2016 SKPC 176, 2016 SKPC 176

PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 176 Date: December 20, 2016 File: 545/15 Location: Regina, Saskatchewan Pinky Durning Plaintiff -and - Duke Sewer Service Inc. R C Plumbing and Heating Ltd. Ryan Kennth Unruh and Saskatchewan Government Insurance Defendants Nathan Phillips for Pinky Durning Matthew Clayton for Duke Sewer Services Ltd. Kenneth Unrah – Self Represented R C Plumbing and Heating Ltd. – Self Represented Jamie Fisher for Saskatchewan Government Insurance FIAT TRANSFER OF ACTION TO THE COURT OF QUEEN’S BENCH P. DEMONG, J

[ 1 ] By summons dated December 22 nd of 2015, Pinky Durning brought action against each of the defendants identified above with the exception of Saskatchewan Government Insurance. The plaintiff alleged that the defendants, jointly or severally caused loss and damage to the plaintiff’s property when they provided services in what is alleged to be in a less than good and workmanlike manner. [ 2 ] The matter was set down for a case management conference scheduled for March 3 rd of 2016.

That case management conference was subsequently adjourned at the request of the plaintiff in order for him to file and serve an amended claim adding Saskatchewan Government Insurance as an additional defendant. That amended claim sought general and special damages including punitive (exemplary) damages against Saskatchewan Government Insurance.

The plaintiff alleges that Saskatchewan Government Insurance had breached its contract of insurance with the plaintiff when it failed to provide insurance coverage for certain losses incurred by the plaintiff arising from the resultant leaking and damage which arose by virtue of the several defendants’ negligent workmanship. [ 3 ] The plaintiff alleges that Saskatchewan Government Insurance conducted itself in bad faith and specifically seeks, as a corollary to a finding of bad faith, his legal fees for having been ‘forced to retain legal counsel at great expense to investigate, commence and prosecute this action’.

While not explicitly stated in the claim, the plaintiff has made it clear to the Court in argument that what he clearly seeks is an award of costs on a solicitor-client basis, something which he would be able to, at least argue for, if the action had been brought in the Court of Queen’s Bench. [ 4 ] A new case management conference was scheduled for May 5 th of 2016.

The matter was not resolved and upon being advised that between nine and twelve witnesses would be called, the trial was set down for three days commencing November 21 st of 2016. [ 5 ] Following the case management conference a number of orders were made by the case management Justice of the Peace which included:

a) an order directing that all parties file, with the Court, a list and copies of all documents that they intend to rely on at the trial of this action, together with a copy of each of the parties’ respective witnesses on or before July 14 th , 2016 for subsequent pick up by each of the parties thereafter;

b) an order directing that expert notices be filed with the Court on or before October 6 th of 2016; and

c) an order that rebuttal expert notices be filed with the Court on or before October 27 th of 2016. [ 6 ] On July 13 th , 2016 the plaintiff sought leave of this Court to transfer his action to the Court of Queen’s Bench. He had filed nothing to indicate that he had attempted to obtain the consent of all parties as envisaged by

section 11 of The Small Claims Act, 1997, and at the direction of the Court was invited to do precisely that. By subsequent correspondence to the Court the plaintiff indicated that he was unable to obtain that consent and gave notice of his intention to bring an application to transfer. The Court in turn adjourned the trial and directed that the application for transfer and any other matters be heard on November 21 st , 2016. Specifically, the Court sought argument on:

a) the plaintiff’s application to transfer which is predicated on a suggestion that because the plaintiff has sought punitive damages, and solicitor/client costs, the matter should be transferred because this Court lacks jurisdiction to award either;

b) the plaintiff’s application to obtain further production from the defendant Saskatchewan Government Insurance; and

c) what, if any, further direction or order the Court should make by virtue of the plaintiff and some (but not all) of the defendants’ failure to file their respective materials with this Court within the time prescribed by the order of Justice Hart on May 8 th of 2016.

[ 7 ] On October 6 th of 2016 the plaintiff filed its formal application with supporting materials. He sought the following additional relief:

a) the filing of an amended amended statement of claim;

b) leave of the Court to file his document and witness list beyond the time limits imposed by the earlier order of the court;

c) an order compelling the defendant Duke Sewer Service Inc. to file and serve a written dispute note; and

d) an order directing bifurcation of the trial with respect to the issue of quantification of SGI’s liability, if any, in regard to the plaintiff’s legal fees and disbursements. [ 8 ] In addition, counsel for the plaintiff forwarded correspondence to the Court dated October 6 th , 2016 expressing his understanding that I, as the presiding Judge, had been employed by Saskatchewan Government Insurance for a number of years prior to my appointment to the Bench some four years ago and that I had previously worked with the lawyer who is acting for Saskatchewan Government Insurance in this action.

The lawyer opined that a claim for punitive damages against SGI would be concerning to any employee that may be employed by SGI. On that basis, he invited me to consider whether or not an alternate Judge should adjudicate on this matter. He did however, make it clear that his client was not asserting bias [emphasis his].

I had considered the matter and advised that I did not believe that my previous relationship with the defendant SGI would preclude an objective judicial analysis of the preliminary matters being brought forward in this application, but I did advise the parties the they had leave to present argument on the return date of the application in respect of either actual or apprehended bias. [ 9 ] On the return date of the application I heard argument on each of the matters referred to above. I reserved on the issue of the transfer of the action to the Court of Queen’s Bench, but did make the following orders:

a) Duke Sewer Service Inc. was directed to file a dispute note in quintuplet with the Court by 4:00 p.m. on Monday, December 5, 2016;

b) The plaintiff’s application for further document production from Saskatchewan Government Insurance was dismissed at the request of the plaintiff;

c) The Court granted leave for the plaintiff to file its amended statement of claim, and all defendants were granted leave to file an amended defence if they so determined;

d) The Court granted the plaintiff leave to file its documents and witness lists;

e) The Court granted leave for the plaintiff to file additional expert notices, to be filed no later than four p.m. Monday December 5 th , 2016;

f) The defendants were granted leave to file rebuttal expert reports to any expert notice that has or will be filed by the plaintiff on a date to be determined by this Court, or, if the action is transferred to the Court of Queen’s Bench, on a date to be determined by that Court; and

g) With the consent and acknowledgment of all parties present, the Court determined that it was capable of determining the issues before it without fear of bias, real or apprehended. [ 10 ] The sole remaining matter for determination is whether or not the Court should, on the basis of lack of jurisdiction, relating to an essential component of the claim, transfer the action to the Court of Queen’s Bench.

[11] Three issues arise:

a) Does the Act grant this Court jurisdiction to award punitive damages?

b) Does the Act grant jurisdiction to this Court to award legal costs, and specifically lawyer-related costs on a solicitor-clientbasis?

c) If the Court has jurisdiction to award punitive damages, but not solicitor-client costs, should the Court, as suggested by theplaintiff, bifurcate the matter by determining the substantive matters in issue between the parties and thereafter direct theentitlement to, and assessment of, solicitor-client costs to the Court of Queen’s Bench? Does the Act grant jurisdiction to this Court to award punitive damages? [12] For the purposes of this application the Court must consider the scope of the jurisdiction that is granted to the Provincial Courtpursuant to The Small Claims Act, 1997 c. S-50.11 SS 1997.

It is clear that the claim being advanced by the plaintiff seeks damages fora breach of contract, including an allegation of bad faith, and/or negligence. The prayer for relief does not seek recovery of personalproperty, specific performance, recision of an agreement, or relief from opposing claims for personal property. As such this Court iscalled on to interpret section 3(1) (

a) of the Act which reads: 3(1) Subject to subsection (7), this Act applies, whether or not the Crown is a party to the action, to any claim or counterclaim for: (

a) Debt or damages; ... . [Emphasis added] [13] I note in passing that subsection (7) expressly limits the maximum amount that may be claimed or the maximum value of thepersonal property or services with respect to which relief may be sought. At present the statutory limit is $30,000.00. [14] The plaintiff has not offered an argument predicated on an analysis of this

section by way of statutory

interpretation but ratherrelies on three decisions of the Court of Queen’s Bench, and one decision from the Provincial Court. The first decision is Woytiuk v Lowand W.T.L. Enterprises Ltd. (SKQB). In that case Geatros J. sat in appeal of a small claims decision and was calledupon to determine whether or not the small claims Court had jurisdiction to make an award for exemplary damages under the thenexisting precursor Act entitled The Small Claims Enforcement Act, R.S.S. 1978, c. S-51, and in particular

section 3, which read in part: 3. This Act applies to ... (

b) all claims for damages or recovery of goods or chattels: (

i) where the amount or balance claimed by an individual or the value of the goods or chattels sought to be recovered by him does notexceed $500.00. [15] Geatros J. did not determine the issue. Having found that the lower court had mis-characterised aggravated damages andexemplary damages, he dismissed the appeal after concluding that aggravated damages were in fact properly awarded. He did, however,state at para 7; “Now, s. 3(

b) of the Small Claims Enforcement Act allows for a claim for damages. At first blush, it would appear that exemplarydamages are included. But the purpose of exemplary damages is to punish the defendant. They are non-compensatory in character. Herereference should be made to the proviso in s. 3(e) [am. 1978 (supp.), c.69, s 4(e); re-en. 1983, c. 65, s.4] of the Act. It prevents an actionfrom being brought under the Act “for malicious prosecution, malicious arrest, false imprisonment ...”.

So the question can well arisewhether in the particular circumstances of this case damages can be awarded other than by way of compensating the respondent. But itis not necessary to decide that in this case”.

[Emphasis added] [ 16 ] It should be borne in mind that, as Klebuc J. (as he then was) noted in MacKinnon v Devine 2003 (SKQB 548 at para 19 of that decision, ‘punitive damages and exemplary damages are synonymous and therefore only one of them ought to be pled in order to avoid confusion ...’ . I am satisfied that when Geatros J. was discussing exemplary damages his comments were equally applicable to the question of punitive damages. [ 17 ] My concern is that the plaintiff has described this comment as obiter dictum in his brief, something which this Court should accept as persuasive .

Even if I can conclude that the comments made were persuasive, I cannot conclude that they are binding upon me. It is clear to me that while Geatros J. turned his mind to the issue he concluded that it was not necessary to decide the issue. [ 18 ] The second case that the plaintiff refers to is a decision of Schmeiser J. cited as D.L. v M.L. 1993 CarswellSask 477 . In that case the plaintiff also sought punitive damages. In declining to award punitive damages, Schmeiser J. stated, at para 25: “General damages constitute future pecuniary loss and all non-pecuniary loss.

Punitive damages (exemplary damages) are meant to punish and deter. Whether the fact that a defendant in a civil action was previously convicted of a related criminal offence will bar punitive damages seems unclear. In this case, there is already a s 810 Criminal Code order to deter. I question the role of the Small Claims Court to punish under s.4 of The Small Claims Act as most of the variety of actions where punitive damages are awarded are outside this Court’s jurisdiction. Punitive damages are therefore denied”. [ 19 ] I take notice that the variety of actions that are referred to in

section 4 of the then Act are identical to those referred to in the decision of Geatros J. above. My concern, and with due respect to comity, and the comments of my sister Judge Schmeiser, is that she did not decide the question as to whether or not the Court actually had jurisdiction to award punitive damages, she simply questioned the court’s jurisdiction to award them.

In addition, a number of other Provincial Court judges have awarded punitive damages. [See, for instance: Kjargeed Heating & Cooling Ltd. v Chakraborty , 2015 SKPC 164 in which a tenant was awarded $1,500.00 in punitive damages when it was found that his landlord had offended standards of decent conduct; Clements v Platinum Paint & Body Ltd. (2001) 218 SASK R 62 in which Dirauf J. awarded punitive damages against a defendant who had employed intimidation tactics and was verbally abusive during the course of a contract and; Smith v Mid City Auto Centre Ltd. 2003 SKPC 52 , where punitive damages were awarded for committing an unfair practice contrary to The Consumer Protection Act , SS 1996, c C-30.1 ]. [ 20 ] The two remaining cases cited by the plaintiff dealt with whether or not this Court has the jurisdiction to make declaratory orders.

With due respect, this is an issue which has no bearing on whether or not the Court has jurisdiction to award punitive damages. [ 21 ] Having reviewed the case law provided by all counsel and based on the Court’s own research, I can find no case in the Court of Queen’s Bench or our Court of Appeal which has expressly directed its mind to, and then decided, whether or not The Small Claims Act, 1997 grants to the Provincial Court the jurisdiction to award punitive damages. [ 22 ] I am not persuaded that the comments of Geatros J. mirrored by Schmeiser J. in the cases noted above, are of themselves, sufficiently compelling to conclude that this Court lacks jurisdiction to award punitive damages.

The current Act, The Small Claims Act, 1997 includes a provision that is similar to but not identical to the provision considered by Geatros J. It reads:

3 ....

(9) This Act does not apply to a claim for libel, slander, malicious arrest, malicious prosecution or false imprisonment. [23] There is no question that punitive damages are non-compensatory in nature. While they can, in limited and exceptionalcircumstances be awarded to a plaintiff, they are, what our Court of Appeal in Rekken Estate v Saskatchewan Health Region #1, 2015SKCA 36 stated at para 26 : “... predicated on the defendant’s conduct rather than the plaintiff’s loss.

The purpose of punitive or exemplary damages, in other words,is fundamentally different from that of compensatory damages; punitive damages “are awarded in the main to punish and deter -punishment of the wrongdoer, and deterrence of the wrongdoer but others as well” (Personal Injury Damages, p.97).

Indeed, they areonly “awarded against a defendant in exceptional cases for ‘malicious, oppressive and high- handed’ misconduct that ‘offends the court’ssense of decency’” (see Whiten v Pilot Insurance Co., 2002 SCC 18 at para 36, [2002] 1 SCR 595)”. [24] An award of punitive damages is, therefore, subject to what the courts have described as a higher threshold. They must clear,what Mr.

Justice Barringotn-Foote , in Seven Oaks Partnership v Directcash Managment Inc. 2013 SKQB 342 described at para 62 as ‘ avery high bar’. [25] That stated, punitive damages certainly are not limited in their application to claims arising from libel or slander, or maliciousarrest, malicious prosecution or false imprisonment. Many examples abound.

They have, for instance, been awarded for assault (Guillettv Charlebois (SKCA); trespass and conversion (Clunie Enterprises Ltd. v Melfort Credit Union Limited and Saretsky,[1988] 610 SASK R 112 (SKCA); insurance and breach of good faith (Whiten supra) ; wrongful dismissal (Mastro-guiseppe v Bank ofNova Scotia 2007 ONCA 726; delay in performance of a contractual obligation (Chung v Hoy, (BSCS), intentionaltorts (Robitaille v Vancouver Hockey Club Ltd (BCCA); medical malpractice (Coughlin v Kuntz (BCSC); and product liability ( Vlchek v Koshel, (BCSC) to namea few. [26] I do not think that it can be disputed that each of the type of actions referred to above, could, if brought within the monetary jurisdiction of this Court, be heard in this court, particularly breach of contract or at least a badfaith claim for breach of contract.

I say this because, as pointed out in Basin v Hrynew 2014 SCC 71 good faith contractual performance is now a general organizing principle of the common law.Arguably, and certainly notwithstanding, the exceptional use of, and the high threshold demanded as, a precondition for the award ofpunitive damages - they will almost certainly be sought on a more regular basis in courts across Canada. [27] With the greatest of respect to the passing comments of Geatros J. in Woytiuk and Schmeiser J. in D.L., I do not think that sectin3(9) of the present Act, and its predecessor provision in previous iterations of the Act can be interpreted as constituting the basis for aconclusion that there is no jurisdiction in the Act to award punitive damages.

I say this for three reasons. First, and as I have alreadynoted, punitive damage awards are not unique to actions founded in libel, slander, malicious prosecution, malicious arrest and falseimprisonment. They are equally applicable to the vast and various actions which come to this court, particularly contracts, negligent andintentional torts, conversion and trespass. [28] Second, I believe there is another, more reasonable basis upon which libel, slander, malicious prosecution, malicious arrest, andfalse imprisonment are excluded under the Act.

As I will soon discuss, it is clear that the central objective, intent and purpose of TheSmall Claims Act, 1997 is to provide for a timely, efficient and cost effective resolution of disputes, unhindered by undue formality.While this intent and objective is intended to advantage both a plaintiff and a defendant, a plaintiff should not be precluded from takingadvantage of this court unnecessarily by a defendant wishing to take equal advantage of his or her statutory entitlement to a jury trial.

Inthat regard, I would note that both The Jury Act, 1998, c J-4.2, s 18 [Jury Act}and its predecessor legislation grants any party thestatutory right to a jury trial for precisely those same causes of action: 18(1) Any party may demand a jury in accordance with the Queen’s Bench Rules in an action: (

a) for libel, slander, malicious arrest, malicious prosecution or false imprisonment; or... [29] Our court determines issues before a judge alone and not with judge and jury. On that basis, if the Act allowed these types ofactions to proceed, a plaintiff or defendant would be deprived of

the statutory entitlement set out in section18 of The Jury Act. It would seem to me that the government intended to preclude these typesof action from proceeding in small claims court to avoid the natural conflict that would arise between the Act and the Jury Act.Otherwise, any claim framed as libel, slander, malicious prosecution, malicious arrest, or false imprisonment could easily be defeated in this Court upon ademand for jury having been made upon a plaintiff. Because this Court has no jurisdiction to try a matter before judge and jury. [30] Third, I believe that the plaintiff’s invitation to place a restricted

interpretation on section 3(1)(

a) of the Act would force thisCourt to not only employ an unduly narrow construction to the phrase ‘this Act applies ... to any claim or counterclaim for debt ordamages ....’, but it would be contrary to the objectives of the Act. [31] On its face, the words are clear and unambiguous. The Act does not attempt to limit, in any way, the type of damages which maybe awarded. They do not distinguish between general damages or special damages, or aggravated damages, or damages for pain andsuffering, or loss of income, or loss of amenities.

Admittedly, all of these forms of damages are compensatory in nature, but as counselfor SGI points out in referring to Cason Enterprises Ltd. v Boughton & Co. (SCC), Justice Laforest defined damages as a‘monetary payment awarded for the invasion of a right at common law’. Therefore, while punitive damages may be awarded for thepurposes of punishment or deterrence, they are, nevertheless, awarded to a plaintiff, in consequence of the invasion of that plaintiff’scommon law rights. [32] The

Interpretation Act, SS 1995 c I-11.2 directs this Court to look to the objectives of the Act in the course of interpreting itsprovisions: 10 Every enactment shall be interpreted as being remedial and shall be given the fair, large and liberal construction and

interpretationthat best ensure the attainment of its objects. I take special note of the phrases ‘large and liberal’ and ‘best ensure the attainment of its objects’. [33] It is clear that the objective of the Act is to allow litigants access to civil justice in a timely efficient and cost effective manner,unhindered by undue formality. Authority for this proposition can be found both in respect of the current Act and its predecessorlegislation.

In Paziuk v Dunn Trailer Sales Ltd. (SKQB), Baynton J. noted: “It is evident from a review of the Small claims Act that its primary objective is to provide a mechanism whereby disputes not involvinglarge sums of money can be resolved expeditiously and cost effectively ... .” In Hartridge v Tri-Fanta Industries, [1990] SJ No 468 (QL) (SKQB), Baynton J. reiterated this objective: “Although I appreciate the difficulty facing an individual conducting his or her case in Small Claims Court, the whole purpose of suchproceeding is to provide an informal and inexpensive arena in which parties to a dispute may have their claims adjudicated upon.” McLellan J., of our Queen’s Bench has cited Paziuk with approval in Barilla v Ackerman, (SKQB), and Hartridgewith approval in Hayhurst v Brockmeyer, (SKQB).

In Smith v Clewes, (SKQB) at para 5 theQueen’s Bench defined the objective as follows: “The purpose of the Act is to provide a simplified, expeditious and inexpensive trial procedure where the claim is small and the facts arenot complicated.” Most recently, Megaw J. in Saskatchewan Government Insurance v Young, 2016 SKQB 162 at para 14 identified the purpose of thesmall claims court: “ to provide litigants with a cost effective, efficient mechanism by which disputes, limited in dollar value, may beresolved’.

[34] There is no question that these central purposes and objectives are predicated on, and increasingly recognized indirectly by, theSupreme Court of Canada’s reiteration of the importance of access to justice. In Hryniuk v Mauldin, 2014 SCC 7, the Court was calledupon to discuss the application of

summary judgment. At para 1, Karakatsanis J., speaking for the majority began: “Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive andprotracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford togo to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened.

Without public adjudication ofcivil cases, the development of the common law is stunted”. [35] Our Supreme Court’s concern with access to justice is apparent and obvious. It explains why Justice Cromwell of that Court has chaired the ‘Action Committee on Access to Justice in Civil and Family Matters’. Thatcommittee in turn has produced its ‘Roadmap for Change (published by the Action Committee, (Ottawa. Canada, October 2013). Theforward to that report, provided by Beverley McLachlin, P.C., Chief Justice of Canada reads in part: “Let me start by saying that the problem of access to justice is not a new one.

As long as justice has existed, there have been those whostruggled to access it. But as Canadians celebrated the new millennium, it became clear that we are increasingly failing in ourresponsibility to provide a justice system that was accessible, responsive and citizen-focussed.

Reports told us that cost, delays, long trials, complex procedures and other barriers were making it impossible for moreand more Canadians to exercise their legal rights. ...” [36] I refer to these passages to reiterate that, when interpreting the jurisdiction of this court, due consideration should be given to itscentral objective ... access to justice. [37] With this in mind, I turn to the decision in Rizzo & Rizzo Shoes Ltd., (Re) (SCC), [1998] 1 SCR 27 (SCC)[Rizzo] which has been considered and applied by our Court of Appeal most recently in Holtby-York v Saskatchewan GovernmentInsurance, 2016 SKCA 95, and the rules of statutory construction considered therein.

At para 6, our Court of Appeal identified Rizzo asthe leading case with respect to statutory

interpretation and identified these principles: 1. The words of

an Act are to be read in their context and in their grammatical and ordinary sense harmoniously with the scheme of theAct, its objects, and the intention of the legislature ... . 2. The legislature does not intend to produce absurd consequences. An

interpretation can be considered absurd if it leads to ridiculous orfrivolous consequences, it is extremely unreasonable or inequitable, if it is illogical or incoherent or if it is incompatible with otherprovision or with the object of the legislative enactment ... . 3. Any statute characterized as conferring benefits must be interpreted in a broad and generous manner ... . 4.

Any doubt arising from difficulties of language should be resolved in favour of the claimant ... . [38] Applying these principles, I come to the following conclusions: First, read in context, and in its grammatical and ordinary sense,the phrase ‘any claim for ... damages...’ should not be read so narrowly as to exclude a claim for punitive damages. To do so wouldappear to do violence to the objective of allowing litigants to seek redress in a court which has, as its established purpose, and its schematic process, the timely, cost effective and efficient resolution of disputes unburdened by undue formality.

This would be anarrow, as opposed to a fair, large and liberal construction, which would not, in my view, best assure the attainment of its objects. It must be remembered that conduct by a defendant which mightbe characterized as malicious, oppressive or high-handed is not reserved uniquely to those defendants who have, by their actions,deprived a plaintiff of a benefit in excess of $30,000.00. One may rightly conclude that this conduct is at least as prevalent in situations

where a claim is being advanced for less than that sum. If these aggrieved litigants were precluded from coming to this court, and forcedto bring their actions in the Court of Queen’s Bench, with the attendant cost, complexity, and formality, many would be prevented from doing so. It would not be cost effective toproceed with those claims, and would constitute the very barrier to access to justice which each of Mr. Justice Karakanatisis and ChiefJustice McLachlin express such concern, and for which the Small Claims Court was intended.

Worse, it may act as a means by whichunscrupulous defendants find comfort, recognizing that the conduct in question could not easily be remedied, by disallowing thosepersons already aggrieved by this conduct to seek redress in any meaningful way. Simply put, malicious and oppressive and high-handedconduct may arise just as frequently in a situation where the amount at stake is well under a $30,000.00 threshold. [39] Second, I conclude that our legislature did not intend to produce such an unreasonable or inequitable result.

Importing ‘punitive’damages into the broadly worded phrase ‘any claim for ... debt or damages’ does not produce an absurd consequence or lead to aridiculous or absurd consequence, nor is it incompatible with other provisions or the objective of the Act. It should be remembered that itis the members of the provincial court which sit in Small Claims Court.

As the court of first instance in criminal matters inSaskatchewan, the members of this court are well acquainted with sometimes malicious high-handed and oppressive conduct and are notstrangers to the concepts of punishment and deterrence. [40] Finally, even if I could find difficulty with the ordinary and grammatical

interpretation of the phrase ‘any claim for ... debt ordamages’, it would seem clear to me that I am to interpret that phrase in a manner in which any doubt should be resolved in favour of aclaimant which comes to this court seeking resolution of her dispute in accordance with the purpose and objectives of its enactment. It isto be read as remedial. [41] For all of the these reasons, I conclude that The Small Claims Act, 1997, grants to this Court jurisdiction to award punitive damages, if such an exceptional award of damages is called for.

Does the Act grant jurisdiction to this Court to award legal costs and specifically lawyer-related costs on a solicitor/client basis? [42] The authority to award costs under the Act is limited.

Section 31 of the Act grants to a judge the discretion to ‘award costs, otherthan lawyer-related costs, on such terms and conditions as the judge considers appropriate’, including those out of pocket expenses articulated in that

section Elson J., of our Court of Queen’s Bench inRjabar v Baltic Properties and Developments Incorporated, (SKQB) has, however, made it abundantly clear that thisCourt cannot award lawyer-related costs, or even costs which may in pith and substance reflect those lawyer-related costs. I am of coursebound by the decision of Elson J’s and I conclude therefore that this Court has no jurisdiction to award lawyer-related costs, let alonelegal costs on a solicitor-client basis. [43] In the instant circumstances, the plaintiff is, and always has been, represented by counsel.

He voluntarily attorned to thejurisdiction of this court and then chose to amend his claim and continue with the action up to and beyond case management. Thedefendants have incurred time and expense and energy in defending the action, filing materials, and briefs of law, only now to be advisedthat much of this work is for not, because the plaintiff seeks transfer to Queen’s Bench. Plaintiff’s counsel advises that the decision tocome to this Court may have been an error of earlier counsel who originally drafted the claim.

It was only upon assuming the file fromearlier counsel (who works in the same office as the current plaintiff’s counsel), that he recognized the error in jurisdiction. I concludethat I must accept this explanation. I also conclude that, but for the thrown away time and expense and energies of the defendants, thereis no principled reason why I should not transfer the action in order for the plaintiff to attempt to obtain the relief that he seeks. For thatreason, I am directing that the file be transferred to the Court of Queen’s Bench, in accordance with

section 11 of the Act. If the Court has jurisdiction to award punitive damages, but not solicitor and client costs, should the Court bifurcate the matterby determining the substantive matters in issue between the parties and thereafter direct the entitlement to, and assessment of, solicitor-client costs to the Court of Queen’s Bench? [44] I have made my decision to transfer the entirety of this matter to the Court of Queen’s Bench because I do not believe that theplaintiff’s request for bifurcation of this action between the Small Claims Court and the Court of Queen’s Bench has any merit. First, Ibelieve that it would be

a most unusual situation whereby a judge of any court would be disposed to assess costs, particularly solicitor-client costs arising from a trial in which she was not sitting as the trial judge. Costs are a matter of discretion, and that discretion would be influenced by any number of factors that may arise at trial. In the absence of hearing the matter in its entirety, it would be almost impossible to exercise that discretion judicially. More importantly, if such an approach were adopted, one of the essential provisions of the Act - the non-awarding of lawyer-related costs - would be undermined.

It would result in any number of attempts to obtain lawyer-related legal fees indirectly when they cannot be awarded directly.

I am of the view that this type of end run is not what was sought or intended when the Act was drafted. [ 45 ] While it does a disservice to those defendants which have participated and complied with the practices and procedures of this court, and incurred some time and energy and expense in so doing, I direct that the matter be transferred forthwith, at this stage, on a without costs basis, and in so doing, invite the Court of Queen’s Bench to give due consideration to any costs which may have been thrown away by the respective defendants in being forced to proceed in this Court when, with a little foresight, the plaintiff and counsel could have recognized the lack of jurisdiction in this Court at a much earlier date.

Dated at Regina, Saskatchewan the 20th day of December, 2016. P. Demong, J