Montgomery Fleet Services Inc. v. Corlies, (2016) 346 O.A.C. 51 (DC)

• Judge: Tausendfreund, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: February 16, 2016
• Jurisdiction: Ontario
• Citations: (2016), 346 O.A.C. 51 (DC);2016 ONSC 1223

Montgomery Fleet v. Corlies (2016), 346 O.A.C. 51 (DC)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. FE.028

Montgomery Fleet Services Inc. (plaintiff/respondent) v. Bill Corlies c.o.b. as TYS Logistics (defendant/appellant)

(DC-14-0003-00; 2016 ONSC 1223)

Indexed As: Montgomery Fleet Services Inc. v. Corlies

Court of Ontario

Superior Court of Justice

Divisional Court

Tausendfreund, J.

February 19, 2016.

Summary:

The plaintiff commenced a small claims action against the defendant personally for money owing on mechanical services to several transport trucks said to be owned by a corporation. The defendant was the corporation's president and directing mind. At the start of the trial, the self-represented defendant requested an adjournment as a non-subpoenaed anticipated witness was on vacation and was not available to testify. The Deputy Judge refused to grant the adjournment. During the cross-examination of the plaintiff, the defendant sought to rely on two documents. The plaintiff objected as the two documents had not been previously disclosed as required by the Rules of the Small Claims Court. The Deputy Judge refused to mark the invoices as exhibits at that time and stated that he would consider the matter when it was the defendant's turn to give evidence, if the defendant still felt it necessary to admit the documents. The defendant testified, but made no further reference to the two documents.

The Ontario Small Claims Court granted judgment in favour of the plaintiff. The defendant appealed.

The Ontario Divisional Court, per Tausendfreund, J., allowed the appeal and ordered a new trial. The defendant did not have the opportunity to fully advance his case because of his failure to address obligations expected of him. The court should have put to the defendant the option of an adjournment on terms. The failure to have done so was an error in principle.

Practice - Topic 8

General principles and definitions - Effect of noncompliance with rules - At the start of the trial in a small claims action, the self-represented defendant requested an adjournment as a non-subpoenaed anticipated witness was on vacation and was unavailable to testify - The Deputy Judge refused the request as the defendant had failed to give prior notice and take steps to secure the witness's attendance - During the cross-examination of the plaintiff, the defendant sought to rely on two documents - The plaintiff objected as the two documents had not been previously disclosed as required by the Rules of the Small Claims Court - The Deputy Judge refused to mark the invoices as exhibits at that time and stated that he would consider the matter when it was the defendant's turn to give evidence, if the defendant still felt it necessary to admit the documents - The defendant testified, but made no further reference to the two documents - The Deputy Judge granted the plaintiff judgment - The Ontario Divisional Court, per Tausendfreund, J., allowed the defendant's appeal and ordered new a trial - The defendant did not have the opportunity to fully advance his case because of his failure to address obligations expected of him - In the face of the defendant's expressed request for an adjournment and his implied request to admit the documents, the court should have put to the defendant the option of an adjournment on terms - That was so, whether the defendant was represented by counsel or not - The court's failure to have done so was an error in principle.

Practice - Topic 4562.1

Discovery - Production and inspection of documents - General - Effect of failure to produce (incl. inadmissibility) - [See Practice - Topic 8 ].

Practice - Topic 5074

Conduct of trial - Adjournments - To permit compliance with rules of court - [See Practice - Topic 8 ].

Practice - Topic 9752.1

Small claims - Hearing procedure - [See Practice - Topic 8 ].

Practice - Topic 9766

Small claims - Evidence - [See Practice - Topic 8 ].

Cases Noticed:

Iannarella v. Corbett et al. (2015), 331 O.A.C. 21 (C.A.), appld. [para. 12].

Ariston Realty Corp. v. Elcarim Inc. et al., [2007] O.T.C. Uned. 602 (Sup. Ct.), refd to. [para. 20].

Rocca Dickson Andreis Inc. et al. v. Andreis, [2013] O.A.C. Uned. 634; 2013 ONSC 5508 (Div. Ct.), refd to. [para. 21].

Counsel:

Scott McMahon, for the plaintiff;

Robert J. Reynolds, for the defendant.

This appeal was heard on February 16, 2016, by Tausendfreund, J., of the Ontario Divisional Court, who released the following judgment on February 19, 2016.