under s. 52 of the Canadian Trade-marks Act.
[53] As stated by the court in Laurentide, at para. 15:
This is consistent with the purpose of the Small Claims Court to improve access to justice and alleviate the burden on the courts, and on the parties, by enabling parties to bring forward claim, as was done here, in person, quickly and expeditiously and at little cost….
[54] Left unexamined, the ruling of the Deputy Judge would require every litigant in Ontario to attend in the Superior Court of Justice to request relief on any claim or defence that requires adjudication on the procedure or rights established by Part V of the PPSA. Particularly for financing companies, the increased costs associated with proceedings in the Superior Court of Justice, as opposed to the Small Claims Court, will impose a significant financial burden. The increase of monetary jurisdiction from $10,000 to $25,000 was one of the key recommendations made in the Civil Justice Reform Project Findings and Recommendations[^4] report, for the express purpose of permitting a more economic forum for the resolution of disputes having a monetary value of up to $25,000. The ruling of the Deputy Judge, requiring every claim for deficiency to be made in the Superior Court of Justice, is in direct opposition to the rationale for that particular reform,[^5] and is not supported by either the PPSA or the current state of the common law.
Order
[55] Accordingly, the appeal is allowed and judgment shall issue to the appellant in the amount of $7,919.13 plus interest at the rate of 8.78% per annum from April 7, 2010 to the date of this judgment, and post-judgment interest pursuant to the Courts of Justice Act thereafter. The appellant shall also have its costs of the trial and the appeal in an amount to be fixed after written submissions are received from the appellant, if sought, to be submitted within 30 days of the date of these Reasons.
HEALEY J.
Released: August 10, 2012
[^1]: Transcript of the proceedings at trial, page 65, lines 6-13 [^2]: Appeal Book and Compendium, page 57. [^3]: The trial judge specifically referred to ss. 56(4), 56(6) and 57(2). [^4]: Civil Justice Reform Project Findings and Recommendations, Hon. Coulter A. Osborne Q. C., November 2007. [^5]: On January 1, 2010, Ontario Regulation 439/08 made under the Courts of Justice Act amended subsection 1 (1) of the Ontario Regulation 626/00 to increase the Small Claims Court monetary jurisdiction from $10,000-$25,000.