Ann Marie Downey - v. -, 2017 SKPC 101

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: December 21, 2017 2017 SKPC 101 File: SC#661 OF 2016 Location: Saskatoon _____________________________________________________________________________ Between: Ann Marie Downey - and - Leo Savoy o/a Savoy Construction Ann Downey and Greg Mepham For the Plaintiff/Respondent Miles Waghray (Cuelenaere and Co.) and Leo Savoy For the Defendant/Applicant _____________________________________________________________________________ FIAT, S. 37 HEARING R.D.

JACKSON , J _____________________________________________________________________________ [ 1 ] The parties attended initially for case management April 17, 2017. At issue were the allegations of Ms. Downey relating to a renovation project on her home concerning poor workmanship as well as improper invoicing by the defendant, Leo Savoy. All such allegations were denied by the defendant in his Dispute Note filed in these proceedings. [ 2 ] As no resolution was achieved, a second case management was set for June 29, 2017 at 1:30 p.m., however had to be

subsequently rescheduled due to unavailability of the judge. Court notices were forwarded to each party for the new date of September 21, 2017 at 2:00 p.m. [ 3 ] Two other similar actions were also concurrently ongoing between the parties regarding separate properties - one in Small Claims and the other in the Court of Queen’s Bench. [ 4 ] On June 22, 2017 and July 24, 2017 the parties met at a four way meeting with counsel in an attempt to resolve the Court of Queen’s Bench action only. [ 5 ] On September 21 the plaintiff and her representative, Mr. Mepham, attended for the re-scheduled case management.

No one appeared for the defendant and Default Judgment was awarded accordingly in the claim amount of $10,036.19 plus costs of $147.92. [ 6 ] Both Mr. Savoy and his counsel, Mr. Waghray, recalled discussion at the July 24 meeting of adjourning the within action sine die in order to achieve potential global settlement on all outstanding claims between the parties. This is the reason cited by Mr. Savoy for he and his counsel’s failure to attend the September 21 case management which is the subject matter of this application. [ 7 ] Neither Ms. Downey nor Mr. Mepham remembered any such discussion. Further, Mr.

Savoy and Mr. Waghray acknowledged there were no subsequent meetings scheduled after July 24 nor had any follow up discussions taken place leading up to the September 21 date. Mr. Waghray pointed out however that Mr.

Savoy had attended for the initial case management as well as the two settlement meetings and had filed a Dispute Note in this action raising several triable issues. [ 8 ] With some reservation, the Court is prepared to extend the benefit of the doubt to the defendant that some confusion may have arisen due to the multiplicity of actions. [ 9 ] Accordingly, the Default Judgment obtained on September 21, 2017 shall be conditionally set aside on the following terms:

a) the defendant shall pay thrown-away costs to the plaintiff for her attendance September 21 in the amount of $250.00 on or before January 15, 2018;

b) the defendant shall pay into Court the claim amount awarded of $10,036.19 on or before March 15, 2018, such funds to be held in trust pending the outcome of the case management conference and trial, if required [1] ;

c) in the event that either of the within payment time lines as set out above are not met, to be verified by sworn affidavit evidence from the plaintiff, the application to set aside is dismissed and the Default Judgment remains in full force and effect. [ 10 ] By agreement, and assuming compliance herein, the case management shall proceed on March 22, 2018 at 2:00 p.m. If a trial is required thereafter, the date of July 17, 2018, commencing at 9:30 a.m. has been pre-selected by the parties. _____________________________ R.D. Jackson, J

[1] See Stealth Web Designs Inc. v Melanie Wildman, 2012 SKPC 73 , 2012 SKPC 073