JAMES Lafitte Appellant And: Thomas Alfred Marche Respondent, 2019 NLSC 213

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Lafitte v. Marche , 2019 NLSC 213 Date : December 2, 2019 Docket : 201904G0140 Between: JAMES Lafitte Appellant And: Thomas Alfred Marche Respondent Before: Justice Garrett A. Handrigan On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 1418C00040 dated the 10 th day of May, 2019 Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: November 12, 2019

Summary: James Lafitte appealed a default judgment the Small Claims Court made against him for Thomas Marche when he failed to appear for the trial of a claim Mr. Marche brought against Mr. Lafitte for damages. The Court dismissed the appeal. It found that the default judgment was not properly the subject of an appeal but should be challenged, if at all, on an application to set it aside under Rule 20 of the Small Claims Rules . The Court remitted the matter to the Small Claims Court for further consideration. It also ordered Mr. Lafitte to pay $100.00 to Mr.

Marche for his costs by paying it to the Small Claims Court on Mr. Marche’s behalf; and it prohibited Mr. Lafitte from presenting an application under Rule 20 of the Small Claims Rules , if he so chooses, until he has paid that amount.

Appearances: James Lafitte Appearing on his own behalf (by telephone) Thomas Alfred Marche Appearing on his own behalf Authorities Cited: CASES CONSIDERED: Greeley v. Conception Bay South (Town), 2006 NLTD 109 ; Diamond v. Maidment , 2006 NLTD 40 ; Local Service District of Bay St. George South v. Harris , (2014) 356 Nfld. & P.E.I.R. 354, 2014 CarswellNfld 321 (Prov. Ct.) STATUTES CONSIDERED: Small Claims Act , R.S.N.L. 1990, c. S-16 ; Small Claims Regulations , N.L.R. 52/97 ; Judicature Act , R.S.N.L. 1990, c.

J-4 REASONS FOR JUDGMENT Handrigan, J. : INTRODUCTION [ 1 ] In August 2017, James Lafitte sold a house at 16 Crown Avenue in Stephenville, NL to Thomas Alfred Marche. Differences arose between Mr. Lafitte and Mr. Marche leading to closing the transaction. Mr. Lafitte says that Mr. Marche moved into his house prematurely; and Mr. Marche claims that Mr. Lafitte removed items of personal property from the house that were included in the sale; he noted a vacuum cleaner, in particular. [ 2 ] Mr. Marche sued Mr. Lafitte in Small Claims Court. When Mr.

Lafitte failed to appear on a scheduled trial date, the judge allowed Mr. Marche’s claim, gave judgment for Mr. Marche and ordered Mr. Lafitte to pay damages. Mr. Lafitte filed a notice of appeal in this Court on June 6, 2019 from the judgment in Small Claims Court. I heard his appeal on November 12, 2019 and reserved my judgment until now. The Issue [ 3 ] Mr. Lafitte’s appeal raises a preliminary issue, as will appear shortly in these reasons: Is this matter properly before this Court on appeal? The Law Legislation [ 4 ] Section 14 (1) of the Small Claims Act , R.S.N.L. 1990, c. S-16 , provides, that “(

a) party to a proceeding may appeal from a judgment or order of a judge to the Trial Division”. Section 14 (3) says that “(t)he rules of procedure relating to an appeal to the Supreme Court apply with the necessary changes to an appeal under this section”. [ 5 ]

Section 34 of the Judicature Act , R.S.N.L. 1990, c. J-4 sets out what this Court may do on appeals from “…a court of inferior jurisdiction”. In particular, the Act provides in section 34(1) that, this Court: 34. (1) … (

a) may direct the rehearing of witnesses, the retaking of evidence or the taking of further and other evidence by the court of inferior jurisdiction or the tribunal; (

b) may require the report of all evidence taken by the court of inferior jurisdiction or the tribunal; (

c) may require the production and examination of a witness already examined or of persons who have not been already examined; and

(

d) may refer the proceeding back to the court of inferior jurisdiction or the tribunal for further consideration in whole or in part. [ 6 ] The Judicature Act provides, in section 34 (2) that when “…giving a decision or judgment upon an appeal from a court of inferior jurisdiction…”, this Court 34. (2) … (

a) may dismiss the appeal; (

b) may confirm or reverse the decision of the court of inferior jurisdiction or the tribunal; (

c) may alter, amend or modify the decision; (

d) may make an order that appears to be just; and (

e) may make orders as to costs. Case Law [ 7 ] In Greeley v. Conception Bay South (Town) , 2006 NLTD 109 , Halley, J. of this Court considered an appeal from the Small Claims Court. Appellant Donald Greeley sued the Town of Conception Bay South in Small Claims Court for $2,839. A Provincial Court Judge dismissed Mr. Greeley’s claim at a settlement conference in the Small Claims Court when the Judge concluded Mr. Greeley’s claim was “out of time” and statute-barred.

Halley, J. concluded that the Judge “…did not have the power to dismiss the Appellant’s claim without considering the evidence and the arguments of the parties which could only take place during the trial of the action”: Greeley , paragraph 11 . [ 8 ] Halley, J. also noted that “…(t)he object and purpose of a Settlement Conference is to attempt to reach a settlement of as many of the issues as possible with the assistance of a judge of the Court”: Greeley , paragraph 8 .

He remitted the matter to the Small Claims Court “…for a trial in accordance with the Small Claims Act and the Rules made pursuant to the Act ”: Greeley , paragraph 12 . [ 9 ] Fowler, J. of this Court considered s. 34 of the Judicature Act in Diamond v. Maidment , 2006 NLTD 40 . This was an appeal by Scott Diamond against Jackie Maidment from a decision by the Small Claims Court in Happy Valley-Goose Bay. Mr.

Diamond, as Fowler, J. found, did not assert in his notice of appeal that the trial judge had “…erred in law or that he had misdirected himself on the facts or any combination of both”: Diamond , paragraph 3 . As Fowler, J. put it, Mr. Diamond simply noted in his notice of appeal that his grounds of appeal were, “…

(1) More evidence to be given and (2) witness”: Diamond , paragraph 2 . [ 10 ] From inquiries that Fowler, J. made of Mr. Diamond, it simply appeared that Mr. Diamond wished him to hear the evidence of “…a witness who had come with him to [the Small Claims Court at the time of the trial] but had left to babysit her child [before she testified]”: Diamond , paragraph 4 . Fowler, J. invoked the authority he believed he had under s. 34 (1) (

c) of the Judicature Act , to “… require the production and examination…of persons who have not been already examined…”; and he dismissed the appeal after the witness testified before him because “(t)here was nothing convincing in her evidence that would strengthen Mr. Diamond’s position further than set out at trial”: Diamond , paragraph 8 . [ 11 ] This is the law I will apply to this appeal. I turn now to analyze the issue I stated above, starting with the background to it.

Analysis Background [ 12 ] As I noted earlier in these reasons, in August 2017, James Lafitte sold a house at 16 Crown Avenue in Stephenville, NL to Thomas Alfred Marche. Before the transaction closed, Mr. Lafitte gave Mr. Marche a key to the house. Mr. Lafitte says he gave Mr. Marche the key so that Mr. Marche and his wife could go into the house and measure for curtains and take care of related matters preparatory to moving into the property. Mr. Marche acknowledged that he entered the house as permitted.

He says that he moved in some furniture and he also says he disposed of some of the contents of the house including a “trailer load of garbage…, [that I took] to the dump at my expense”: See, Mr. Marche’s statement of claim dated July 5, 2018. [ 13 ] Meanwhile, Mr. Lafitte went back into the house after Mr. Marche had moved his things in and he removed a vacuum cleaner from the home. Mr. Lafitte says that he owns the vacuum cleaner and that it was inoperable at the time. Mr. Lafitte says he intended to repair the vacuum cleaner so it he could use it again.

[ 14 ] Mr. Marche sued Mr. Lafitte in Small Claims Court for $475.84, plus court filing fees and other related charges. Mr. Marche’s claim appears to relate to the vacuum cleaner Mr. Lafitte took as well as to other unspecified costs Mr. Marche may have incurred when Mr. Lafitte entered the house “without my consent”. Mr. Lafitte filed a defence to the claim and a trial was scheduled for 9:30 a.m. on May 10, 2019 at the Provincial Court in Stephenville, NL. Mr. Lafitte failed to attend court for the trial and the trial judge gave judgment against him by default for the full amount of Mr.

Marche’s claim plus interest. [ 15 ] Mr. Lafitte filed his notice of appeal in this matter on June 6, 2019. He acknowledges that he did not appear for the trial date. He claims he mistook the trial date saying “I had written down the date of June instead of May”: See Mr. Lafitte’s Notice of Appeal, paragraph 3. Otherwise, Mr. Lafitte says he has a defence on the merits of Mr. Marche’s claim and he asks that the default judgment be set aside. [ 16 ] In allowing Mr. Marche’s claim the trial judge made these comments: This matter had been set after Settlement Conference.

Both parties were given the date of today’s date, at 9:30. It is now past 9:45. Mr. Lafitte has not appeared. Mr. Marche, the Plaintiff is present. The Court has not heard anything from Mr. Lafitte to indicate that he has been delayed or had difficulty coming today. As a result, the Court infers that from his absence that he does not wish to defend this matter. As a result, the Plaintiff’s claim is allowed.

The amount is set out in the Statement of Claim, plus interest as allowed by the Judgment Interest Act . (Transcript from the Small Claims Court, Page 1, lines 4-10) [ 17 ] The preceding quotation captures the entirety of what happened “at trial”. The trial judge heard no evidence from Mr. Marche about the background to his claim, or about the differences between himself and Mr. Lafitte that lead to the proceedings; nor did the trial judge require Mr. Marche to support the damages that he claimed. The trial judge simply adopted the “…amount as set in the Statement of Claim…”.

Discussion [ 18 ] Rule 13 (9) of the Small Claims Regulations , N.L.R. 52/97 (the “ Rules ”) provides for the possibility that a defendant will not appear for his trial, as Mr. Lafitte did not. Rule 13(9) authorizes the trial judge to “(

a) allow the claim; and (

b) enter judgment or make another appropriate order against that defendant…”. No doubt the trial judge was aware of Rule 13 (9) when he allowed Mr. Marche’s claim and gave judgment for Mr. Marche for the amount of his claim. The trial judge’s decision to grant the default judgment appears to be supported by the Rules ; although I leave to another time my concern that he did not hear from Mr. Marche on both the background to his claim against Mr. Lafitte and the damages Mr. Marche claimed. [ 19 ] Rule 20 of the Rules authorizes a judge of the Small Claims Court to “…cancel a…default judgment if (

a) the…judgment was made without evidence having been taken”: Rule 20 (2) (a). Howe, P.C.J. has considered and applied Rule 20 several times, most recently in Local Service District of Bay St. George South v. Harris , (2014) 356 Nfld. & P.E.I.R. 354, 2014 CarswellNfld 321 (Prov. Ct.) . The Small Claims Court gave judgment by default against Mr. Harris for $770 when he failed to reply to the statement of claim the Local Service District served on him for not paying his service fees for 5 years. Mr. Harris applied under Rule 20 to set aside the default judgment.

Howe, P.C.J. allowed his application and set the judgment aside imposing filing conditions on Mr. Harris. “…I have come to the conclusion that it would not be an unfair exercise of the court’s discretion to set aside the default judgment in this matter…”: Harris, paragraph 20. [ 20 ] Howe, J. also referred to the procedure that applicants claiming relief under Rule 20 must follow. She noted Rule 20 (2), in particular. Howe, P.C.J. said it is not enough that applicants must show “the…judgment was made without evidence being taken”, as Rule 20 (1) provides.

They must also file an affidavit with their application containing: (

i) the reason the party did not file a reply or attend the settlement conference or trial, (ii) the reason for a delay where there has been delay in filing the application, and (iii) the facts that support the claim or the defence”. [ 21 ] Howe, J. was satisfied that Mr. Harris met the criteria. She was also mindful of the impact that setting aside the default judgment would have on the Local Service District: The Court is not unsympathetic to the plight of a plaintiff who, after following all of the required steps to obtain a judgment, finds itself right back at step one through no fault of its own.

For that reason, before concluding that a judgment should be set aside, the court also examines the potential for any non-compensable prejudice to a plaintiff. In this case, the Local Service District has been inconvenienced by the Defendant’s actions and has incurred not only the expense of entering the default judgment but also the cost of having its staff and/or representatives make further appearances at court. There is no prejudice to the Plaintiff’s cause of action; the remedy in such a situation is an order for costs.

If there are, in fact, others who are also intentionally withholding payment of their fees, as was suggested by the Defendant, then the Plaintiff, if successful at trial, will benefit from having a court ruling to support its actions. ( Harris , paragraph 19) [ 22 ] I return now to the issue that I stated earlier: Is this matter properly before this Court as an appeal? My answer to that question is

simply, No. Let me explain. [ 23 ] Appeals authorized by

section 34 of the Judicature Act contemplate an appeal from the record of the Small Claims Court. Thus, section 34 (1) provides for what this Court may do “(o)n an appeal from a tribunal or court of inferior jurisdiction and upon the removal of a proceeding in which evidence has been taken to the court…” (Underlining mine). In the event, this Court may then do as directed in paragraphs 34 (1) (a)-(d). Paragraphs (

a) to (

c) allow this Court to deal with apparent or possible deficiencies in the evidence that was before the trial court. [ 24 ] That is not the case here. There was no evidence before the trial judge in this matter, unlike in Diamond where Fowler, J. found the trial record to be deficient and heard the witness who failed to testify before the trial judge.

This matter aligns more closely with Greeley , in which Halley, J. found “(t)he trial judge did not have the power to dismiss the Appellant’s claim [at a Settlement Conference] without considering the evidence and the arguments of the parties which could only take place during the trial of the action ” (Underlining mine). [ 25 ] I cannot proceed with Mr. Lafitte’s appeal under

section 34 of the Judicature Act . I have only the trial judge’s remarks that I set out earlier in these reasons to consider. His comments do not permit me to do the analysis that

section 34 contemplates. In effect, I cannot, on the record I have from the Small Claims Court assess whether the trial judge acted properly in allowing Mr. Marche’s claim. He had nothing from Mr. Marche to support his claim or to prove his damages. That said, Rule 20 of the Rules is especially suited to the challenge that Mr. Lafitte’s “appeal” poses to the default judgment the trial judge entered against him on Mr. Marche’s claim. [ 26 ] Thus, I dismiss the appeal and remit the matter to the Small Claims Court for possible consideration under Rule 20 . Mr.

Lafitte will have to apply under Rule 19 (6) of the Rules and file an affidavit in which he addresses the three criteria set out in Rule 20(2)(b). Costs [ 27 ] I recognize that sending this matter back to the Small Claims Court will cause further inconvenience to Mr. Marche. He has already been waiting some time for the relief he asked for in the statement of claim he filed in the Small Claims Court on July 5, 2018. Mr. Lafitte’s failure to appear for the trial is the cause of most of that inconvenience. However, when I heard this matter on November 12, 2019, Mr.

Lafitte, who appeared by telephone because poor weather impeded his ability to appear in person, informed me that he is 91 years old. [ 28 ] I take Mr. Lafitte’s advanced years into consideration, but I also take direction from Howe, P.C.J.’s judgment in Harris when she ordered Mr. Harris to pay a modest amount of costs to compensate the Local Service District for its inconvenience. I do the same here. I order that Mr. Lafitte pay $100.00 to Mr. Marche for his costs by paying it to the Small Claims Court on Mr. Marche’s behalf; and Mr.

Lafitte may not proceed with an application under Rule 20 of the Rules , if he so chooses, until he has paid that amount.

Summary and Disposition [ 29 ] James Lafitte appealed a default judgment the Small Claims Court made against him for Thomas Marche when he failed to appear for the trial of a claim Mr. Marche brought against Mr. Lafitte for damages. The Court dismissed the appeal. It found that the default judgment was not properly the subject of an appeal but should be challenged, if at all, on an application to set it aside under Rule 20 of the Rules . [ 30 ] The Court remitted the matter to the Small Claims Court for further consideration. It also ordered Mr. Lafitte to pay $100.00 to Mr.

Marche for his costs by paying it to the Small Claims Court on Mr. Marche’s behalf; and it prohibited Mr. Lafitte from presenting an application under Rule 20 of the Rules , if he so chooses, until he has paid that amount. Order [ 31 ] In the result, I order that: 1) The appeal is dismissed. 2) The matter is remitted to the Small Claims Court for consideration, if at all, under Rule 20 of the Small Claims Rules . 3) James Lafitte pay $100.00 to Thomas Marche for his costs by paying it to the Small Claims Court on Mr. Marche’s behalf. 4) Mr.

Lafitte not present an application under Rule 20 of the Small Claims Rules , if he so chooses, until he has paid the costs into the Small Claims Court. _____________________________ Garrett A. Handrigan Justice