Anthony Sacher - v. -, 2018 SKPC 14

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: February 26, 2018 2018 SKPC 014 File: SC#580 of 2017 Location: Saskatoon _____________________________________________________________________________ Between: Anthony Sacher - and - Canadian Hot Rods Inc. Benedict Nussbaum For the Defendant _____________________________________________________________________________ Decision on Jurisdiction Application Q. D.

AGNEW , J _____________________________________________________________________________ [ 1 ] This is a decision on an application by the defendant with respect to this Court’s jurisdiction in this matter. As this Court does not have a formal process for such applications, it was made by way of a letter from the defendant’s solicitors. That letter indicates that it was copied to the plaintiff. This is a normal manner for applications of various types to be made in this Court, given the absence of Rules of Court, chambers applications and the like.

The letter is dated February 20, 2018, although it was received by the Court Clerk’s office on Friday, February 23, and brought to my attention the same date. [ 2 ] This matter came before me originally at a case management conference on February 5, 2018. At that time, the plaintiff

attended in person, and Mr. Nussbaum attended on behalf of the defendant. A decision regarding costs was made at that time, as isreflected in Sacher v Canadian Hot Rods Inc (No. 1), 2018 SKPC 9 , 2018 SKPC 009. At the time of that conference, thedefendant had not filed a Reply. During the course of the conference, Mr. Nussbaum expressed the view that there might be an issuewith the Court’s jurisdiction, referring to a potential question as to where the contract which is subject of this claim was formed. [3] By Mr.

Nussbaum’s letter of February 20, the defendant formally raises takes issue with this Court’s jurisdiction over thismatter, as the defendant is of course entitled to do.

The letter refers to information in the plaintiff’s Statement of Claim and supportingdocuments, and argues that the contract in issue was made in British Columbia, for delivery in Alberta; the argument, therefore, is thatthere is no connection with Saskatchewan other than the residence of the plaintiff, and that this Court accordingly does not havejurisdiction over this dispute. [4] Where any particular event occurred is, of course, a question of fact. Where a contract was formed is a question of law.

Thetwo are obviously often blended: where a contract which was entered into through a series of telephone calls or emails was formed , forexample, is a matter of both fact and law. In such a scenario, findings of fact may well be critical in determining the question ofjurisdiction. [5] Ideally, a plaintiff’s Statement of Claim will disclose facts which show a prima facie case for the Court’s jurisdiction. Indeed, technically perhaps it ought to do so. Technical perfection, however, is not typically required of self-represented litigants inSmall Claims proceedings.

The philosophy of the Small Claims Court has been, from its inception, that litigants who are not legally-trained should be able to come to court and present their cases without the necessity of legal assistance. These concepts find expressionin various of the governing legislation. [6] The Small Claims Act, 2016, SS 2016, c S-50.12, came into force on January 1, 2018. This action was commencedSeptember 7, 2017.

By virtue of s. 58, any action underway as of January 1, 2018 “is to be dealt with as if it had been commencedpursuant to this Act.” In many respects, however, the legislation is the same as its predecessor, The Small Claims Act, 1997, SS 1997 c S-50.11, and the predecessors to that Act. [7] The philosophy of the Act is expressed in a number of sections.

Section 6 requires the Court Clerk to assist plaintiffs inpreparation of their claim. The judge who decides whether to issue the claim may refuse to do so on the basis, inter alia, that “it is not inthe interest of one or more of the parties to proceed with the claim” (s. 7(3)). A trial judge is expressly authorized to question witnessesor the parties themselves “to ensure that the facts, and the case of each party, are fully before the court” (s. 31(a)). Although the Courthas significant power to award costs, the Court is explicitly not empowered to award “lawyer-related costs” (s. 36(1), (2) and (3)).

Access to justice is a factor which the Court is expressly required to take into account in making certain cost-related decisions (s. 36(3)(a)). There is an explicit recognition that procedures under the Act may well be somewhat informal (s. 52). [8] As stated above, ideally a plaintiff’s claim would provide a prima facie case for jurisdiction. It is difficult to see, however,that such a technical requirement can be made to fit with the Act’s emphasis on untrained litigants representing themselves.

Issues ofconflicts of laws, and where contracts are entered into, are difficult enough for courts and seasoned litigators to navigate; to demand thata person who is not legally trained demonstrate a prima facie case for jurisdiction, where any such conversation would likely have tobegin with a definition of both “prima facie” and “jurisdiction”, seems unrealistic. [9] This is not to say that an issuing judge cannot refuse to issue a summons on such a basis; indeed, there might well besituations in which that would be appropriate.

The defendant has cited, for example, In re Funk, 2003 SKPC 150 [Funk], 242 Sask R 78. The Court declined to issue two summonses: the first against an Ontario tow truck operator arising out of an Ontario accident, and thesecond against a corporation in British Columbia and its general manager in Winnipeg. The Court indicated (para. 2) that there wasnothing to indicate any connection with Saskatchewan other than that the proposed plaintiff resided here. The Court concluded that(para. 3), “there must be something in the proposed claim or other material . . . which supports a conclusion that (

a) a Saskatchewancourt is the most convenient forum to hear the case, or (

b) that the proposed defendants can be said to have a real and substantialconnection with Saskatchewan.” [10] I agree that an issuing judge has discretion to refuse to issue a summons on the basis outlined by my brother Halderman Jabove. I would not go so far as to say that it is a requirement. I note that in both of the cases he was deciding, it was not that there was atotal lack of information as to jurisdiction; rather, there was information which actively suggested a lack of jurisdiction.

In the case ofthe tow truck operator, for example, it appears that the information before the Court showed that the proposed defendant was in Ontario,and that the claim involved alleged negligence which occurred in Ontario. [11] In the case before me, on the other hand, the Statement of Claim is silent as to geography, other than to say that the plaintiffresides in Saskatchewan and the defendant is a British Columbia corporation which carries on business in “British Columbia,Saskatchewan and Western Canada”.

The documentation filed along with the Claim seems to indicate that there were a number ofemails and texts between the parties relative to the contract and delivery, as well as after. It appears that various repairs were performedin Saskatchewan. [12] Rather than enunciating the test as strongly as Halderman J did in Funk, I would state instead that the Court may decline toissue a summons where the material indicates a prima facie case against jurisdiction, or require a re-drafting to show jurisdiction.

Evenso, I emphasize that the question of whether or not to issue the claim is discretionary: given how fact-dependant the analysis can be, anissuing judge might well decide that the matter should go to trial, to allow evidence to be heard and the question of jurisdiction to bedecided on a proper factual foundation instead of a matter of “gotcha” against a litigant who does not know the intricacies of pleadings orof conflicts of laws.

[ 13 ] The defendant has also cited in support of its application the decision of Rothery J in Kvaerner U.S. Inc. v Liberty Mutual Insurance Company , 2001 SKQB 315 , 209 Sask R 229. That case, however, effectively argues against the defendant’s position. Although Justice Rothery goes into detail on the question of jurisdiction, it is clear that she does so on the basis of a clear evidentiary record: see para. 13 regarding affidavits, and paras. 14, 15, 16, 19, 20 and 21 regarding the evidence before the Court.

There is no such evidentiary record before this Court, nor is there any provision in the Act for such a process short of trial. A battle of affidavits and the hearing of an interim application again seems to go against the philosophy of the Act , not to mention the processes set out (or, in this case, not set out) in the Act . [ 14 ] The latter point raises another issue with the defendant’s application: there does not appear to be any process short of trial in the Act to allow the Court to adjudicate on this issue.

It is not clear that the Court has the power to divide actions in the manner which such an application would require: see Saskatchewan Government Insurance v Williams , 2011 SKCA 66 , 371 Sask R 305. [ 15 ] The defendant is understandably concerned not to be seen as attorning to the jurisdiction of the Court by filing a Reply. I see no reason, either as a matter of law or practicality, why the defendant cannot file a Reply in which it raises the issue of jurisdiction and, if it considers it appropriate, goes on to raise any other defences in the alternative.

Such a process would preserve the defendant’s jurisdiction argument, while putting before the Court all issues between the parties. The question of jurisdiction could then be decided at trial on the basis of a full evidentiary record. [ 16 ] The defendant also requested that my order regarding costs in this matter be extended by 30 days to allow the Court to consider this application. I am prepared instead to allow a further three days, that being the length of time between when the application was received and this decision was rendered.

I note that the letter making this application was dated February 20, but did not make its way to the Court Clerk’s office until February 23; that apparent lack of urgency does not give me any reason to grant any further time than the length the matter was in my hands. ______________________________ Q. D. Agnew, J