2017 ONSC 6142, 2017 ONSC 6142

CITATION : 1794279 Ontario Limited v. Nissan Canada Finance, 2017 ONSC 6142 DIVISIONAL COURT FILE NO.: 213/17 DATE: 20171013 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: 1794279 ONTARIO LIMITED , Plaintiff/Respondent AND: NISSAN CANADA FINANCE , Defendant/Appellant BEFORE: SPIES J. COUNSEL: Eldar Babayev , for the Plaintiff/Respondent Gregory W. Bowden , for the Defendant/Appellant HEARD at Toronto: October 13, 2017 ENDORSEMENT [ 1 ] It is very unfortunate that this motion brought by Nissan Canada Finance (“Nissan”) was necessary.

By reasons for decision dated April 27, 2017, Deputy Judge Levine of the Toronto Small Claims Court granted the plaintiff judgment against Nissan in the amount of $15,594, with costs reserved. Counsel for Nissan served a Notice of Appeal to this Court on May 2, 2017 and ordered a transcript of the evidence the same day. [ 2 ] Counsel for the parties agreed to costs and counsel for the plaintiff advised the Deputy Judge of this by email on May 16, 2017. They are still waiting for the costs’ endorsement from the Deputy Judge. As costs are not being appealed that should not hold up the appeal.

The transcript was received on June 12, 2017 and so by my calculation the time to perfect the appeal was until August 11, 2017. The appeal however has not been perfected yet given this motion was brought. [ 3 ] As a step in perfecting the appeal, Mr. Bowden, counsel for Nissan, requested that a certificate of judgment be issued by the Small Claims Court. That is a form provided for by Rule 20.04 of the Small Claims Court Rules and applies when a party is seeking to enforce an order that is in default.

The Rule provides that an “affidavit for enforcement” stating the amount owing is needed in order to obtain such a certificate. There is no other provision in the Rules that provides for taking out a formal judgment or order as one would do in the Superior Court. [ 4 ] Mr. Bowden explained that he believed a certificate of judgment was necessary because of Rule 61.10(1)(

c) of the Rules of Civil Procedure which requires the filing of a copy of the order or decision appealed from as signed and entered. Pursuant to Rule 61.10(1)(

d) as copy of the reasons are also to be required. At the same time that costs were agreed to, Mr. Bowden asked Mr. Babayev by email to obtain a certificate of judgment and he stated in his email that he would need it for his appeal book. Mr. Babayev did not respond to that request and Mr. Bowden did not follow up with him at that time. However Mr.

Bowden did attempt to obtain such a certificate and on June 30, 2017 he was advised that an affidavit for enforcement was needed before a certificate of judgment would be issued by the court. [ 5 ] There is no evidence that this issue of a certificate of judgment was pursued until an email Mr. Bowden sent Mr. Babayev on August 8, 2017, just a few days before the expiry of the time to perfect. At that time he advised Mr. Babayev that he did not have a certificate of judgment and wanted to perfect the appeal without it but this would require an order. He asked Mr. Babayev to consent to an order. The next day Mr.

Babayev advised that he did not have instructions to consent to which Mr. Bowden responded that if he needed to move for an extension of time and had to do it on an opposed basis, he would seek costs. [ 6 ] Mr. Babayev did inquire of Mr. Bowden why the certificate of judgment was not issued and Mr. Bowden advised that the court refused to issue one. That is not accurate as he was advised that the court needed an affidavit of enforcement which was required by Rule 20.04(1) of the Small Claims Court Rules. Mr. Bowden also advised Mr.

Babayev that there would be another attempt to get a certificate of judgment but that he had been told that the court could take quite a while before issuing one. There is no evidence that a further attempt was made. Counsel then agreed that this motion would be heard on October 13, 2017. [ 7 ] In response to this motion the plaintiff filed an affidavit of an articling student from Mr. Babayev’s firm. She deposed that she was advised by someone from Small Claims Court that to obtain a certificate of judgment three copies of an affidavit for enforcement would be needed.

This appears to be the same information that Mr. Bowden received and is consistent with the Rule. The law clerk also called the Divisional Court and was told that all that was needed to perfect the appeal was a signed order from the Small Claims Court. The person she spoke to did not know what a certificate of judgment is. I must confess that I was also unaware of what this document is until I reviewed the Rules of the Small Claims Court.

[ 8 ] At the hearing of this motion Mr. Bowden advised it did not occur to him to call the Divisional Court for advice as he felt certain that he needed a certificate of judgment. He advised that his client Nissan is normally a respondent on an appeal and that he had not had the experience as an appellant before in these circumstances. He submitted that he acted reasonably, that the plaintiff was unreasonable in refusing to consent and that he should receive costs of this motion on a substantial indemnity basis.

He acknowledged that he had not asked for an extension of time to perfect the appeal but asked that I grant it if necessary. He also asked for leave to file an amended notice of appeal with one additional ground asserting that the Deputy Judge erred in law in concluding that the plaintiff complied with the provisions of the Consumer Protection Act . [ 9 ] Based on Mr. Babayev’s submissions, it appears that the reason he did not get instructions to consent to an order permitting Mr.

Bowden to file his appeal book without a certificate of judgment is that his client is upset that Nissan took the position that the plaintiff missed a deadline to file a lien under the Repair and Storage Liens Act . That appears to have been the main defence asserted by Nissan. As I pointed out to Mr. Babayev, even assuming he needed instructions at all, which in my view he did not, comparing the expiry of a lien to the request that had been made of his client was not reasonable. [ 10 ] Mr. Babayev also suggested that this motion was a tactic by Mr. Bowden to extend the time to perfect his appeal. Although Mr.

Bowden moved diligently to bring the appeal, there was a considerable lapse of time in his dealing with the certificate of judgment that he felt he needed and so whether it was intentional or not, there may be some truth to that submission. It does appear however, that Mr. Bowden came to the conclusion he needed a certificate of judgment before the time to perfect the appeal expired. I also agree with him that that was a reasonable

interpretation of Rule 61.10(1)(c). [ 11 ] In advance of the motion being argued I called the Registrar of the Divisional Court and was given the same advice that Mr. Babayev’s law clerk was. I appreciate however, that that does not answer Mr. Bowden’s concern about complying with Rule 61.10(1)(c).

I have not had any experience with this issue arising before but to the extent it does arise from time to time, in my view in the circumstances of a case like this the reasons for decision signed by the Deputy Judge granting the plaintiff judgment and quantifying the amount of that judgment is all that is required given there is no chance of an appeal from costs. That document complies with both requirements of Rule 61.10(1) (

c) and (

d) in the one document. It is the decision signed and issued by the Small Claims Court and it contains the reasons of the Deputy Judge. [ 12 ] I have no hesitation in granting the relief sought in this case. As for the amended notice of appeal, Mr. Babayev really had no objection save he argued that this showed that Mr. Bowden was in fact not ready to perfect the appeal as he had stated. [ 13 ] The only difficult issue in my mind in this case is how to deal with costs. Mr.

Bowden submitted a costs outline and on a full indemnity basis he has incurred costs in the amount of $2,786 all-inclusive and on a partial indemnity basis costs of $1,932. Mr. Babayev did not submit a costs outline. He submitted that Nissan used this issue as a delay tactic and did not act reasonably and that for those reasons there should be no costs ordered. He asked that if I did order costs that they be fixed but payable only to the party who ultimately succeeds on the appeal. [ 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 20 th , 2017 to perfect its appeal. 4. There shall be no order as to costs. ___________________________ SPIES J. Date: October 13, 2017