Smith v. Citifinancial Canada Inc., 2001 CarswellOnt 1878.

Ontario Superior Court of Justice

Smith v. Citifinancial Canada Inc.

2001 CarswellOnt 1878

Shirley E. Smith, Appellant and Citifinancial Canada Inc., Respondent

McIsaac J.

Heard: May 8, 2001

Judgment: May 23, 2001

Docket: 57672-01


Counsel: Appellant for herself

Jack R. Armstrong, for Respondent

Subject: Contracts; Property; Civil Practice and Procedure; Evidence



Related Abridgment Classifications

For all relevant Canadian Abridgment Classifications refer to highest level of case via History.





Judges and courts --- Appointment, removal and disqualification of judges — Disqualification for bias — Justices, Magistrates and Provincial Court Judges

Evidence --- Documentary evidence — Business records — Requirement of notice



Table of Authorities


Statutes considered:

Courts of Justice Act, R.S.O. 1990, c. C.43

s. 25 — considered

s. 27 — considered

Evidence Act, R.S.O. 1990, c. E.23

Generally — referred to

s. 35 — referred to

APPEAL by defendant from decision of Small Claims Court judge awarding judgment for plaintiff.


McIsaac J.:


1      This is an appeal from a judgment of Deputy Judge M. Winer of the Small Claims Court at Barrie. The claim was for the purchase of a vacuum cleaner from EXL Systems of Canada which was financed by Associates Financial Services of Canada Ltd. Associates assigned the conditional sales contract to the present plaintiff. The appellant brought two unsuccessful motions to set aside this judgment before she launched this appeal.


2      Ms. Smith advances the following complaints against the trial judge:

• reasonable apprehension of bias;

• errors in relation to the admissibility of evidence; and

• disbelieving the appellant.

She seeks an order setting aside the judgment along with a Notice of Garnishment that has been apparently served on the CIBC.


3      The complaint of reasonable apprehension of bias is premised on three particular circumstances that developed during the trial. The first relates to a comment at the opening of the trial where the trial judge asked the representative of the plaintiff what the claim was about with the following words “there was, I guess, an unpaid account for goods sold and delivered.”

The second incident occurred when the appellant began her evidence and was asked by the trial judge if she ever received the vacuum cleaner in question and she responded that that was not the point. The trial judge interrupted her and told her not to tell the court what the point was.

The last incident occurred when the appellant requested and was apparently refused an adjournment to attempt to locate some form of documentation establishing that the appellant had received notification that her application for credit had been approved.


4      I begin my consideration of this issue by reminding myself of the mandate of s.25 of the Courts of Justice Act:

The Small Claims Court shall hear and determine in a summary way all questions of law and fact and make such order as is considered just and agreeable to good conscience.

Applying that direction to the conduct of this trial, I am far from convinced that the trial judge acted outside the bounds of judicial impartiality either in fact or on the basis of appearances reasonably held. The first two interventions were merely attempts to expedite the focussing of issues and the request for an adjournment was patently unmeritorious given the acknowledgment by the appellant in the Conditional Sales Contract, Exhibit #1, that she had received a copy thereof. I find no merit to this ground of appeal.


5      The appellant’s next complaint relates to the admissibility of documentary evidence which she suggests was governed by the requirements of the Ontario Evidence Act, in particular the notice provisions contained in s.35 relating to business records. However, s.27 of the Courts of Justice Act provides for the admissibility in Small Claims Court proceedings of any relevant evidence, oral, documentary or otherwise without any notice provisions. For this reason, I find no merit to this ground of appeal.


6      The final complaint related to the fact that the trial judge found the appellant to be unworthy of any credit. This is not surprising in light of the initial position that the appellant took that she never received delivery of the vacuum cleaner in question which was later modified to having received one but it was a demonstrator. This misrepresentation of the true state of affairs was a more than sufficient basis to reject the evidence of the appellant. This ground of appeal is totally devoid of merit.


7      For all the reasons, the appeal is dismissed. The parties can arrange for an appointment to address the issue of costs.


Appeal dismissed.


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