) ) ALAN LESLIE HAINES, also known as F.A.S. Plaintiff (Respondent) – v. –, 2017 ONSC 3257

CITATION : Haines v. David, 2017 ONSC 3257 DIVISIONAL COURT FILE NO.: 014/17 DATE: 20170525 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) ALAN LESLIE HAINES, also known as F.A.S. Plaintiff (Respondent) – and – MOSHE TOMI THOMAS DAVID a.k.a. TOMI, a.k.a. TOM Defendant(Appellant) ) ) ) ) ) ) ) ) ) ) Adam Jarvis , for the Plaintiff (Respondent) Tom David, for the Defendant (Appellant) ) ) HEARD at Toronto: May 25, 2017 MATHESON J. ( Orally ) [ 1 ] This is an appeal from the Order of Deputy Judge De Lucia in the Small Claims Court dated December 15, 2016.

The Deputy Judge granted the plaintiff’s motion for an order that the parties had not settled the claim. The defendant appeals that order of the Deputy Judge. [ 2 ] The underlying claim is an action for non-payment. The plaintiff sued the defendant for non-payment with respect to certain furnace related-equipment that was claimed to have been delivered by the plaintiff to the defendant and not paid for. In response to that claim, the defendant put forward a number of defences.

This appeal arises from a disputed settlement of that claim. [ 3 ] There is no question that the parties embarked on settlement discussions, which progressed far enough that plaintiff’s counsel informed the court office that the action was settled.

However, as events unfolded, the plaintiff came to the conclusion that there was actually no settlement and then brought the motion for an order to that effect. [ 4 ] The plaintiff’s motion was successful before the Deputy Judge who concluded that the parties were not ad idem, that is, they had no meeting of the minds with respect to the purported settlement. [ 5 ] The defendant, a former lawyer, is not suggesting that he did not know what ad idem meant. However, he submits that the Deputy Judge erred in reaching that conclusion. [ 6 ] The parties agree on the standard of review.

The appellant must show a palpable and overriding error and there is no dispute about the meaning of that test as set out in the respondent’s factum at paras. 32-34. I need not repeat it here. The issue before me is whether the appellant can establish a palpable and overriding error with respect to the Deputy Judge’s finding that there was not settlement. [ 7 ] I will not go through the background facts in great detail.

In short, there were settlement negotiations commencing in about July 2016, and as things progressed there was a form of release exchanged, which included certain terms of settlement and contemplated requiring the agreement of not just the parties but also third parties. That document was never fully executed, although I do not regard that as determinative of either the motion below or the appeal today. [ 8 ] There was certainly evidence that there was agreement with respect with respect to certain terms, however, there was also evidence about other aspects of the settlement which were not agreed.

I will not go through all of the terms that the respondent has raised in that regard. I need only deal with one of them. [ 9 ] There was evidence before the Deputy Judge with respect to the question of whether or not payment should be made before or after the defendant received certain documents and was satisfied with them; that is, whether the approval of certain documents was

predicated on the receipt of the funds or not. There was evidence in the record that this was a significant issue for the parties that arose late in their negotiation. After that issue arose, the motion was brought by the plaintiff. [ 10 ] On this appeal, the question is not whether or not there was evidence in support of the appellant’s position before the Deputy Judge.

The question is whether the Deputy Judge made a palpable and overriding error finding that there was no settlement. [ 11 ] I conclude that there was an evidentiary basis for the decision of the Deputy Judge that there was not agreement on a material term. There was a disputed matter and it was of significance, or at least there was evidence based upon which that conclusion could be reached.

I also note that the Deputy Judge is entitled to deference in this area. [ 12 ] I therefore conclude that the appellant has not demonstrated that the Deputy Judge made a palpable and overriding error with respect to what he described as the sole issue on the appeal. [ 13 ] Now I wish to also address briefly two other issues that were raised in the appellant’s factum but were not the subject of oral argument this morning. Very briefly, in his factum the appellant also submitted that the reasons for decision of the Deputy Judge were inadequate.

I find that the reasons for decision, although brief, were sufficient bearing in mind the efficiency expected of the Small Claims Court. Reasons do not need to be lengthy or include great detail and it has been found that, in particular, Small Claims Court reasons must be viewed in the context of its directive to deal with cases efficiently. [ 14 ] The other matter raised in the factum was that the effect of the decision of the Deputy Judge was to deprive the defendant of the right to defend the claim on the basis of the settlement.

That is the effect of losing the motion before the Deputy Judge but there is no error in that regard. It is simply the consequence of the loss of the motion. [ 15 ] The appeal is therefore dismissed. [ 16 ] I have endorsed the Appeal Book and Compendium as follows: “Appeal dismissed for reasons given orally. With respect to costs, I am addressing both costs of this appeal, which there is no dispute should be in favour of the respondent (only the amount is disputed), and the costs of a motion brought by the plaintiff to stay, which ultimately went on consent.

Bearing in mind all factors, I order that the appellant pay the respondent $2,500 – an amount which has been reduced to address the plaintiff’s motion to stay.” ___________________________ MATHESON J. Date of Reasons for Judgment: May 25, 2017 Date of Release: May 29, 2017 CITATION : Haines v. David, 2017 ONSC 3257 DIVISIONAL COURT FILE NO.: 014/17 DATE: 20170525 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN:

ALAN LESLIE HAINES, also known as F.A.S. Plaintiff (Respondent) – and – MOSHE TOMI THOMAS DAVID a.k.a. TOMI, a.k.a. TOM Defendant(Appellant) ORAL REASONS FOR JUDGMENT MATHESON J . Date of Reasons for Judgment: May 25, 2017 Date of Release: May 29, 2017