George v. LeBlanc, 2023 NSSC 329

SUPREME COURT OF Nova Scotia Citation: George v. LeBlanc , 2023 NSSC 329 Date: 20230925 Docket: 523716 SCCS: 519777 Registry: Sydney Between: Kalvin A.J. George and Barbara Floyd Appellants v. David Edward LeBlanc and Debbie LeBlanc Respondents Small Claims Court Appeal D E C I S I O N Judge: The Honourable Justice James L. Chipman Heard: September 25, 2023, in Sydney, Nova Scotia Written Decision: October 16, 2023 Counsel: David J.

Iannetti, for the Appellants David Edward LeBlanc and Debbie LeBlanc, on their own behalf By the Court (orally): Background [ 1 ] This is an appeal from a decision of the Small Claims Court of Nova Scotia. [ 2 ] The Small Claims Court Notice of Claim, Form 1, was filed December 14, 2022, by David Edward LeBlanc and Debbie LeBlanc. On February 15, 2023, the Defence, Form 2, was filed by Kalvin A.J. George and Barbara Floyd. [ 3 ] A telephone hearing was initially scheduled for April 19, 2023. During this call, the Defendants made a motion for an in- person hearing.

Subsequent to the within appeal being filed, the Adjudicator filed a report of findings (the Adjudicator’s Report). He described the April 19 th hearing as follows: As usual there were several cases on the docket and the Adjudicator followed the usual process in calling the Court to order, doing a roll call as to who is on the line, which cases are ready to proceed and whether any cases have counsel representing. The Court determined that this case was going to be called first as it had senior counsel representing the defendants and a courtesy is

always extended to call senior counsel case before less senior counsel. The normal practice of the Adjudicator is to explain the process of how the case will proceed - this is an important step as many claimants/defendants are often not represented by counsel and may not be aware of how to present their cases. The Claimant is asked to present their case first or to deal with any preliminary motions. Then the Defendant is given the opportunity to cross examine on any evidence or testimony presented by the Claimant.

Once the Defendant is done with the cross examination, then the Defendant is asked to present their defence. The Claimant is given an opportunity to cross examine the Defendant’s evidence and/or testimony presented. Both the Claimant and the Defendant are then asked to make closing or final submissions to the Court who may or may not reserve judgment or render a decision from the bench. This is how the Court started to proceed but the Defendant’s counsel proceeded to let the Court know that: “…in all of his 30 plus years practicing law, that he has never appeared for a hearing by phone. That he was not having no

part in it and that they were not going to get a fair hearing if the hearing was to proceed via telephone.” The Court tried to explain to counsel that Small Claims Court hearings are now conducted by telephone conference, but counsel insisted that this case was extremely complicated and that he demanded that it be done in person. The Court tried to explain the process to counsel about what is need to get an in- person hearing and that it was not an automatic process and that it may end up delaying the hearing for several months and that we would be looking at some time in the fall for an in person hearing.

Counsel, by now was very disrespectful of the Court process and was talking over the Adjudicator, raising his voice almost to the point of shouting into the telephone. Counsel demanded that the Court conduct an in person hearing because this case was complicated, and that the Claimant was a former police officer and that the credibility of the Claimant was a major issue in the case.

Counsel stated: “… it was impossible for the Court to properly assess the credibility over the telephone and that telephone hearings were inherently not fair .” The Court tried once more to explain to counsel the process for requesting an in person hearing and that the only other way was for the case to be filed in Supreme Court rather than in the Small Claims Court.

Counsel stated: “that is the way we are going to proceed and that they were going to file in Supreme Court. ” Court asked them for an undertaking that they were going to do this, and counsel provided the undertaking that they were going to file for an in person hearing in Supreme Court. The Court noted that this was very unusual as they were the defendants and not the Claimants but if there was a counterclaim it was over the Court’s $25,000.00 limit then it should be filed with the Superior Court.

Counsel did not wait to hear the Court on this issue and once the Court agreed to adjourn the matter to allow the Defendant to file in Superior Court, counsel then abruptly left the telephone hearing. The matter was then adjourned to wait for filing in Supreme Court. [ 4 ] For this appeal, I take judicial notice of the following with regard to the Small Claims Court of Nova Scotia since the onset of Covid19 in March, 2020. During the pandemic, the Small Claims Court transitioned to telephone hearings. Post-pandemic this has continued unless the Adjudicator agrees to hold the hearing in person.

The Adjudicator then makes the request to Court Services which ensures that this occurs. In this instance, the Adjudicator obviously did not agree to hold the hearing in person. From the Adjudicator’s Report, it is clear that the matter was adjourned with the Adjudicator requesting and receiving an undertaking from Defendants’ counsel to file in the Supreme Court of Nova Scotia. [ 5 ] From the Adjudicator’s Report, the Adjudicator himself noted that this approach was “very unusual”; nevertheless, this is how the matter was left.

The next passage that appears in the Adjudicator’s Report appears under the heading “April 20, 2023 email”: Counsel must have realized later that they could not do what they had undertaken and sent an email to the court clerk stating that he believed that the adjudicator was confused and that counsel represented the Defendant and not the Claimant. Counsel reiterated the request for an in-person hearing. Court then directed another telephone conference to deal with the request and have the defendant make the motion at the start of the hearing.

All parties were informed that a hearing was set for April 26, 2023, to deal with the in person hearing request. [ 6 ] Unfortunately, in the Adjudicator’s Report, Appellants’ counsel’s three emails are not completely referenced. The emails of April 19, 20 and 26, 2023 form part of the file and are attached to Mr. Iannetti’s August 8, 2023, Affidavit. They read as follows: April 19, 2023 I represent Kalvin George & Barbara Floyd in this contested matter scheduled for tonight. I learned just this morning that this matter is to be heard by phone. I am formally requesting that this matter be heard in person.

Given the nature of the claim I believe it is impossible to properly cross-examine witnesses or to do an adequate direct. Mr. George was prepared to come from Antigonish (where he resides) and Ms. Floyd was calling in from another location. I understand Tuma Young is the adjudicator. I would request that you please notify him that I am requesting the matter be adjourned and we be given a new date to appear in person…. April 20, 2023 Further to our call of this morning this matter was to be heard but I objected and requested the matter. The matter was adjourned by

Tuma Young. However, I believe he was confused because he insisted that I give my undertaking to file this claim in Supreme Court by April 28, 2023 by noon (next Friday). I tried to explain that I represent the Defendants and not the Claimants. Can you try to straighten this out? My clients just want an in-person hearing. …. April 26, 2023 Dear Ms. Scott, can you please advise Mr. Tuma Young that I will not be calling in to Small Claims Court at 5:00 p.m. I feel there is no need to explain the situation any further. My clients (and myself) wish to have this claim heard in person.

I have already advised the adjudicator that this matter involves exhibits that must be shown to a witness and credibility is a big issue. A person hearing a particular claim can only assess credibility by watching closing the comportment of a particular witness. I reiterate, once again, on behalf of my clients that an in person hearing is required. My clients will not participate in a Small Claims Court by phone. Can you please advise Mr. Young of the Defendants’ position.

Further, in terms of the undertaking to file our claim in Supreme Court that is something I cannot comply with as I am not the solicitor for the Claimants. I don’t see the purpose of a phone in this evening. The Defendants’ position remains clear – an in-person hearing. Ms. Scott can you advise me of the new date please for the in-person hearing. Yours truly….. P.S.: Would you please forward this to Mr. Young. Analysis [ 7 ] Appeals from decisions from the Small Claims Court are limited to the grounds prescribed in s. 32(1) of the Small Claims Court Act . R.S., 1989, c. 430.

The available grounds are: 1. jurisdictional error; 2. error of law; 3. failure to follow the requirements of natural justice The Appellants argue that grounds two and three exist. They filed extensive submissions supporting their position on appeal as did the Respondents. [ 8 ] The Adjudicator’s Report confirms that a quick judgment was granted against the Appellants as he proceeded over the phone on April 26, 2023 in the absence of the Appellants. In my view, by proceeding in this manner the Adjudicator committed an error of law and failed to follow the requirements of natural justice.

With respect to error of law, an Adjudicator only has the authority to grant an order of this kind if no Defence is filed – s. 23(1) of the Small Claims Court Act . In this case it is abundantly clear that, as I said at the outset of this decision, a Defence was filed on February 15, 2023. [ 9 ] From the Adjudicator’s Report, it is clear that a motion to appear in person was made by Mr. Iannetti during the initial hearing on April 19, 2023. While the initial appearance was adjourned, it was done on the basis of what the Adjudicator himself described as “very unusual” circumstances.

Rather than requesting an undertaking from the Appellants to move the matter to Supreme Court (when the Adjudicator knew that this suggestion was fraught with difficulty), I am of the view that the Adjudicator should have exercised his discretion to hear the matter in person. In any event, the Adjudicator’s decision to proceed on April 26 th in the absence of hearing evidence from the Appellants was wrong. It was a failure to follow the requirements of natural justice. A Defence had been filed. Mr.

Iannetti made it clear on the record that his clients had a viable defence and that they wanted to have the opportunity to have an in- person hearing so that proper direct and cross-examination could take place. [ 10 ] This is a case that involves differences of opinion, differences of perspective in terms of what transpired regarding assurances made or not proffered concerning the sale of a trailer. In my view it is fundamental to have the in-person evidence of the parties before a fact determination and ultimate disposition. Such did not occur here.

The Adjudicator forged ahead over the telephone and ordered that a sum approaching $7,500 be paid without hearing any evidence whatsoever from the Appellants. Further, the Adjudicator proceeded to quick judgment when a Defence had been filed and when a vigorous position had been put on the record that the hearing required in- person evidence. [ 11 ] Having regard to the pleadings and affidavits, I agree with the Appellants that this dispute will obviously require a determination of credibility. Assessing witnesses will be critical to determine the outcome of the lawsuit.

This cannot properly occur over the telephone. I am of the view that this can best be accomplished through an in-person hearing and this is the mechanism to achieve justice between the parties. Conclusion [ 12 ] In the result, I allow the appeal in its entirety without costs and I order that a new in-person hearing take place before an Adjudicator other than Mr. Young. Chipman, J.