Mitchell v. 2156645 Ontario Inc., 2012 ONSC 6512
CITATION: Mitchell v. 2156645 Ontario Inc., 2012 ONSC 6512
COURT FILE NO.: DC-19-11
DATE: 2012-11-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Natasha Mitchell Respondent/Plaintiff
– and –
2156645 Ontario Inc. c.o.b. Two Small Men With Big Hearts Moving Company Appellant/Defendant
Self-represented Respondent/Plaintiff
A. Aragao, for the Appellant/Defendant
HEARD: November 5, 2012
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] The defendant appeals from the judgment granted in the Small Claims Court at Cambridge on November 9, 2011, reasons for judgment released on November 13, 2011. Following a trial, the plaintiff was awarded judgment for $22,419.00, prejudgment interest and costs of $725.00.
Background
[2] Ms. Mitchell hired Two Small Men With Big Hearts Moving Company for two related matters in May and June 2009. The first involving moving her personal property from her residence to storage. The second was to deliver the property from storage to her new residence.
[3] A dispute arose regarding payment for the second move. Ms. Mitchell understood the cost would be $500.00. The movers demanded $889.88. When payment in that larger amount could not be provided, the movers placed the property in storage.
[4] Subsequent invoices were for larger amounts. Ms. Mitchell refused to pay more than the quoted amount.
[5] This action was commenced on June 2, 2011. Ms. Mitchell elected to sue for damages, being the value of her property retained by the moving company. She sought $22,510.00. A counterclaim was issued for $6,106.00, storage costs being including. At trial, this was reduced to $1,072.61 by counsel during his final submissions.
Issues
[6] The appellant raises the following issues on appeal:
a) whether the contract for the second move was for a fixed amount of $500.00;
b) whether the appellant had the legal right to demand a specific type of payment;
c) whether the appellant could hold the property until paid;
d) whether the damage award was excessive; and
e) whether the trial judge showed bias against the appellant.
Standard of Review
[7] The standard of review is correctness on a pure question of law and overriding and palpable error on questions or findings of fact. Findings of credibility are entitled to considerable deference. (See Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 (S.C.C.)).
[8] The focus of this appeal primarily pertains to findings of fact, as well as findings of credibility. Hence, the question arises as to whether the trial judge made overriding and palpable errors.
Fixed Price Contract or Estimate
[9] The appellant says only an estimate was provided and when calculating the time required plus taxes, the final amount was $889.88. The respondent’s position is that a fixed price contract required $500.00 to be paid.
[10] The trial judge accepted the evidence of Ms. Mitchell on this issue. In so doing, he reviewed the evidence of the witnesses extensively.
[11] It was open to the trial judge to make a finding of fixed price contract. The appellant simply disagrees. There is no overriding and palpable error.
Manner of Payment
[12] The trial judge also accepted Ms. Mitchell’s evidence as to having the $500.00 cash. The movers refused to accept such as payment in full.
[13] Having regard to the determination on the first issue, there is no need to decide whether the appellant was entitled to payment only by cash or credit card
Holding Property Until Payment
[14] Again, given the first issue, no decision is required as to the appellant’s right to hold the property. It may be that a lien attaches for unpaid invoices; however, when payment is offered in full, namely the $500.00, the movers cannot demand a higher amount. That is the first issue re-stated. It follows, then, that the appellant had no right in this case to store the property.
Damage Award
[15] At trial, Ms. Mitchell presented a list of her property with values for most items. Some items, such as photographs, did not have a stated value.
[16] The trial judge accepted this evidence and that the stated values were “fair and conservative”, totaling $21,810.00.
[17] Ms. Mitchell also claimed the expense of renting certain items, namely $609.00. This was accepted, giving total damages of $22,419.00.
[18] The appellant says this award is excessive. Reference was also made to the evidentiary dispute as to the property placed in storage, a matter the trial judge considered. Mitigation was also raised on appeal and, in particular, that Ms. Mitchell did not sue for return of her property.
[19] Given the appellant’s position on appeal, it is necessary to review the transcript from the trial. The appellant’s trial counsel virtually ignored this issue. His cross-examination of Ms. Mitchell was limited and he said nothing in closing submissions.
[20] It would thus appear the damage amount was conceded, the focus being on liability. Or, as hereafter discussed, it may be that counsel was less than competent. Regardless, I fail to see how the attack on damages can occur on appeal when it was not raised at trial.
[21] In any event, the trial judge reviewed the evidence. I see no overriding and palpable error.
Bias
[22] On this issue, the appellant submits the trial judge:
a) assisted the respondent in entering her exhibits but not appellant’s counsel; and
b) disparaging remarks were made against the moving company.
[23] It must be remembered, this was a Small Claims Court trial. Self-represented parties appear frequently in that court. All trial judges will provide some guidance to such individuals on procedural matters simply to ensure trial fairness and to enable a decision to be made on the merits.
[24] There is no such obligation to assist counsel. Nevertheless, the trial judge did make appropriate suggestions to the appellant’s counsel. Such, however, were ignored.
[25] The appellant, in my view, is attempting to argue its counsel at trial was not competent. Indeed, a review of the transcript is suggestive. However, that is not a ground for appeal. The appellant’s remedy, if available, lies elsewhere.
[26] On the second point, the trial judge did use strong language in describing the appellant’s conduct. Such comments, however, were findings of credibility. Given the initial determination as to a fixed price contract, the appellant’s attempt to obtain a much higher payment attracted the comments or findings made.
[27] I see no error on this issue.
Summary
[28] The appellant has failed to meet the standard for review. In result, the appeal is dismissed and the certificate of stay is set aside.
[29] Ms. Mitchell is entitled to a cost award. I have insufficient information to determine an appropriate amount.
[30] The appropriate method to determine costs is by written submissions as opposed to a costs hearing. I take some comfort in Ms. Mitchell’s ability to present written material, including her factum on this appeal.
[31] Accordingly, I direct Ms. Mitchell to serve brief written submissions, not exceeding three pages, along with any supporting documents. Such is to be done within 21 days from the release of this decision. Mr. Aragao shall serve responding submissions, in like manner, within 14 days after receiving those from Ms. Mitchell. All submissions are to be delivered to the Judges’ Chambers at the Kitchener Court House.
D.J. Gordon J.
Released: November 20, 2012
CITATION: Mitchell v. 2156645 Ontario Inc., 2012 ONSC 6512
COURT FILE NO.: DC-19-11
DATE: 2012-11-20
ONTARIO
SUPERIOR COURT OF JUSTICE
Natasha Mitchell Respondent/Plaintiff
– and –
2156645 Ontario Inc. c.o.b. Two Small Men With Big Hearts Moving Company Appellant/Defendant
REASONS FOR DECISION
D.J. Gordon J.
Released: November 20, 2012
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