Anthony Sacher - v. -, 2018 SKPC 9

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: February 7, 2018 2018 SKPC 009 File: SC#580 of 2017 Location: Saskatoon _____________________________________________________________________________ Between: Anthony Sacher - and - Canadian Hot Rods Inc. Self For the Plaintiff Benedict Nussbaum For the Defendant _____________________________________________________________________________ REASONS FOR COSTS DECISION Q.D. AGNEW , J _____________________________________________________________________________ [ 1 ] This claim was issued on September 7, 2017.

According to an affidavit of service on the court file, the Summons, Notice and Claim were served on the corporate defendant on September 26, 2017. The defendant has filed no Dispute Note, documents or any other material. On January 29, 2018, the Court Clerk’s office received an email from Wayne Booth, who is apparently a principal of the defendant, requesting that the case management conference (“CMC”) scheduled for today be adjourned. The plaintiff did not consent to such adjournment.

[ 2 ] The adjournment request came before me. I refused the adjournment. According to Mr. Booth’s email and a subsequent letter, he is in the United States, where he has apparently been for some time. His wife is ill, but it appears that this illness is of long- standing, not an emergency matter. It appears that Mr. Booth and his wife went to the United States knowing that they would be there when the CMC was scheduled to occur. Mr. Booth states that he has not seen the documents which were served on his corporation four months ago.

He has not taken any steps in this proceeding whatsoever, save to contact the Court Clerk’s office to request an adjournment. I note that the Notice served on the defendant constitutes a court order requiring the defendant, if it opposes the plaintiff’s claim, to file a defence and any relevant documents in its possession within a specified period prior to today’s date; as noted, nothing of that nature has been filed. [ 3 ] At the CMC held February 5, 2018, the plaintiff was present, as was Mr. Benedict Nussbaum, a solicitor retained February 1, 2018 by the defendant. Mr.

Nussbaum has not received from his client any of the documents served on the defendant, nor has he seen them from the plaintiff or the Court. Mr. Nussbaum did not have settlement instructions on behalf of the defendant. Understandably, he requested an adjournment on behalf of the defendant. [ 4 ] Reluctantly, I granted the adjournment. I noted that Mr. Booth, by his actions, had effectively forced me to grant the adjournment which I had denied him just days ago. Had Mr. Nussbaum not appeared, I would likely have granted the plaintiff judgment in the terms of his claim.

As it is, I have no reason to believe that the defendant will actually now choose to file his documents, draft a defence or otherwise participate in this action; at the same time, the plaintiff’s time has been wasted, and court time has been wasted which could otherwise have been used for another case.

I note that the Small Claims caseload is sufficiently heavy that this claim, which was commenced almost five months ago, could not get a CMC date until today. [ 5 ] In granting the adjournment, I ordered that the defendant pay costs of $500.00 to the plaintiff within 30 days of today’s date, and that in default of so doing, there would be judgment for the plaintiff in the amounts set out in the statement of claim.

These are the reasons for that decision. [ 6 ] In making the order, I was considering the fact that The Small Claims Act, 2016 , SS 2016, c S-50.12, requires that the defendant appear in person at the CMC, not simply by counsel, and that the person so appearing must have authority to settle (ss. 12(3) (

a) and (b)). The defendant has defaulted in both of these. I also considered the fact that the defendant has not complied with the Court’s order to file a defence and relevant documents. I further considered that in the absence of Mr. Booth or any other representative of the corporation (as opposed to Mr. Nussbaum, as per s. 12(3)(b)), it was an available option to me to grant judgment against the defendant in the terms sought in the claim (s. 12(8)(b)(ii)).

I concluded that the above order was a proper balancing of the rights of the parties. [ 7 ] The new Act contains new rules with respect to costs (s. 36), and the quantum thereof ( The Small Claims Regulations, 2017 , Sask Reg 1/18, s. 6).

Section 36 has three different provisions for costs, each regarding a different set of circumstances or issues. Subsection 36(1) is a general costs provision. Costs under it are restricted to a maximum of $200.00, except in “exceptional circumstances”. Subsection 36(2) specifically deals with circumstances in which a party fails to attend or prepare for a stage of the proceedings without reasonable excuse, or takes any step for the purpose of delaying a proceeding or increasing another party’s costs. Costs under this subsection are restricted to a maximum of $500.00 per occurrence.

Subsection 36(3) deals with costs at the conclusion of the matter, and is therefore not relevant. In both (1) and (2), the Act states that costs may be awarded “on any terms and conditions that the judge considers appropriate”. [ 8 ] Mr. Booth’s actions on behalf of the defendant justify costs under either of these two subsections. [ 9 ] With respect to s. 36(1), Mr. Booth’s actions clearly support an order for costs - his actions have wasted the plaintiff’s time, and there has now been no progress in this matter for many months. Mr.

Booth’s actions in disregarding this action until almost literally the last minute and then manoeuvring so as to overcome the Court’s refusal to grant an adjournment, constitute “exceptional circumstances”.

Although the examples listed for costs in this subsection are all expenditures, there is nothing in the wording to suggest that the subsection is limited to expenditures. [ 10 ] With respect to s. 36(2), it is clear to me that the defendant has no reasonable excuse for not attending: there is no suggestion before me that no one else from the corporation could have acted for it; the corporation has been aware of this action for four months, and has done nothing; Mr. Booth, assuming he is the only person who could represent the defendant at the CMC, chose instead to go to

the US and only request an adjournment less than a week before the CMC; Mr. Booth did not, even with the assistance of counsel, seek to appear by telephone so as to allow the scheduled CMC to proceed. [ 11 ] Finally, although the consequence of non-payment of costs may appear draconian, I made it in light of the fact that it would have been possible for me to make that order at the CMC, given that the defendant did not appear. If the defendant, having been given a reprieve, refuses to pay the costs consequential to that reprieve, it seems appropriate that it should lose the benefit of the reprieve.

I consider that this aspect of my order falls within the “any terms and conditions the judge considers appropriate” provision of subsections 36 (2) and (3). ______________________________ Q. D. Agnew, J