Kift v. Ziegler, 2019 NSSM 33

2018 S.C. BW. No. 478511 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Kift v. Ziegler , 2019 NSSM 33 BETWEEN: THOMAS BRUCE KIFT Claimant -and- JUERGEN ZIEGLER Defendant DECISION AND ORDER (ADJOURNMENT REQUEST) Written Submissions: July 15 th and July 16 th , 2019 Appearances: For the Claimant: Thomas Kift, in Person For the Defendant: John M. Dillon, Q.C. and Matthew Conrad

Submissions Received by: Gavin Giles, Q.C., Chief Adjudicator Date of Decision: July 16 th , 2019 Gavin Giles, Q.C., Chief Adjudicator : ( 1 ) This matter is a construction claim. ( 2 ) The Claimant has commenced his action seeking damages for what he has alleged as shoddy or otherwise negligent construction of his new residential dwelling house located at Bridgewater, Nova Scotia. ( 3 ) The Claimant’s claims are denied and defended. The Defendant was the builder of the subject house. ( 4 ) The matter has been before the Court for some long time.

The Claimant’s travel schedules and the availability of counsel to the Defendant have both resulted in adjournments and in general delays in getting the matter on for formal hearing. ( 5 ) There is no point in canvassing in detail the stated reasons for past adjournment requests or their results. It is sufficient to say that for a variety of reasons, attributed to both the Claimant and the Defendant, this matter has not proceeded to formal hearing with alacrity. That is unfortunate, at least.

It is said that “justice delayed is justice denied”. ( 6 ) The matter was scheduled to proceed to formal hearing in Bridgewater, Nova Scotia on Monday through Wednesday, July 22 nd through 24 th . Those hearing dates had been selected and agreed upon by the Claimant and the Defendant upon the latter having sought counsel. In fact, the most recent adjournment was in large measure to permit the Defendant’s chosen counsel to prepare for meaningful participation in the formal hearing. ( 7 ) On Monday, July 15 th , the Court received a written submission from John M. Dillon, Q.C., on behalf of the Defendant. Mr.

Dillon, Q.C.’s submission was short and to the point. His colleague, Kevin A. MacDonald, the Defendant’s counsel, had been injured in a motor vehicle collision on Saturday, July 13 th and would thus be unable to prepare for and participate in the scheduled hearing on July 22 nd through July 24 th . Mr. Dillon, Q.C. did not offer any details. ( 8 ) Though it serves no particular purpose to canvas the Claimant’s written opposition to Mr. Dillon, Q.C.’s adjournment request in detail, the Claimant made the following points: a.

The matter has been outstanding for some time, has been the subject of past adjournments, and really must get on for formal hearing; b. The Defendant had not originally been represented by counsel and counsel were not required in matters before the Court in any event; c. There was sufficient time between July 15 th and July 22 nd to permit alternative counsel selected by the Defendant to prepare and to be ready to represent the Defendant’s interests; d.

The Claimant had arranged for the attendance of witnesses for the formal hearing scheduled on July 22 nd through July 24 th and those witnesses would be inconvenienced if the formal hearing was again adjourned; and e. If, in context, the Defendant could not locate and retain counsel capable of dealing within the compressed time-frame represented, that would be “his tough luck”. ( 9 ) In response, Mr. Dillon, Q.C. reached outside of his, and Mr. MacDonald’s firm, and sought the availability of Matthew Conrad to take over the Defendant’s defence. Mr.

Conrad then weighed-in with a written submission of his own: in general, that the time available would ordinarily be sufficient to permit him to prepare for the matter but that with his own schedule, as it was, he would not have sufficient time. ( 10 ) Included in Mr. Conrad’s stated time constraints was that he was already engaged in other proceedings before the Supreme Court of Nova Scotia which had been scheduled for at least part of Monday, July 22 nd . ( 11 ) The last word on the subject was to the Claimant who maintained his earlier stated position that:

a. The formal hearing should proceed as scheduled; b. Mr. Conrad had confirmed that the time available was sufficient to permit counsel to prepare for the formal hearing; c. And that if neither Mr. MacDonald nor Mr. Conrad were going to be available, the Defendant should seek out and retain eitheravailable counsel or defend himself.

(12) I fear, with great respect, that the Claimant has lost (or missed) the basic purpose of the Court as set out pursuant to theprovisions of

Section 2 of the Small Claims Court Act: It is the intent and purpose of this Act to constitute a court wherein in claims up to but not exceeding the monetary jurisdiction of thecourt are adjudicated in formally and inexpensively but in accordance with the established principles of law and natural justice.

(13) That does not of course mean that procedural rules do not apply to the Court or that adjournments of pending hearingscan be had simply for the asking. But that does mean that the Court must look critically as adjournment requests, weigh them fairly andpermit adjournments when and where justified.

(14) In fairness to the Claimant, Mr. Dillon, Q.C. has not attempted to define the precise nature of Mr. MacDonald’s injuriesand how they have negatively affected his abilities to prepare for and attend the scheduled formal hearing. Mr. Conrad has providedmuch most salient information with respect to his scheduling limitations. I am thus not prepared to consider that Mr. Conrad is otherthan all but “completely booked” and thus could not for practical purposes prepare for and attend the formal hearing. More about otherpossible alternative counsel – as in alternative to both Mr. MacDonald and Mr. Conrad – is set out below.

(15) As for Mr. MacDonald’s limitations, whatever they might be, I would not frankly expect Mr. Dillon, Q.C. to haveprovided much in the way of detail.

(16) First, Mr. Dillon, Q.C. might not have sufficient details to share.

(17) Second, such detail has he might have, might be subject to significant privacy concerns.

(18) Third, I cannot imagine any Adjudicator (or Judge or Justice for that matter) attempting to weigh with nicety the natureof a person’s injuries from the perspective of how they might or might not negatively affect her or his ability to prepare for and attend ona formal hearing. In fact, any such exercise by an Adjudicator (or Judge or Justice) might well fly in the face of the seminal tradition ofcounsel as “officers of the court”.

(19) In other words, I would not, at least for the purposes of the instant case, make deep inquiry into what Mr. MacDonald’sprecise circumstances are. In fact, for me to do so, would no doubt be judged by some, if not many, and with substantial reason, to beoffensive.

(20) The Nova Scotia Court of Appeal (per: Oland, Fichaud and Farrar, JJ.A.) in Moore v. Darlington, 2012 NSCA 68, 2012 N.S.C.A 68 had occasion to consider the law applicable to adjournment requests. Cited with approval was the Court’sown decision (per: Cromwell, J.A.) in Moore v. Economical Mutual Insurance (1999), 1999 NSCA 91 , 177 N.S.R. (2d) 269. There, Cromwell, J.A. set out the parameters and principles to be applied to adjournment requests generally, commencing at Paragraph33: The decision to grant or refuse an adjournment is within the discretion of the presiding judge.

It is a discretion which the judge isparticularly well placed to exercise. An appellate court should not substitute its judgment for that of the presiding judge but should limitits review to determining whether the judge applied a wrong principle or the decision gave rise to an injustice. The appellants were left without counsel on the eve of trial. They decided to change counsel roughly three weeks earlier. They thoughtthat they had obtained the services new counsel to take the matter to trial. Their former counsel thought so too, even after he had a twohour meeting with new counsel.

The trial judge was advised of the change of counsel at a pre-trial conference. New counselsubsequently advised that he would not act and stated in an affidavit that he had only ever agreed to review the matter. After thissurprising turn of events, former counsel did some trial preparation, then advised that he would not act further. All of this to say that thiswas not a situation in which the plaintiffs were manipulating the process for the purposes of delay.

While their decision to changecounsel so close to trial was risky and unwise, it is clear that they and their former counsel thought there was a firm arrangement in placewith new counsel before they discharged former counsel.

The trial judge appears to have accepted as a fact that the plaintiffs thoughtthey had new counsel before they discharged their former counsel and this finding is supported by the submissions made to the trialjudge by their former counsel. … [36] Where the effect of refusing an adjournment is to force the party seeking the adjournment to proceed without counsel, the requiredbalancing must have due regard to the importance of legal representation. While the principles set out by Hallett, J.A. for the Court in R.v.

Beals (1993), 126 N.S.R. (2d) 131 were developed in the different context of a criminal case, I think several of them are highlyrelevant in civil matters. There is certainly no absolute right to counsel in civil cases and efforts to retain and instruct counsel must beexercised honestly and diligently and not for the purposes of delay. The impact of the refusal of an adjournment on the fairness of thetrial process must also be considered having regard, for example, to the complexity of the issues raised.

(21) Thereafter, Cromwell, J.A. went on to criticize the trial judge for his refusal, in the broad context of the case, to order anadjournment. In particular, Cromwell, J.A. noted that the trial judge “did not give sufficient weight to the impact of forcing the plaintiffsto trial without counsel, particularly where he apparently did not think that the plaintiffs had attempted to use their retention of counsel

for the purposes of delay.” ( 22 ) In my view, the facts and circumstances of that case are very much apposite to the facts and circumstances in this case. ( 23 ) There is no indication (or even a sense) that the Defendant is using his counsel’s present circumstances simply to delay the scheduled formal hearing. ( 24 ) There is no indication that Mr. MacDonald is other than truly incapacitated and thus unable to prepare for and attend the scheduled formal hearing. ( 25 ) There is no suggestion that Mr.

Conrad can be available as an alternative, notwithstanding his stated opinion that all things being equal and fair being fair, five days would be sufficient to allow him to prepare. ( 26 ) And there is frankly no onus on Mr. Dillon, Q.C., as Mr. MacDonald’s colleague, to “move heaven and earth” or “beat the bushes” in an effort to find the Defendant alternative counsel. ( 27 ) Perhaps and more to the point, even if Mr. Dillon, Q.C. was to adopt the latterly-stated strategy, it is the middle of the summer. Many counsel are away from their desks.

Even those who are working might generally be perceived as having full schedules. In the circumstances, there is frankly only so much which one in the position of Mr. Dillon, Q.C. could do immediately. I take judicial notice – as the Court’s Chief Adjudicator (and senior practicing lawyer) – of those facts ( 28 ) In terms of the requisite balancing, as adverted to by Farrar, J.A. in Moore (v.

Darlington) , there is little doubt that with the exception of the inconvenience created by delay, delay in-and-of-itself, will not compromise the Claimant’s abilities to put on his case. ( 29 ) There is no indication of any evidence which will be lost. ( 30 ) There is no indication of any witnesses who will not be able to attend in the future. ( 31 ) There is no indication of any diminishment on the part of the Defendant affecting the Claimant’s abilities to recover from him should their claims be ultimately allowed. ( 32 ) I find accordingly that the requisite balancing tips in favour of the adjournment Mr.

Dillon, Q.C. is seeking on behalf of the Defendant. ( 33 ) The final piece of the analysis relates to the so-called “prejudice to the public”. Against this backdrop, it is often said that court, judicial and adjudicative resources are not infinite and that delays in hearing schedules negatively impact them as well.

And though it might generally be that there are those who are clamoring for court and judicial resources being sidelined and sidetracked through their adjournment requests, that is not so much the case in this Court, given its operation on a more-or-less part-time basis with Adjudicators generally available to meet the schedules of the litigants. And so it is in this specific case. ( 34 ) Accordingly, the formal hearing in this matter, which was scheduled for Monday through Wednesday, July 22 nd through 24 th , is hereby adjourned without day. ( 35 ) I further direct that the Claimant and Mr. Dillon, Q.C. (or Mr.

Conrad, or both) consult with each other to arrive at three mutually-convenient times the week of July 22 nd on which they can all be available for a telephone conference. In the course of that telephone conference, I propose to canvass whether it will be Mr. MacDonald, or Mr.

Conrad, or some other counsel who will be representing the Defendant, how much time will be needed before a formal hearing can take place and dates, in the month of August, when both parties and counsel will be available for the formal hearing. ( 36 ) Though I do acknowledge that August is not usually the most ideal month for a formal hearing, I am away much of the month of September and I would not want to wish these proceedings pushed into the fall months. DATED at Halifax, Nova Scotia, on July 16 th , 2019. _______________________________ Gavin Giles, Q.C. , Chief Adjudicator, Small Claims Court of Nova Scotia

ORDER WHEREAS the Defendant has sought an adjournment of the formal hearing in these proceedings scheduled for Monday through Wednesday, July 22 nd through July 24 th , 2019; AND WHEREAS the reasons for the adjournment are set out in my written reasons above; IT IS ORDERED:

(1) The formal hearing in these proceedings is hereby adjourned without date.

(2) In consultation with each other (or with counsel) the parties will agree on three mutually convenient times within the week of July 22 nd , 2019, wherein they can gather with the Court for a telephone conference aimed at securing new formal hearing dates.

(3) Once the parties’ (and counsel’

s) availabilities are determined, they are to communicate the same to me and I will arrange for the necessary telephone conference. DATED at Halifax, Nova Scotia, on July 16 th , 2019. __________________________ Gavin Giles, Q.C. , Chief Adjudicator, Small Claims Court of Nova Scotia