) ) STONEFOREST INTERNATIONAL CANADA INC. Plaintiff (Appellant) – v. –, 2010 ONSC 6566

CITATION : Stoneforest International Canada Inc. v. Chan, 2010 ONSC 6566 DIVISIONAL COURT FILE NO.: 592/09 DATE: 20101126 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HERMAN J. BETWEEN: ) ) STONEFOREST INTERNATIONAL CANADA INC. Plaintiff (Appellant) – and – EVAN YANAGI CHAN and 1467481 ONTARIO INC. Defendants (Respondents) )) )) )) )) ))))) Xiaoyu Li , Shareholder and Officer of the Appellant Company Peter P. Chang , for the Respondents ) ) ) HEARD at Toronto: November 26, 2010 HERMAN J. (ORALLY) [ 1 ] The appellant, Ms.

Li, appeals from the judgment of Deputy Judge Seevaratnam dated November 18, 2009 in which the appellant was awarded $536.55, plus costs in the amount of $175.00. [ 2 ] The background of this case is that the respondent agreed to purchase fabric from the appellant. The parties agreed at trial that the respondent returned two-thirds of the fabric. However, the respondent also claimed that she sent other material back to the appellant in addition to the two-thirds of the fabric.

The parties also disagreed as to whether the fabric was deficient. [ 3 ] The trial judge indicated that based on the evidence before her, it was difficult to tell how much fabric was sent back. The trial judge relied on an exhibit that had sketches of dresses with measurements. The respondent estimated that she used 42.9 metres of fabric and returned the rest. The trial judge multiplied 42.9 metres by $19.50 per metre and arrived at the amount of $836.55.

The trial judge then reduced that amount by $300 because she found that the appellant was protesting outside the respondent’s shops. [ 4 ] An appeal of a Small Claims Court decision is not a retrial. The standard of review of a trial judge is correctness on law and palpable and overriding errors on facts. One of the reasons for the lower standard on matters of fact is that the trial judge is in the best position to make factual findings and assess credibility. [ 5 ] The appellant claims that the trial judge made seven errors. I will deal with each in turn. (

i) The trial judge did not deal with the appellant’s claim that the respondent had made fraudulent representations as to the name of her company

[ 6 ] The trial judge said she would not deal with this issue of fraud because it was beyond her jurisdiction. The appellant claims that she suffered damages as a result of the misrepresentation because she originally brought a claim against the wrong party. That action was dismissed because it was in the wrong name and the appellant incurred costs.

A judge in another trial has therefore dealt with the issue of what the proper name of the party was and has also dealt with the issue of costs. [ 7 ] The trial judge in the action under consideration in this appeal did not err therefore in determining that it was her task to deal with the contract issues, not to deal with the issue of misrepresentation as to the company name. (ii) The trial judge erred because there were no defects in the fabrics [ 8 ] This is a matter of factual findings and determinations of credibility. The judge’s findings are owed deference.

I am unable to find an overriding and palpable error on this point. (iii) The trial judge was wrong to only provide compensation for 40 metres [ 9 ] The trial judge indicated that it was difficult to determine the amount of fabric that was returned. She decided to rely on sketches of dresses which show how much fabric the respondent used. In the opinion of the trial judge, this was the best evidence that she had upon which to base her decision. The trial judge was in the best position to assess the evidence and make findings of fact.

I see no evidence of a palpable and overriding error in her decision to rely on the sketches in determining how much fabric was returned. (iv) The judge did not grant costs to the appellant for the interpreter fee [ 10 ] There is nothing at the end of the transcript which indicates that the appellant sought the interpreter fee in costs. However, the appellant says that she made the claim during the course of her submissions on the trial and that these submissions were not transcribed.

The time to make a claim for costs would have been at the end of the trial after the judge issued her decision and when she was dealing with the matter of costs. [ 11 ] The appellant did raise another costs issue at that time but did not raise the claim for costs related to the interpreter. I therefore cannot find an error in the judge’s failure to grant an interpreter’s fee since it was not claimed at the time that the trial judge was dealing with the matter of costs. (

v) The judge only granted prejudgment interest from November 2007, not from 2003, the date of the contract [ 12 ] The granting of prejudgment interest is within the discretion of the Court. I see no reason to interfere with the judge’s exercise of her discretion on this point.

It would have been difficult to determine when the cause of action arose given the confusing evidence before the trial judge in this case. (vi) The trial judge did not award costs to reflect a costs order of $50.00 that had been made at a pre-trial conference [ 13 ] The trial judge did not err when she limited her costs order to the costs of the trial before her. (vii) The judge ignored the appellant when she discussed the timing of a lunch break with counsel for the respondent and when the trial judge said that the lunch break will be a half hour but she took an hour [ 14 ] It is unfortunate that Ms.

Li feels that the trial judge ignored her. However, I have reviewed the transcript and see no evidence that she did so. The matter of when to take a lunch break and how long the lunch break is, is a matter that is totally within the trial judge’s discretion. It had no impact on the overall fairness of the proceedings nor on the judge’s reasons for her decision. [ 15 ] I conclude that the appellant has not demonstrated that the trial judge made errors in law or palpable and overriding errors in findings of fact. The appeal is therefore dismissed.

COSTS [ 16 ] The respondent claims $7,000 in costs on a substantial indemnity basis. He submits that costs on a substantial indemnity basis are warranted because the appeal was frivolous and vexatious. In my opinion, the circumstances do not warrant costs on this basis but instead will be granted on a partial indemnity basis. Furthermore, the amount of time that is reflected in the Bill of Costs is, in my opinion, excessive.

All of the issues in this appeal were fully canvassed at the time of the trial and the appeal did not raise any difficult issues which would have required a lot of work to deal with. [ 17 ] In the circumstances, it is my opinion that a costs award to the respondent of $2,500, inclusive, is warranted and it is so ordered. HERMAN J.

Date of Reasons for Judgment: November 26, 2010 Date of Release: December 8, 2010 CITATION : Stoneforest International Canada Inc. v. Chan, 2010 ONSC 6566 DIVISIONAL COURT FILE NO.: 592/09 DATE: 20101126 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HERMAN J. BETWEEN: STONEFOREST INTERNATIONAL CANADA INC. Plaintiff (Appellant) – and – EVAN YANAGI CHAN and 1467481 ONTARIO INC. Defendants (Respondents) ORAL REASONS FOR JUDGMENT HERMAN J. Date of Reasons for Judgment: November 26, 2010 Date of Release: December 8, 2010