[1]               The appellant, Arnold Miguel, appeals a judgment of the Small Claims Court in which Deputy Judge Bocci awarded him $127.97 for an overcharge made by the respondent, C.Y. Vehicle Enterprises Inc. (“C.Y.”).  Mr. Miguel claims that the trial judge should have found that this was a deliberate overcharge, although he does not seek additional damages.

[2]               Around March 31, 2017, Mr. Miguel brought his vehicle to C.Y.’s garage for an oil change and tire change. When he got there, Mr. Miguel noticed an advertisement promoting a spring maintenance package for $169.95.  Mr. Miguel asked that his vehicle be serviced in accordance with the package. Once the work was completed, C.Y. charged Mr. Miguel $317.01 instead of the promotion price of $169.95.

[3]               After this issue was brought to the attention of C.Y.’s management, the company acknowledged that it overcharged Mr. Miguel and offered to reimburse him the amount of the overcharge. Mr. Miguel did not accept the payment and instead brought an action against C.Y. in Small Claims Court. Mr. Miguel’s claim alleged that C.Y. made false, misleading and deceptive representations and was thereby in breach of its obligations under the Consumer Protection Act, 2002, S.O. 2002, c. C.30.  Mr. Miguel sought reimbursement for the full amount he paid to C.Y. and $24,000 in punitive damages.

[4]               After hearing the evidence and arguments at trial, in a decision released on October 26, 2018, the Small Claims Court judge found that C.Y. overcharged Mr. Miguel for the services and awarded him $127.97, which was the difference between the amount he paid and the promotion price.  The trial judge did not award any punitive damages, because she found that the overcharge was an error and not intentional. 

[5]               In a subsequent decision released on April 2, 2019, the Small Claims Court awarded costs of $2,000 to C.Y.  The trial judge made this award based on her finding that C.Y. had offered to reimburse the amount of the overcharge prior to trial, and that Mr. Miguel was otherwise unsuccessful at trial, most notably in failing to meet the threshold for an award of punitive damages.

[6]               Mr. Miguel commenced this appeal on May 2, 2019.

[7]               Mr. Miguel essentially challenges the trial judge’s finding of fact that the overcharge was an error, arguing that she should have found that C.Y. engaged in deceptive practices.

[8]               C.Y. argues that Mr. Miguel is out of time for his appeal, and that, in any event, there is no basis for overturning the trial judgment.

[9]               I agree with C.Y. on both issues.

[10]           With respect to the issue of delay, the Rules of Civil Procedure require that an appeal be commenced within 30 days of the trial judgment.  In accordance with Byers (Litigation Guardian of) v. PentexPrint Masters Industries Inc.) (2003), 2003 CanLII 42272 (ON CA), 62 O.R.(3d) 647 (C.A.), at paras. 41-44, the time for commencing an appeal starts to run from the date of the judgment on the merits and not from the date of the costs award. In this case, the Small Claims Court judgment was issued on October 26, 2018 and the appeal was commenced on May 2, 2019. The appeal was therefore brought well beyond the 30-day deadline.

[11]           I also find that Mr. Miguel does not meet the test for an extension of time. As held in Byers, at para. 46, the factors courts are to consider in deciding whether to extend the deadline for an appeal are 1) whether the appellant formed an intention to appeal within the 30-day appeal period, 2) whether the appellant has provided a reasonable explanation for the delay, and 3) whether the justice of the case requires granting the extension.

[12]           There is no affidavit evidence from Mr. Miguel in support of an extension of time.  During the argument, Mr. Miguel candidly said that he did no decide to appeal until he got the costs decision and that he may not have appealed if he had not been required to pay $2,000 in costs to C.Y.  Therefore, there is no evidence that Mr. Miguel intended to appeal the judgment within the 30 days after it was released and the explanation for the delay is unsatisfactory because it highlights that the motivation for the appeal is to defeat the costs award.

[13]           In any event, the justice of the case does not require granting an extension given that the appeal has no merit.

[14]           The standard of review that applies to an appeal from a judgment of the Small Claims Court is the standard established by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33. The judgment will only be reversed if the trial judge made an error of law or a palpable and overriding error of mixed fact and law or of fact alone.

[15]           In this case, Mr. Miguel has not identified any errors of law. Rather, Mr. Miguel seeks to reargue the facts of the case, asking this Court to find that C.Y. deliberately deceived him.  He argues that the evidence should have led the trial judge to infer that Mr. Alexander, C.Y.’s employee, deliberately overcharged him to increase his commission.

[16]           I see no basis for interfering with the trial judge’s findings of fact.  She made a finding that the promotion was intended to start on April 1, 2017, but that the C.Y. employee who posted the promotion had done so on March 31, 2017 because he was going to be off work for a couple of days.  She also found that Mr. Alexander who dealt with Mr. Miguel did not use the code required to bill for the spring maintenance package because there was no code yet. Both employees acknowledged that Mr. Miguel was overcharged but testified that this was an error.  The trial judge accepted this explanation and found that both C.Y.’s witnesses were credible.  The trial judge was in the best position to assess the credibility of the witnesses and her findings of fact are supported by the transcript and the documentary evidence at trial.

[17]           While the trial judge did not refer to the commission Mr. Alexander may have made from the increased amount Mr. Miguel was charged, I find that this was not material given that the commission was only 4% on the labour portion of the bill.  This does not constitute a palpable and overriding error.

[18]           I also note that the appeal has no utility.  Mr. Miguel does not seek more damages, but just a finding that the overcharge was deliberate.  This is an attack on the reasons rather than the judgment and is not a proper ground of appeal.

[19]           I also see no error in the Small Claims Court’s costs award. In awarding costs to C.Y., the trial judge properly considered that C.Y. had offered to reimburse Mr. Miguel for the overcharge prior to trial and that Mr. Miguel was otherwise unsuccessful at trial.  The amount awarded is reasonable.

[20]           For these reasons, the appeal is dismissed.

[21]           I have endorsed the Appellant’s Appeal Book and Compendium as follows: “The appeal is dismissed for oral reasons given today.  Costs to the respondent of the appeal in the amount of $3,500.”