Small Claims Court Appeals

Procedural Issues

1794279 Ontario Limited v. Nissan Canada Finance, 2017 ONSC 6142 (CanLII)

[14] I have concluded that there should be no order as to costs. Although Mr. Bowden’s conclusion that a certificate of judgment was necessary was reasonable, he did not act diligently in following up with the Small Claims Court to obtain one. In the evidence before me it appears that he could have obtained one by simply filing an affidavit for enforcement. He also could have followed up with the Registrar of this Court to see if there was a way to perfect his appeal without this document. Although I agree that Mr. Babayev’s client acted unreasonably in not consenting to an order, had Mr. Bowden been more diligent, the motion would likely not have been needed. Accordingly, I make no order as to costs.

[15] For these reasons my order is as follows:

1. Pursuant to Rule 61.09(4) the defendant/appellant is permitted to perfect its appeal by filing an appeal book that only contains a copy of the signed reasons for decision as issued by the Small Claims Court. To be clear, a certificate of judgment is not required to perfect the appeal.

2. The defendant/appellant is also permitted to serve and file the amended notice of appeal as provided to me during the course of the hearing.

3. The defendant/appellant shall have until Friday, October 20th, 2017 to perfect its appeal.

4. There shall be no order as to costs.

Rule 61.09:
(4) If it is necessary to do so in the interest of justice, a judge of the appellate court may give special directions and vary the rules governing the appeal book and compendium, the exhibit book, the transcript of evidence and the appellant’s factum.

Jurisdiction - Appeal

Courts of Justice Act, R.S.O. 1990, c. C.43

31 An appeal lies to the Divisional Court from a final order of the Small Claims Court in an action,

(a) for the payment of money in excess of the prescribed amount, excluding costs; or

(b) for the recovery of possession of personal property exceeding the prescribed amount in value.

Jurisdiction on Appeal and Judicial Review

Stamm Investments Limited v Ryan, 2016 ONSC 6293 (CanLII)

[14] It is true that the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) does not preclude judicial review from decisions of judges of the Small Claims Court. A Small Claims Court judge derives jurisdiction from a statute (the CJA), and exercises a statutory power of decision. By virtue of s. 2 of the JRPA, the Divisional Court has the power to grant relief in relation to jurisdictional errors and errors of law on the face of the record made by Small Claims Court judges. This Court has confirmed that power on at least three occasions (see, Peck v. Residential Property Management Inc., (2009) O.J. No. 3064, Pardar v. McKoy, 2011 ONSC 2549 (CanLII), [2011] O.J. No. 2092 and R. v. Casalese, [1981] O.J. No. 1332.)

[19] With this background in mind, I turn to the decision of the motions judge. He obviously erred in stating that there is no “judicial review” of the judgment of the Small Claims Court. There is, but it is rarely available. He also erred in stating that an appeal was available to a single judge, having regard to the amount of the claim. In fact, Rule 68.01(2) contemplates that applications for judicial review will ordinarily be transferred without an order. But in the unusual circumstances of this case, Parayeski J. was correct in refusing to transfer the matter to Hamilton. This is clearly a case that should not occupy the time of a panel of this court a second time. The judicial review at issue is nothing more than a disguised appeal in a situation where the legislature has denied any such right to the moving party. It cries out for the Court to exercise its discretion to decline relief. It was appropriate for the motions judge to deny the applicant the opportunity to take up the court’s time with a frivolous application, and it is incumbent on us to do the same.

Standard of Review

Ashrafi v. Carraro, 2019 ONSC 6326 (CanLII)

[18] At pages 1112 to 1116 of Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 3d ed (Toronto: LexisNexis Canada 2017) the learned authors set out principles governing standards of review in appellate matters.

[19] The appellate standard of review where the ground of appeal is that the trial judge erred in law is correctness. In contrast the standard of review for findings of fact is that the error must be a “palpable and overriding error”, meaning plain to see and affecting the result.

[20] Errors of mixed fact and law, where the question of legal principle is not readily extricable, are subject to the test of palpable and overriding error.

[21] The learned authors additionally note at para. 12.225 of The Law of Civil Procedure in Ontario, 3d ed, supra:

Other than standard form contracts, the exercise of applying the principles of contractual interpretation is a question of mixed fact and law because contracts are to be interpreted in a …[factual] matrix; however, the standard of appellate review for standard form contracts is the correctness standard for issues of law.

In Kean v. Popert, 2019 ONSC 6410 (CanLII) at paragraph 17 the court states:

"An appeal from a final order of the Small Claims Court lies to a single judge of the Divisional Court where the amount is in excess of $2,500. The amount in this matter is $25,000, and therefore I have jurisdiction to hear this appeal: see ss. 19(1)(a), 19(1.2)(a) and 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43.".

It is the appellant's position that on an appeal, the appellate court has the following powers, as set out in s. 134(1) of the Courts of Justice Act:

Unless otherwise provided, a court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;

(b) order a new trial;

(c) make any other order or decision that is considered just.

Edelenbos v. Bandula, 2015 ONSC 354 (CanLII)

[14] The standard of review of a judge’s decision was canvassed in Litwinenko v. Beaver Lumber Co., (2008) O.J. No. 2133. Divisional Court Justice S. Greer, stated at paras. 9 and 10:

[9] The standard of review of the Judge’s decision in the Appeal before us was set out by the Supreme Court of Canada in Housen v. Nikolaisen (2002), 2011 D.L.R. (4th) 577. On a question of law, the test is a matter of correctness, in which case the appellate court is free to replace the opinion of a trial judge with its own.

[10] On issues involving findings of fact, a judge is not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”, as set out in Stein v. The Ship “Kathy K”, 1975 CanLII 146 (SCC), (1976) 2 S.C.R. 802. Further, if a judge has considered all of the evidence that the law requires him or her to consider and still comes to the wrong conclusion, this amounts to an error of mixed fact and law and is subject to a more stringent standard of review than that of palpable and overriding error.

Nicolou v. McLennan & Associates, 2013 ONSC 1622 (CanLII)

[6] The authorities are clear that I cannot overturn the decision of the Small Claims Court judge unless at least one of two situations exist:

1. Findings of fact are not to be reversed unless the trial judge made a “palpable and overriding error”, or

2. The trial judge erred in law.

[7] In Clarksburg Contractors Ltd. v. Saks, [2012] O.J. No. 4115 (S.C.J.), Quinlan J. sets out the standard of review that the Divisional Court undertakes in appeals from Small Claims courts proceedings:

21 Before dealing with the standard of appellate review, it should be borne in mind that the trial at first instance was a Small Claims Court trial. The Courts of Justice Act provides the following overarching comments concerning proceedings in the Small Claims Court:

"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.

22 Housen v. Nikolaisen provides guidance on the standard of review for findings of fact by judges. As the court stated:

The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a "palpable and overriding error".

23 The Supreme Court quoted the comments of Laskin J.A. in Gottardo Properties (Dome) Inc. v. Toronto (City):

Deference is desirable for several reasons: to limit the number and length of appeals, to promote the autonomy and integrity of the trial ... proceedings on which substantial resources have been expended, to preserve the confidence of litigants in those proceedings, to recognize the competence of the trial judge ... and to reduce needless duplication of judicial effort with no corresponding improvement in the quality of justice.

24 It is well-established that the test to be applied on the review of a deputy judge's decision is as follows:

a) the standard of review for findings of fact and inferences of fact is such that they cannot be reversed unless the trial judge has made a palpable and overriding error; and

b) the standard of review on pure questions of law is one of correctness.

Grounds for Appeal

Sufficiency of Reasons

Edelenbos v. Bandula, 2015 ONSC 354 (CanLII)

Sufficiency of Reasons

[15] The Supreme Court of Canada addressed the issue of sufficiency of reasons in R. v. Shepherd, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869. As Binnie J. stated at para. 55 (i):

The delivery of reasoned decisions is inherent in the judge’s role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large.

Misapprehended the Evidence, Fundamental and Palpable Error

Frith v. Cable Bridge Enterprises Limited, 2013 ONSC 6436 (CanLII)

[17] The standard of review for decisions in the Small Claims Court is determined by the principles outlined by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33 (CanLii) (CanLII), [2002] SCR 235. On a pure question of law, the standard of review is that of correctness. The standard of review for findings of fact are mixed fact and law are reviewable only for palpable and overriding error.

Failure to Exercise Discretion

C.B. Distribution Ltd. (Bankruptcy), Re, 2004 CanLII 24874 (ON SC)

In Poskitt v. Poskitt and Bishop 1949 CanLII 221 (BC CA), (1949) 3 D.L.R. 798 (B.C. C.A.) the court said, on the subject of discretion but in a context other than bankruptcy, at p. 812:

A discretion means that at least two proper judicial decisions are open to the Judge. It does not mean that if he acts contrary to common sense and justice, that his mere doing so, in itself is an exercise of discretion. When this happens it is not a mistake in the exercise of discretion in its proper sense as judicial choice between two judicial decisions, a defensible exercise of discretion, but it is in truth a failure to exercise discretion at all. The discretion must be exercised judicially according to common sense and justice, and in a manner which does not occasion a miscarriage of justice, and see Murdoch v. A.-G. B.C.,1939 CanLII 418 (BC CA), (1940) 2 D.L.R. 74 at p. 77, 73 Can. C.C. 222 at pp. 225-6. 54 B.C.R. 496 at p. 501; Blunt v. Blunt, [1943] A.C. 517 at p. 527 and Taylor v. Vancouver Gen'l Hospital (1945), 62 B.C.R. 79 at p. 80.

Signal Chemicals Ltd. v. Singh, 2014 ONSC 5228 (CanLII)

[10] The standard of review of an order, whether final or interlocutory, is correctness with respect to questions of law. Where the Master exercises discretion, the Court on appeal must determine whether the correct principles were applied and whether the master misapprehended the evidence such that there is a palpable and overriding error Zeitoun v. The Economical Insurance Group (2008), 2008 CanLII 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.), aff'd 2009 ONCA 415 (CanLII)).

Hasselsjo v. Effort Trust, 2019 ONSC 990 (CanLII)

[21] Even if an appeal is restricted to questions of law, a finding of fact in the absence of reliable evidence or a serious misapprehension of the evidence can constitute an error of law: e.g. Manpel v. Greenwin Property Management.

...

[37] Based on his findings in paragraph 25, 26, 27, and 32-33, the Member accepted and relied on such allegations without an analysis as to whether any or all of that conduct constituted a “substantial” interference, or whether, similar to the Landlord in G.G. v. J.C., it was in the same category as having been refused a quote for insurance which constituted “interference” but not to the degree of “substantial”. Further, the Board observed in paragraph 26 that “one certainly should not be faulted for pursuing legal avenues” but then the Board did just that by inferring, in the absence of evidence, that the Tenant was “abusing legal processes for the purpose of deterring anyone that might assist the Landlord with respect to the pest control efforts.” There is, however, no evidence that anyone was actually deterred by the Tenant’s actions. Any such interference was purely speculative. In the absence of any analysis as to the degree to which the litigation conduct constituted a “substantial” interference, the Board committed an error in law.