) ) ZINOVIY ANDRUKHIV Appellant – v. –, 2017 ONSC 3172

CITATION : Andrukhiv v. Serco Des Inc., 2017 ONSC 3172 DIVISIONAL COURT FILE NO.: 370/16 DATE: 20170523 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) ZINOVIY ANDRUKHIV Appellant – and – SERCO DES INC. and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Respondents ) ) ) ) ) ) ) ) ) ) ) Zinoviy Andrukhiv, Appellant, acting in person Gillian Howe , for the Respondent, Serco DES Inc. Erin Rizok , for the Respondent, Her Majesty the Queen ) HEARD at Toronto: May 23, 2017 MATHESON J. ( Orally ) [ 1 ] The plaintiff appeals from the decision of Deputy Judge Bocci dated June 16, 2016.

The Deputy Judge granted the defendants’ motions to strike out the plaintiff’s claim under Rule 12.02(1) of the Small Claims Court Rules and dismissed another motion, brought by the plaintiff. [ 2 ] This appeal is brought under s. 31(

a) of the Courts of Justice Act . The standard of review is as set out in Housen v Nikolaisen [2002] SCC 33. [ 3 ] Very briefly, the nature of the claim is that after deciding to become a truck driver, the plaintiff did not pass the requisite driver’s test until his fourth attempt. The plaintiff, now the appellant, disputes specific instructions as set out in the Ministry of Transportation of Ontario Truck Handbook. Two specific instructions are disputed.

The claim is for damages in relation to extra expenses incurred to take the test multiple times and lost employment income for the several month period before successfully passing the test. [ 4 ] There were three motions before the Deputy Judge. The first two were the defendants’ motions to strike out the claim under Rule 12.02, and the third motion, the plaintiff’s motion, was to require the defendants to file what was described as reasonable defences and evidence.

There was one other aspect of the plaintiff’s motion that was on consent, changing the name of the defendant to Her Majesty the Queen in Right of Ontario, and that is not a problem on this appeal. [ 5 ] In granting the defendants’ motions, the Deputy Judge made no error of law. She applied the correct principles as set out by the Ontario Court of Appeal in Van de Brande v. Butkowsky (2010), 2010 ONCA 230 (CanLII) , 99 O.R. (3d) 641 (C.A.). Further, the Deputy Judge assumed the facts alleged in the claim to be true and read the claim generously as is appropriate for that type of motion.

Having done so, the Deputy Judge concluded that the claim did not disclose any reasonable cause of action and I find that she made no error in reaching that conclusion. There is no discernable cause of action in the claim even if read generously. [ 6 ] In oral submissions today, the appellant raised, for the first time, the cause of action of negligence. It has not been raised before today, including in the written materials on this appeal. However, the Small Claims Court claim is not capable of being read to assert that cause of action.

This is an appeal and the Deputy Judge did not make an error with respect to the claim that was before her. [ 7 ] Also in oral submissions today, the appellant focused on the issue of public safety. That issue was raised in the written court material for today. The appellant explained that when he identified these two problems with the Handbook he wrote to the Minister of Transportation to draw the two problems to the Minister’s attention. The appellant acknowledged that he heard back from the Minister, but he was not satisfied with the Minister’s response.

He had hoped to get a letter from the Minister indicating an agreement with the two concerns and he did not get that agreement. That process not having worked, he decided to pursue the issue through this Small Claims Court claim. Again, he was disappointed because Her Majesty the Queen, in responding to the claim, decided, as he put it, to defend the lawsuit rather than sending the concerns he had raised to competent people to be looked into.

[ 8 ] In response to the public safety concerns, counsel to Her Majesty the Queen submitted that the appellant picked the right course of action when he wrote the Minister with his concerns. If he was dissatisfied, he had other alternatives outside of the Small Claims Court case, such as contacting his MPP, but these matters were not properly a cause of action as asserted in the claim brought in the Small Claims Court, which is a claim for personal damages.

The appellant, this morning, submitted that he was less concerned about money than he was about public safety and I commend his concern in that regard, but the Deputy Judge did not make an error. [ 9 ] A number of other issues were raised in the written material, all of which I have considered, and I will very briefly go through the main additional issues that were raised by the appellant on his appeal. [ 10 ] The appellant raised new issues about whether the examiners were properly qualified and whether the tests were marked properly.

These issues were not referred to in the claim and do not create a ground to grant this appeal. [ 11 ] The appellant also submitted, in the written submissions, that one of the two defendants improperly raised a floodgates argument before the Deputy Judge. It was not an error to make an argument and in any event the floodgates argument was not relied upon by the Deputy Judge, as shown in her reasons for decision. [ 12 ] The appellant also submitted that the Deputy Judge did not have the special expertise on the technical matters necessary to address the matter before her.

However, the Deputy Judge was required to apply the law and was not required to be an expert on the technical issues. She properly assumed all of the plaintiff’s statements in his claim regarding the technical issues were true. Again, this is not a basis upon which to grant this appeal. [ 13 ] The appellant also submitted that the Deputy Judge failed to understand that the Ministry of Transportation instructions were a matter of policy not law.

The Deputy Judge made no error in this regard and I observe that this submission is inconsistent with the characterization of the claim today as a claim of negligence. [ 14 ] The appellant also criticized the reasons for a decision as inadequate, indicating that he could not tell why the claim was dismissed. The Deputy Judge said the claim did not disclose a cause of action. That reason was given and is why the motions were granted.

Reasons for a decision do not need to be lengthy or include all details, and in the Small Claims Court, they should be viewed in the context of that court’s directive to deal with cases efficiently. I see no reviewable error arising from the nature of the reasons for decision. [ 15 ] As for the plaintiff’s motion, as was the case before the Small Claims Court Deputy Judge, there is no need to address it on this appeal given the dismissal of the plaintiff’s claim. [ 16 ] I therefore dismiss the appeal. [ 17 ] I have endorsed the Appeal Book and Compendium as follows: “Appeal dismissed for reasons given orally.

There shall be no order to costs.” ___________________________ matheson J. Date of Reasons for Judgment: May 23, 2017 Date of Release: May 24, 2017 CITATION : Andrukhiv v. Serco Des Inc., 2017 ONSC 3172 DIVISIONAL COURT FILE NO.: 370/16 DATE: 20170523 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN:

ZINOVIY ANDRUKHIV Appellant – and – SERCO DES INC. and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Respondents ORAL REASONS FOR JUDGMENT MATHESON J . Date of Reasons for Judgment: May 23, 2017 Date of Release: May 24, 2017