Nick Prebushewski - v. -, 2016 SKPC 24

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 024 Date: February 11, 2016 File: 130 of 2015 Location: Saskatoon _____________________________________________________________________________ Between: Nick Prebushewski - and - Joe Saccucci Self -represented For the (Applicant) Plaintiff Self -represented For the (Respondent) Defendant _____________________________________________________________________________ DECISION ON AN APPLICATION UNDER S. 37 OF THE SMALL CLAIMS ACT V.L.

MONAR ENWEANI , J _____________________________________________________________________________ [ 1 ] The Applicant (Plaintiff), Nick Prebushewski (“Mr. Prebushewski”) applies to set aside a default judgment granted November 12, 2015, dismissing his claim against the Respondent (Defendant), Joe Saccucci (“Mr. Saccucci”).

[ 2 ] By a Statement of Claim dated March 13, 2015, Mr. Prebushewski commenced an action against Mr. Saccucci demanding payment of the sum of $3,865.00 in relation to a horse boarding agreement, damaged tack, grain hauling, the use of a horse trailer, and for bushels of grain sold to Mr. Saccucci. [ 3 ] Both Mr. Prebushewski and Mr. Saccucci appeared at a case management conference on June 24, 2015. At the case management conference, a trial date of November 12, 2015 was selected. [ 4 ] On November 12, 2015, with neither party appearing on the trial date, default judgment was granted dismissing the claim.

A Certificate of Judgment dated November 18, 2015 was provided to both parties. On December 4, 2015, an application to set aside the default judgment was filed by Mr. Prebushewski, pursuant to s. 37 of The Small Claims Act, 1997, c . S-50.11 (the “ Act ”). The application was heard on February 4, 2016. Both Mr. Prebushewski and Mr. Saccucci appeared before the Court and made submissions. [ 5 ]

Section 37 of the Act sets out the requirements for an application to set aside a judgment and provides in part as follows: Setting aside judgment 37(1) Subject to subsection (2), if there has been no appeal from a judgment pursuant to this Act, any party to the action may, within 90 days after the date of judgment, apply to the court for a summons to set aside the judgment and rehear the matter if: (

a) the party applying to set aside the judgment did not appear at: (

i) the case management conference at which the judge gave judgment; or (ii) the trial at which the judge gave judgment; (

b) the party applying to set aside the judgment submits an affidavit setting out: (

i) the party’s reasons for not appearing; and (ii) if the party is a defendant or a third party, that the party has a valid defence to the claim or third party claim, as the case may be, made against him or her; and (

c) in the opinion of the judge: (

i) the party applying to set aside the judgment has a reasonable excuse for not appearing; and (ii) if the party is a defendant or a third party, the party has a valid defence to the claim or third party claim, as the case may be. [ 6 ] This Court must determine whether Mr. Prebushewski has complied with the provisions of s. 37 of the Act in making his application to set aside the default judgment. [ 7 ] Pursuant to s. 7 of the Act , a summons was issued in this matter, on the basis that Mr. Prebushewski may have a valid claim.

Therefore, on this application, the Court must only determine whether Mr. Prebushewski has a reasonable excuse for not appearing on the trial date. [ 8 ] Mr. Prebushewski’s affidavit in support of his application indicates that he did not attend court at the required time because of “funerals of aunts and uncles and close friends around this time” and because he was “mixed up with dates because of family issues (funerals)”. [ 9 ] During the hearing of the application, Mr. Prebushewski advised the Court that he had mistakenly marked the trial date on his calendar as November 20, instead of November 12.

As soon as he realized that he had the date wrong, he phoned the clerk’s office and commenced his application to set aside the default judgment. He stated that at the time of the trial date in November, there were several friends and people he knew who had passed away, and that he and his wife were on the verge of splitting up. He said he was having much difficulty dealing with his wife’s anger and with the deaths of friends and relatives at about this same time.

He stated that he thought the trial was on November 20, acknowledged that he was mistaken, and asked the Court to allow him to have his day in court. [ 10 ] Mr. Saccucci appeared on the return date of the application and made submissions to the Court. He argued it was Mr. Prebushewski’s fault that he got the trial date wrong, and that there was no fault on his part. As well, he indicated that there were several funerals for friends that he and Mr. Prebushewski had in common, but that some of those funerals were held shortly after the trial date of November 12, and that Mr.

Prebushewski did not attend those funerals. Mr. Saccucci indicated that he did attend at the Provincial Court Building on November 12, but was late in arriving. By the time he arrived, default judgment dismissing the claim had been granted. [ 11 ] What constitutes a “reasonable excuse” must be considered on a case by case basis. Forgetfulness alone will not normally justify a failure to meet court obligations. However, in this case, the Court is satisfied that Mr. Prebushewski intended all along to proceed with his claim.

He did not appear on the trial date because he inadvertently recorded the wrong date on his calendar. As soon as he realized he had missed the trial date, he diligently pursued this application. In addition, Mr. Prebushewski appears to have been distracted with serious personal matters, including the deaths of friends and relatives, but more particularly, with the potential breakdown of his marriage, at the time of the scheduled trial date. Accordingly, the Court is satisfied that Mr.

Prebushewski had a reasonable excuse for failing to appear at the trial. [ 12 ] Although each case turns on its own facts, this matter bears some similarity to Horosko v Huber [1993] SJ No 183 (QB) , where Baynton J. ordered a new trial on finding that the defendant intended to appear and defend the claim against him, inadvertently forgot to attend on the date specified in the summons, and diligently pursued his appeal.

In that case, a new trial was ordered, but on conditions that would prevent the decision from setting a dangerous precedent by creating an incentive for litigants to deliberately ignore a Small Claims summons. [ 13 ] While the Court is satisfied that the test of “reasonable excuse” has been met, it is clear that Mr. Saccucci has been inconvenienced and that there will be some delay in having the trial of this matter heard. In all of the circumstances, the default judgment will be set aside, and a new trial will be scheduled, on the following terms and conditions: 1. Mr.

Prebushewski shall within 30 days of this decision pay costs to Mr. Saccucci, respecting the first trial date and the return date of this application, fixed at the sum of $200.00. This amount may well have been higher; however, the Court notes that Mr. Saccuci had not filed any of his required material by the trial date, which, in itself, may well have necessitated an adjournment; 2. Mr. Prebushewski shall within 30 days of this decision provide the Court with proof of payment having been made to Mr. Saccucci; and 3.

If the above amount is not paid within the stipulated time, this application will be deemed dismissed, the default judgment granted November 12, 2015 will be confirmed, and judgment will issue in favour of Mr. Saccucci in the amount of the costs ordered in this decision. [ 14 ] Finally, assuming that the above conditions are met and a trial date is scheduled, Mr. Saccuci is ordered to file with the Court, and to provide to Mr. Prebushewski, a Dispute Notice, Document List, and all relevant documents 30 days prior to the trial date. ____________________________ V.L. Monar Enweani, J