Hnidan v Shpeley, 2012 ABQB 686

Court of Queen ’ s Bench of Alberta Citation: Hnidan v Shpeley, 2012 ABQB 686 Date: 20121105 Docket: 1203 02927 Registry: Edmonton Between: William Hnidan Appellant - and - Lawrence Shpeley Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This is an appeal from the decision of Haymour PCJ, dismissing the Defendant's application to transfer the claim and counterclaim to the Court of Queen's Bench.

Background [ 2 ] Lawrence Shpeley commenced action in Provincial Court against the Defendant, William Hnidan on June 7, 2011 claiming $650.00 being the unpaid balance of welding services performed for the Defendant.

[ 3 ] On June 20, 2011, the Defendant counterclaimed for $8,000.00 alleging deficiencies in the work performed and seeking repair costs and damages. [ 4 ] The trial was set for September 13, 2011. On September 13, the parties appeared before Hope PCJ. The Defendant applied to adjourn the trial.

His application was granted, subject to a number of conditions, including that the new trial be set "no later than March 15, 2012" and that the Defendant "is granted leave to file an amended dispute note and counterclaim no less than 30 days before trial". [ 5 ] The new trial was set for January 26, 2012, by notice dated October 21, 2011.

Following receipt of that notice, the Defendant wrote Provincial Court on November 4, 2011 asking that the January 27 (sic) trial date be cancelled and a new date be set before April, 2012 as the machine which was the subject of the litigation had not yet been repaired and would not be repaired until late December or early January, 2012. [ 6 ] Provincial Court responded on November 8 that Skitsko PCJ had issued a direction: "The order of Sept. 13 was very clear. The matter was to proceed to trial no later than March 15/12. Now, almost two months after the order, he wants a delay. The answer is NO.

Matter to proceed." [ 7 ] The Defendant responded on November 23, essentially requesting that the decision not to reschedule the trial date be reconsidered, failing which he would have to shut down his operations which would affect the amount of his counterclaim.

He advised that the machine rented for $5,000 per month and he wanted to keep the machine working until the end of December as the season would end then, and that the repair costs had been estimated at $6,000. [ 8 ] There was no response to the Defendant following this letter. [ 9 ] On December 24, 2011 (a Saturday), the Defendant faxed Provincial Court with respect to an amended counterclaim he had tried to file by fax the previous day (Friday, December 23), but it had been rejected because the word "Amended" was not on the document.

His December 24 fax included the counterclaim he had tried to file the day before. The counterclaim was for $43,000.00 claiming: a. cost incurred to correct deficiencies in work; b. loss of income during corrections period and costs and time incurred in assisting in having the deficiencies corrected. [ 10 ] On January 6, 2012, the Defendant filed an application returnable on January 17 seeking to: 1. Have the matter transferred to Queen's Bench because his counterclaim exceeded the jurisdiction of Provincial Court; 2.

Alternatively, to delay the trial set for January 25 (sic) until the repairs have been completed; as well as various remedies against the Plaintiff. [ 11 ] The application was heard on January 17. With respect to the application to transfer the matter to the Court of Queen's Bench, Judge Haymour stated, "You need to satisfy the Court that it is not just a number that you put together...You would have had to file a

detailed affidavit outlining all of the particulars of your claim and how you arrived at it so that the -- I can be satisfied that your claim isin excess of $25,000, not merely claiming $25,000 or more. [12] Judge Haymour noted that the Defendant had not complied with the September 13 order. He refused to allow the transfer toQueen's Bench. [13] He did allow the adjournment, on the basis of the Defendant's ill health which was supported by a doctor's letter.

He alsodeemed the dispute note (and counterclaim) fax-filed on December 24 to have been properly filed. [14] The relief sought against the Plaintiff was also denied, although some of the information requested had already been providedby the Plaintiff. [15] The Defendant appeals against the dismissal of his application to transfer the matter to Queen's Bench. Standard of Review [16] The standard of review is generally set out in Housen v. Nikoleison, 2002 SCC 33 , [2002] 2 S.C.R. 235. Here, thedetermination as to whether the correct legal test was applied to the facts is a question of mixed fact and law.

Questions of law aredetermined on the basis of correctness; findings of fact on palpable and overriding error. Where the question is mixed fact and law, andthe question of law cannot be readily extracted from the factual questions, the finding is subject to the more stringent palpable andoverriding error standard: De Shazo v. Nations Energy Co., 2005 ABCA 241. [17] Where the exercise of a discretion is involved, the test (other than for errors of law) is one of reasonableness: Airco AircraftCharters Ltd. v. Edmonton Regional Airports, 2010 ABCA 364 and Baugh v.

Faculty Association of Red Deer College, 2004 ABCA203. [18] In Deacock v. Alberta, 2000 ABCA 122, the Court of Appeal held that reasonableness is hte appropriate standard forreviewing a chambers judge’s exercise of discretion, and I consider that case applicable to a review of a provincial court judge’s exerciseof discretion on a procedural point such as this. Analysis [19]

Section 56 of the Provincial Court Act, RSA 2000 c. P-31, deals with transfers to the Court of Queen's Bench: 56(1) If at any time a claim, counterclaim or defence involves a matter that is beyond the jurisdiction of the Court, the Court may orderthat the matter be transferred to the Court of Queen's Bench.

(2) When an order is made under subsection (1), a clerk of the Provincial Court shall forward to a clerk of the Court of Queen'sBench the record of any evidence in the form in which it was taken, any money paid into the Provincial Court, other than court fees, andall other documents and exhibits in the possession of the Provincial Court pertaining to the matter.

(3) When a matter is transferred into the Court of Queen's Bench, the Court of Queen's Bench may, on any conditions itconsiders proper, (

a) continue the matter to completion, or

(

b) order the matter to be recommenced.

(4) If a matter is transferred into the Court of Queen's Bench and a party had abandoned a portion of the party's claim or counterclaim under

section 9.6(4), that party may, subject to any conditions that the Court of Queen's Bench considers proper, withdraw the abandonment of that portion of the claim or counterclaim and proceed on the entire claim or counterclaim, as the case may be. [ 20 ] It is obvious from the Act that the decision to transfer the action is discretionary. In exercising his discretion, Judge Haymour noted that the $43,000 counterclaim which had been filed by the Defendant contained no breakdown or details as to how that number had been arrived at.

He told the Defendant that the Defendant should have filed an affidavit in support of the amended figure to demonstrate that it was not just a plugged number. [ 21 ] It was clear from the Defendant's representations, and the documents relating to his application, that the machine, which was the subject of the claim and counterclaim, had not yet been repaired, and it had been taken out of service only a month before the end of the season.

There was no substantiation for the quantification of the counterclaim. [ 22 ] In reviewing the exercise of discretion, before interfering with it, I must be satisfied that the judge's decision amounted to an error of law or was unreasonable. I do not have jurisdiction to simply exercise my own discretion if I disagree with the judge's decision. Here, there is nothing unreasonable about the decision.

The judge addressed his mind to the key issue: is the amount of the counterclaim rational or logically supported by the facts alleged in the counterclaim. [ 23 ] His conclusion that the counterclaim did not meet that test is not unreasonable. Indeed, it is the same decision I would make on the same facts or allegations as were before the judge.

There is no air of reality to the magnitude of the counterclaim on the face of the counterclaim itself or in the affidavit relied on for the purposes of the January 17, 2012 application. [ 24 ] While not directly relevant to the appeal, at the hearing of the application before me, the Defendant advised that the machine had still not been repaired. That simply reinforced that there was no substantiated basis for the $43,000 counterclaim.

From the Defendant's correspondence and representations to Provincial Court, the machine was apparently out of service for only a month, such that the potential value of the counterclaim is more likely to be in the range of $11,000 and nowhere near $43,000. [ 25 ] Judge Haymour noted that the Defendant could choose to pursue a larger amount than the Provincial Court limit by commencing a separate proceeding in Queen's Bench. That remains an option for the Defendant. Result [ 26 ] The Defendant's appeal is dismissed.

The Plaintiff has had to attend these proceedings and while self-represented, has been inconvenienced by this meritless appeal. I set his costs in the amount of $150.00 payable forthwith and in any event of the cause. [ 27 ] The Defendant will have to decide before the trial whether to proceed with his counterclaim in Provincial Court to a maximum of $25,000, or to withdraw the counterclaim and commence proceedings in Queen's Bench. [ 28 ] The file should be returned to Provincial Court to set a new trial date. Heard on the 11 th of October, 2012. Dated at Edmonton, Alberta, this 2 nd day of November, 2012.

Robert A. Graesser J.C.Q.B.A. Appearances: William Hnidan, Appellant On his own behalf Lawrence Shpeley, Respondent On his own behalf