Atlantic Photo Supply, 2021 NSSM 21

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Atlantic Photo Supply

(2001) Limited v. Mackie Moving Systems Atlantic , 2021 NSSM 21 2021 Claim No. 498687 BETWEEN: ATLANTIC PHOTO SUPPLY

(2001) LIMITED Claimant - and - MACKIE MOVING SYSTEMS ATLANTIC, a division of 4478959 Canada Inc. Defendant DECISION [ 1 ] This is an application by the Defendant to set aside my Order signed February 8, 2021 (filed February 11). The application is made pursuant to Section 23(2) of the Small Claims Court Act, S.N.S. 1989, c. 430, based on the alleged grounds that the Notice of Claim was not served upon the Defendant’s Recognized Agent and that he only became aware of the proceeding after the Order of February 8 th was issued. [ 2 ] I am granting the application and setting aside the Order of February 8, 2021.

The reasons for this follow. [ 3 ] Section 23(2) of the Small Claims Court Act, reads: 23(2) Where a defendant against whom an order has been made pursuant to subsection (1) appears, upon notice to the claimant, before the adjudicator who made the order and the adjudicator is satisfied that (a)the defendant has reasonable excuse for filing a defence within the time required; and (b)the defendant appeared before the adjudicator without unreasonable delay after learning of the order; the adjudicator may set aside the order and set the claim down for hearing. [ 4 ] I would first note that the Claimant had notice of this application but did not appear at the teleconference hearing of March 23. [ 5 ] As to s. 23(2), it is to be noted that there are two requirements.

I will quickly dispose of the second requirement that there has been no unreasonable delay. Given the timeline here, I am fully satisfied of that.

[ 6 ] With respect to whether or not there was a reasonable excuse for failing to file a Defence, I note the following. [ 7 ] First, there was on file and before me, an Affidavit of Service dated December 2, 2020, which states that the Defendant was served by leaving a true copy of the Notice of Claim with an individual named “Robert Plehm (General Manager).” As I will develop more fully, except in a limited category of cases, it is not sufficient to serve a general manager of a corporate defendant. Rather, the legal requirement is to serve the recognized agent and failure to do so is insufficient service in law.

It inescapably follows, that failure to serve the recognized agent constitutes a reasonable excuse for failing to file a Defence within the time required. [ 8 ] The applicable legislative provisions for service of a notice of claim issued under the Small Claims Court Act follow. [ 9 ] The Act in

Section 21(1A) and 21(3) states: 21(1A) The claimant shall serve each defendant with a certified copy of the original claim document and a form of defence; . . . 21(3) Service of all documents may be by personal service or such other manner of service or substituted service as prescribed by the regulations. [Underlining added] [ 10 ] Section 33(1) of the Small Claims Court Act reads: 33(1) The Governor in Council may make regulations …(d)(

a) respecting service or substituted service of documents; [ 11 ] The Small Claims Court Forms and Procedures Regulations, N.S.

Reg. 157/2007, state in 3(3): Service of a Notice of Claim and a form for a Defence/Counterclaim shall be by personal service or such other manner of service as directed by the court. [Underlining added] [ 12 ] These provisions make it clear that service of the notice of claim is to be by way of “personal service” or “…such other manner of service directed by the Court”, which is inapplicable here. [ 13 ] The question then is what is exactly is meant by “personal service”, and more particularly here, personal service on a corporation. The term is not defined in the Small Claims Court Act or Regulations.

However, there is a comprehensive definition in the Nova Scotia Civil Procedure Rules in Rule 31.03(1). This Rule describes how to effect personal service on various categories of parties, including in clause (d), a corporation registered under the Corporations Registration Act , S.N.S. 1989, c. 101. Rule 31.03(1)(

d) reads: 31.03(1) Personal service must be effected as follows: (

d) corporation registered under the Corporations Registration Act - To a corporation registered under the Corporations Registration Act , by handing it to the recognized agent or in the absence of the agent, as provided in the service of documents provisions of that legislation. [ 14 ] The Defendant in this matter, 4478959 Canada Inc. is a corporation registered under the Nova Scotia Corporations Registration Act . It has a recognized agent who is Serge Nadeau and the address given online is 30 Gurholt Drive, Dartmouth, Nova Scotia, B3B 1J9. [ 15 ] Mr. Nadeau was not served with the Notice of Claim. [ 16 ] It is not necessary to consider the concluding words of Civil Procedure Rule 31.03(1)(

d) which only applies in the absence of the agent. There was no suggestion of that circumstance. [ 17 ] For completeness, I also site s. 9 of the Nova Scotia Corporations Registration Act which reads: Recognized Agent

(1) Every corporation holding a certificate of registration shall appoint and have a recognized agent resident within the Province, service upon whom of any order, summons, process, notice or other document shall be deemed to be sufficient service upon the corporation, and if any corporation fails to appoint and have such agent it shall be liable to a penalty not exceeding one hundred dollars.

(2) A statement showing the name and address of such agent and from time to time a statement showing any change of such agent or his address, shall be filed with the Registrar, and until such statement is so filed a corporation shall be deemed not to have complied with the provision of this

Section with respect to appointing and having such agent.

(3) If a corporation has no such agent or the agent cannot be found or is absent, any order, summons, process, notice or other documentation may be served on any officer or on any employee of the corporation or, in the case there is no such officer or employee or he cannot be found or is absent, may be posted in a conspicuous place on any land or building owned or occupied by the corporation and such service or posting shall be deemed to be sufficient service upon the corporation. [ 18 ] It will be noted that subsection 9(3) is consistent with and complementary to Civil Procedure Rule 33(1)(

d) which speaks to the absence of the agent. Here, in s. 9(3) the language refers to situations where a corporation has no agent or the agent cannot be found or is absent; then, and only then, may a notice of claim be served on any officer or any employee of the corporation or, failing that, posted in a conspicuous place on any land or building owned or occupied by the corporation. [ 19 ] The bottom line of all this is that a recognized agent of a corporation is the appropriate and valid individual to serve for a Notice of Claim under the Small Claims Court Act .

Only in the exceptional circumstances referred to above may other options be considered. [ 20 ] Here, the Recognized Agent was not served. I conclude that the claim was not properly served and it follows that, for the purposes of s. 23(2) of the Small Claims Court Act , there was a reasonable excuse for failing to file a Defence within the time required. [ 21 ] It follows that the Order of February 8, 2021, must be set aside.

ORDER [ 22 ] It is hereby ordered that the Order of February 8, 2021 (filed February 11 th ), is hereby set aside and, further, any order based on that original Order, including an Execution Order of February 22, 2021, is hereby set aside. DATED at Halifax, Nova Scotia, this 28th day of April, 2021. MICHAEL J. O’HARA ADJUDICATOR