2016 SKPC 093, 2016 SKPC 093

PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 093 Date: July 11, 2016 File: 155/15 Location: Regina, Saskatchewan Henry Lunn Operating a business under the trade name and style of City Bobcat Services -and - Sean Phillips Henry Lunn For the Plaintiff Nathan Phillips For the Defendant FIAT P. DEMONG, J [ 1 ] Henry Lunn has brought action for recovery of goods and services provided to the defendant in the course of a basement excavation. That action was commenced in early 2015 and proceeded to case management in July of 2015.

The matter was not settled, and the matter was set down for trial commencing January 25 th of 2016 and ran for three long days. My decision was reserved and judgment with written reasons was rendered March 31 st of 2016. In that decision I concluded that the parties had been mistaken as to the manner in which damages should have been proven and concluded that I would hear additional evidence on the issue of damages and I provided the parties guidance on the manner in which that evidence could or should be presented.

[ 2 ] On April 18 th , 2016 the Court received correspondence from counsel for the defendant Sean Phillips disagreeing with my decision to seek further evidence on damages and suggested that he ‘sought the opportunity to present argument and affidavit evidence respecting’ prejudice and other matters relevant to such determination’. He also sought an extension of time within which to file his materials for the damages assessment. I refused Mr.

Phillips’ request to have me reconsider my decision to call for further evidence on damages but reluctantly extended the time line for the defendant’s filing of documentation and a witness list in light of his assertion that in doing so the defendant may be able to resolve the matter without further participation of the Court. The matter was not resolved and the trial must now resume. The timeline for filing of the defendant’s documentation and witness list had been extended to June 29 th , 2016. [ 3 ] On June 15 th , 2016 Mr.

Phillips forwarded further correspondence to the Court, this time seeking an order for production of a significant number of documents from the plaintiff regarding his business records for essentially all business transactions that he may have participated in for the year of 2014. These would include those business transactions unrelated to the interactions the plaintiff had with the defendant.

He then sought further leave (if production was granted) to bring an application to adduce additional evidence on ‘matters which had been determined at trial’, and again requested a further extension of time within which to file his documentation in relation to the matter of damages. [ 4 ] The request for relief by the defendant to introduce additional information was unclear.

By order dated June 15 th , 2016 I agreed to hear his application in respect of additional document production by the plaintiff, and for the introduction of additional evidence which presumably related to matters which had already been decided. I declined to extend the time in which the defendant was obligated to file his materials and witness list in respect of the impending damages assessment.

I ordered the defendant to file with the Court, with proof of service, the affidavits material and briefs of law which he intended to rely on in support of his application. [ 5 ] The Court received yet another letter from Mr. Phillips’ lawyer. In that correspondence the defendant now requests a retraction of the amendment that he had made to his statement of defence during the course of the trial. The amendment that the defendant refers to was in fact a withdrawal of certain counterclaims advanced by way of set-off.

That withdrawal in turn was made shortly after the Court advised the defendant that he would need evidence to support the set offs that were claimed. Mr. Phillips has also sought to call expert testimony in support of the resurrected defences, and also to address certain issues that were dealt with at the original trial.

The request is brought because ‘it directly relates to the request made by the plaintiff on April 18 th , 2016 to provide affidavit evidence and argument to the Court with respect to reopening the trial which request was rejected by the Court on April 19 th , 2016.’ [ 6 ] In that letter, counsel expresses his opinion of the truthfulness of the plaintiff at trial; his suspicions relating to other pieces of evidence, and the plaintiff’s credibility on certain aspects of his testimony. [ 7 ] On June 30 th , 2016 the Court received yet another letter from defence counsel enclosing an affidavit sworn by his client, which is on information and belief.

In essence, he avers to the fact that he was told by his lawyer that his lawyer was advised by a third party that the third party’s review of certain company records do not disclose a purchase of steel by the plaintiff at or about the time that steel was incorporated into the defendant’s basement. [ 8 ] I would note in passing that while the documents purport to be sent to the plaintiff by e-mail, there is, contrary to my order, no proof of service appended to any of these letters or the affidavit. [ 9 ] The defendant seeks relief on a number of grounds.

The only evidence the Court has in relation thereto is a four paragraph affidavit wherein the defendant says that he believes that his lawyer believes that someone who he had a conversation with checked certain accounting records. That is the totality of the evidence before me for all of the relief that the defendant seeks. No brief of law was submitted in support for any of the rather extraordinary relief sought, again, notwithstanding that the defendant was directed to file any brief of law he might rely on in support of the relief sought.

[ 10 ] I do not have to cite case law for the now accepted proposition that the central objectives of The Small Claims Act, 1997 is to create a Court which will provide a timely, cost effective, and efficient means to resolve relatively simple and relatively nominal monetary claims. Implicit in this purpose is the concept of proportionality. In the vast, and I do mean vast, number of cases, matters in this Court are resolved without the need for serial interlocutory applications.

In the vast, and again, I do mean vast, number of matters, a request to the Court for direction or interim relief is handled in a simple and straight forward fashion. A request for a direction or the assistance of the Court is sought by correspondence and the reasons for that request are set forth therein. The Court will, either on an ex parte basis or upon directing a hearing, resolve the matter to the satisfaction of the parties.

In that regard, the Court has the freedom to direct the practice and procedure of the Court to suit the needs of individual litigants. [ 11 ] For reasons that I cannot fathom, this relatively simple process does not work in the instant circumstances.

I can no longer sanction, either in this matter, or on other matters into the future, counsel providing multiple letters to the Court seeking multiple orders, presumably on an ex parte basis, with little if any evidence in support other than counsel’s ‘suspicions’ and ‘concerns’ based on vague allegations as to what the law might be but with no legal authority cited for the proposition put before the Court, which are often sought on short notice with a corresponding request for an adjournment also sought on short notice. [ 12 ] To that end, the damages assessment portion of this trial shall be set for two days Monday, January 30 th , 2017 and Tuesday, January 31 st , 2017 commencing at 9:30 a.m. [ 13 ] If the Defendant seeks to bring application in support of any or all of the relief that I have identified in my June 15 th , 2016 order, or as set forth in his June 29 th , 2016 correspondence, or on any other matter in this proceeding, that relief shall be consolidated into a single application. [ 14 ] That application shall:

a) identify precisely each remedy or form of relief that is being sought; and

b) state the grounds to be argued for each remedy including specific reference to any

section of any enactment to be relied upon; and

c) cite the case law in support of which the remedy is being sought and attach copies of that case law with the pertinent portions of those cases highlighted for the benefit of the Court; and

d) ensure that any affidavit evidence tendered on information and belief in support of each of the remedies sought conform to Rule 13-30 as set forth in The Queen’s Bench Rules for Saskatchewan; and

e) if an omnibus affidavit is filed in support of more than one remedy being sought, identify those portions of that affidavit which speak to each of the respective remedies being sought. [ 15 ] These materials shall be filed with the Court in duplicate. One set of these documents shall be identified as for the Court and one shall be identified as for the plaintiff. [ 16 ] The materials shall be filed with the Court on or before 4:00 p.m. on August 31 st , 2016. This filing date is made on a peremptory basis. Absent extraordinary circumstances, leave will not be granted for an extension of time for filing.

The materials shall be complete. The Court will not countenance the filing of additional materials, other than case law, after the filing date unless it is in response to materials provided by the plaintiff.

[ 17 ] Immediately after filing of these materials the plaintiff is free to attend upon the Court clerk to obtain his copy of these materials. [ 18 ] Upon review of the materials by the Court, a time will be set for the plaintiff to file any materials in response to the several grounds of relief sought by the plaintiff followed by a date for the hearing of these matters. [ 19 ] Should the Plaintiff be successful on some or all of its application, the trial dates as set forth above may be vacated by the Court, and new dates will be provided. Dated at Regina, Saskatchewan the 11 th day of July, 2016. _________________________________ P. Demong, J