2023 ONSC 6758, 2023 ONSC 6758

CITATION: Yuan v. Matsuura, 2023 ONSC 6758 DIVISIONAL COURT FILE NO.: 821/21 DATE: 20231129 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: JINWEN YUAN v. YU-MING MATSUURA BEFORE: D.L. Corbett J.

COUNSEL: Mr Yuan, self-represented Appellant Dillon Shields, for the Respondent HEARD: June 21, 2021 by videoconference; supplementary written submissions received by February 28, 2022 REASONS FOR DECISION[1] [1] By endorsement dated January 4, 2022 (2022 ONSC 45), I requested written submissions from City of Toronto and thenpermitted the parties to make additional written submissions on an issue respecting the Line Fence Act, RSO 1990, c. L.17 (the “LFA” orthe “Act”).

The Appellant argued that the Small Claims Court had no jurisdiction over most aspects of the claim below because they hadto be addressed through the process established by the Act. The respondent argued that the Act does not apply in the City of Toronto. [2] As noted in my prior endorsement, if the Act does apply in Toronto, the jurisdiction of the court to decide boundary fenceissues is, at best, an open question: Levy v. Stoller, , per J.R.

Henderson J. [3] Also as noted in my prior endorsement, the City of Toronto purported to opt out of the LFA pursuant to s.109 of the City ofToronto Act on May 22, 2018 [By-law 641-2018] (Toronto Municipal Code, s. 447-2.1). If Toronto’s opt-out was effective, then theLFA does not apply in this case, and the regular civil courts have jurisdiction over boundary fences. On this basis, the appellant’s firstground of appeal, based on jurisdiction, would fail. However, this could lead to another problem. Principles of apportioning costs ofboundary fences are found in the Act.

If the Act does not apply in Toronto, then it is not clear where legal authority would lie for a courtto order one neighbour to contribute to the costs of a boundary fence constructed by the other neighbour. A third problem emerges whenreviewing the decision below. The trial judge states in her reasons that she considered and applied the LFA. She identifies no other legalbasis for the plaintiff’s claims respecting costs associated with the fence.

All of her damages awards are premised on a justified claimunder the Act. [4] I have now considered the information provided by City of Toronto and the additional submissions made by the parties. Ihave come to the regrettable conclusion that the judgment below must be set aside and the case remitted back to the Small Claims Courtfor a fresh trial. I have set out terms for this fresh trial that include amendment of the pleadings to identify the legal basis on which theclaims are asserted. I wish to be clear that this is a fresh trial on all issues.

Validity of Toronto’s Opt-Out of the LFA [5] In my prior endorsement I stated (at para. 12) that “it is not clear that the City’s opt-out of the LFA is effective.” My reasonsfor this concern are set out in my prior endorsement and need not be repeated here. In its submissions, Toronto notes that it is not a partyto this proceeding, that validity of its by-law should be presumed, and the time in which the validity of this by-law could be challengedhas long passed.

I accept these submissions to the point of concluding that it would not be appropriate for this court to purport to declarethat the opt-out was ineffective. Further, there would be a practical problem with that result in any event: Toronto is not implementingthe LFA in Toronto anymore. The City no longer provides “fence viewers” to decide disputes under the Act.

It would be of no use to theparties in this case to find that the opt-out was ineffective – it had practical effect in that the plaintiff/respondent could not have hadrecourse to the process under the LFA through no fault of her own. [6] On the face of the decision of the trial judge, she decided the case before her on the basis of the LFA. She does not statehow the Act was applied to reach the result that she did.

In the absence of reliance on the principles in the LFA, there is no legal basisidentified for the finding of liability below. [7] I wish to be clear that no one told the trial judge that Toronto had opted out of the Line Fences Act. No one proposed analternative legal theory for liability. The appellant himself based his appeal primarily on failure to adhere to the LFA. [8] The Small Claims Court is a court of equity, and a fair result, based on all the circumstances of the case, is usually a resultthat this court will uphold.

However, the Small Claims Court is also a court of law and there must be some sort of cognizable legal causeof action that grounds a finding of liability. There were facts pleaded and before the court that could have justified findings of liability,however the findings that were made do not justify the judgment. In most cases before the Small Claims Court, it is obvious to areviewing court that the underlying claim is based on a known cause of action, such as breach of contract, defamation, or trespass.

Here,it is just not clear what the cause of action is that was found to have been made out, and it seems most probable that the entire result wasdriven by an application of principles in the Line Fences Act. [9] The City’s submissions state that, in the City’s view, it “has opted out of the Line Fences Act but has not legislated analternative cost apportionment scheme.” It argues that this leaves it to the courts and argues that it does not “leave the courts withoutgoverning principles.” The City develops this argument in its submissions, but not to the point where it is clear to me what the

“governing principles” are. [ 10 ] The respondent argues that the Deputy Judge “simply applied the cost apportionment principles in the Act ” and acknowledged that the City “no longer sends people out to mediate pricing”. I agree that this appears to be what the Deputy Judge did. However, I am unaware of any legal basis on which the cost apportionment scheme in the Act should apply if Toronto has opted out of the Act . [ 11 ] The appeal is allowed. The judgment below is set aside and the matter is remitted to the Small Claims Court for a new trial.

The respondent is directed to deliver an amended claim within 45 days that sets out the legal basis of her claims against the appellant. There shall be no order as to costs of the appeal. November 29, 2023