r v. G, 2015 NBCA 20

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 6-14-CA/7-14-CA B E T W E E N : MARC LEGER APPELLANT E N T R E : MARC LEGER APPELANT - and - - et - G & G CARNIVAL AMUSEMENTS INC. RESPONDENT G & G CARNIVAL AMUSEMENTS INC. INTIMÉE A N D B E T W E E N : E T E N T R E : MARC LEGER APPELLANT MARC LEGER APPELANT - and - - et - FREDERICTON EXHIBITION LIMITED and MARITIME MIDWAYS INC. RESPONDENT FREDERICTON EXHIBITION LIMITED et MARITIME MIDWAYS INC. INTIMÉES Leger v. G & G Carnival Amusements Inc. et al., 2015 NBCA 20 Leger c.

G & G Carnival Amusements Inc. et autres, 2015 NBCA 20 CORAM: The Honourable Justice Larlee The Honourable Justice Quigg The Honourable Justice Green CORAM : l’honorable juge Larlee l’honorable juge Quigg l’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: December 9, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 9 décembre 2013 History of Case: Historique de la cause :

Decision under appeal: 2013 NBQB 401 Décision frappée d’appel : 2013 NBQB 401 , 2013 NBBR 401 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: February 19, 2015 Appel entendu : le 19 février 2015Judgment rendered: April 9, 2015 Jugement rendu : le 9 avril 2015 Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : l’honorable juge Larlee Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Green Counsel at hearing: For the appellant: George A.

McAllister, Q.C. For the respondent G & G Carnival AmusementsInc.: Sheila N. Lanctôt For the respondent Fredericton Exhibition Limited: Shivani Chopra For the respondent Maritime Midways Inc.: Steven R. Barnett Avocats à l’audience : Pour l’appelant : George A. McAllister, c.r. Pour l’intimée G & G Carnival Amusements Inc. : Sheila N. Lanctôt Pour l’intimée Fredericton Exhibition Limited : Shivani Chopra Pour l’intimée Maritime Midways Inc. : Steven R. Barnett THE COURT The appeal is allowed with costs. LA COUR L’appel est accueilli avec dépens. The judgment of the Court was delivered by

LARLEE, J.A. [ 1 ] This appeal deals with the refusal of a judge of the Court of Queen’s Bench to convert a consolidated “small claims” action under Rule 80 of the Rules of Court to a Rule 79 action or an ordinary action. The motion decision is reported at 2013 NBQB 401 , 414 N.B.R. (2d) 89. [ 2 ] The appellant, Marc Leger, alleges he suffered a fractured ankle on September 7, 2009, when he entered into an amusement for children to rescue his daughter who was distressed. He also alleges he was not able to continue with his employment at Bestway Ventilation as a result of his injuries. On July 7, 2011, Mr.

Leger filed an action pursuant to Rule 80 of the Rules of Court against Fredericton Exhibition Ltd., where the amusement was located, and Maritime Midways Inc., the operator of the midway containing the amusement. On November 30, 2011, he filed another Rule 80 action, this one against G & G Carnival Amusement Inc., the owner of the amusement. The actions were consolidated upon consent of the parties, to be tried together in December 2013. [ 3 ] Mr. Leger claimed $30,000, the maximum amount of damages available pursuant to Rule 80.02(1). On November 28, 2013, Mr.

Leger filed a motion pursuant to Rule 80.03 requesting the actions be converted and proceed in accordance with Rule 79 or the ordinary procedure because damages significantly exceeded $30,000. [ 4 ] On December 6, 2013, a judge of the Court of Queen’s Bench heard the motion and dismissed it. The motion judge held Mr. Leger had abandoned his claim for any amount over $30,000 by commencing his actions under Rule 80, and he “knew or should have known that his damages might exceed the $30,000 limit before he commenced his Rule 80 claims” (para. 8). [ 5 ] Mr.

Leger appeals from this decision on a question of law alone, relying on four grounds of appeal, namely that the motion judge: (1) erred in that she did not correctly interpret and apply Rule 1.02, Rule 1.03(1), (2), and (3), Rule 2.01, 2.02, 2.03 and 2.04, Rule 80.02 and in particular Rule 80.02(6), 80.02(7), 80.02(8), 80.02(9), 80.02(12), Rule 80.03, Rule 80.04(3), 80.04(4)(d), 80.04(6)(a), and Rule 80.10(5); (2) failed to correctly interpret and apply the principles governing the

interpretation of statutes and regulations; (3) erred in failing to correctly interpret and apply Rule 80 and the other applicable Rules of Court harmoniously in a manner by which the appellant could receive a full measure of his damages; and (4) erred in failing to consider that there is no prejudice to the respondents because they remain able to marshal the evidence in their favour. [ 6 ] The rule most pertinent to this appeal is Rule 80.03, which reads as follows: 80.03 Variation of Procedure At any stage of an action commenced under this rule, a judge may order that the action proceed in accordance with the rules applicable to an ordinary action or in accordance with Rule 79 where the judge considers it appropriate in the circumstances. [Emphasis added.] 80.03 Modification de la procédure À toute étape d’une action introduite sous le régime de la présente règle, un juge peut ordonner que l’action se poursuive conformément aux règles régissant l’action ordinaire ou conformément à la règle 79, s’il l’estime indiqué dans les circonstances. [C 'est moi qui souligne.] [ 7 ] The use of the word “may” indicates that whether to make the order or not is a discretionary decision.

This Court has repeatedly reiterated a discretionary order may be interfered with on appeal only if: the order is founded upon an error of law, an error in the application of the governing principles, or a palpable and overriding error in the assessment of the evidence; or if the order is unreasonable in the sense that nothing in the record can justify it: The Beaverbrook Canadian Foundation v. The Beaverbrook Art Gallery , 2006 NBCA 75 , 302 N.B.R. (2d) 161, at para. 4 ; Williamson et al. v. Gillis et al. , 2011 NBCA 53 , 374 N.B.R. (2d) 311, at paras. 13-15 ; Shanks v. Shay et al. , 2015 NBCA 2 , [2015] N.B.J.

No. 7 (QL), at para. 9 ; The Estate of Caroline J. Higgins v. Arseneau , 2014 NBCA 65 , [2014] N.B.J. No. 283 (QL), at para. 40 ; Grew v. Milemore Holdings, Fullerton et al. , 2014 NBCA 33 , 421 N.B.R. (2d) 316, at paras. 10-11 ; Dr. D. Anthony Wade v. Her Majesty the Queen in Right of the Province of New Brunswick, as represented by the Minister of Health , 2013 NBCA 55 , 411 N.B.R. (2d) 207, at para. 19 ; Sangster v. Sangster , 2014 NBCA 14 , 416 N.B.R. (2d) 397, at para. 3 .

[8] However, the criteria for exercising discretion are legal ones and their misapplication can raisequestions of law alone that are subject to appellate review: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC71, [2003] 3 S.C.R. 371, at para. 43. [9]

Section 17 of the

Interpretation Act, R.S.N.B. 1973, c. I-13 is instructive as to how to approachthe

interpretation of the Rules of Court (pursuant to Rule 1.03): 17 Every Act and regulation and everyprovision thereof shall be deemed remedial,and shall receive such fair, large and liberalconstruction and

interpretation as best ensuresthe attainment of the object of the Act,regulation or provision. 17 Toute loi, tout règlement et toutedisposition de ceux-ci sont réputésréparateurs et doivent faire l’objet del’interprétation large, juste et libérale, la pluspropre à assurer la réalisation de leurs objets. [10] In Small v. New Brunswick Liquor Corporation, 2012 NBCA 53, 390 N.B.R. (2d) 203,Robertson J.A. explains: “the

interpretation of an enactment must be made according to a textual, contextual and purposive analysis inorder to find a meaning which is harmonious with the enactment as a whole” (para. 31). Similarly, in Royal & Sun Alliance InsuranceCompany of Canada v. Raymond, 2014 NSCA 13, [2014] N.S.J. No. 42 (QL), Bryson J.A. comments on Nova Scotia’s small claim andsimplified procedure rule: “[t]he meaning of the Small Claims Act and Rule 57 is a matter of statutory

interpretation. [...] [T]he words ofthe statute must be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, theobject of the Act and the intention of the Parliament’, (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27,[1998] S.C.J. No. 2 (QL); also see: Keizer v. Slauenwhite, 2012 NSCA 20, [2012] N.S.J. No. 89 (QL), at para. 7)” (para. 24). See alsoThe Estate of Caroline J. Higgins v. Arseneau, at paras. 29-30. [11] The motion judge’s analysis is brief, so for the purposes of this decision I will reproduce it here: 6 Rule 80 reads, in part, as follows: 80.02

(6) A person may not divide a cause of action into 2 or more actions for the purpose of bringing the actions under this rule. ...

(8) A party who abandons any part of a claim or counterclaim forfeits the amount abandoned and is not entitled to recover it in the courtunder this rule or any other rule. 7 Leger argues that these rules are procedural and cannot be interpreted so as to deprive him of his right to recover the full amount ofhis claim. This argument ignores the purpose of the Rule. It is designed to allow laymen to prosecute their action in a simplifiedprocedure. It does not require Affidavits of Documents, Discoveries or Pre-trial Briefs.

In theory at least, the Parties are able to have theirday in court earlier than if they had started a regular action and they are spared the expense of having to have a lawyer. In exchange forthese advantages, they are compelled to limit their claim to $30,000. 8 In the case before me, I am satisfied that Leger knew or should have known that his damages might exceed the $30,000 limit beforehe commenced his Rule 80 claims. 9 Rule 80.02(8) uses the words “abandons” and “forfeits”. The meaning of these words is clear even to a layman. In addition it refersto “... this rule or any other rule” (emphasis added).

When combined with the wording of 80.02(6), quoted above, which tells litigantsthat they “may not divide a cause of action into 2 or more actions”, the concept of a $30,000 limit is made clear. It cannot becircumvented by starting multiple actions and it cannot be circumvented by converting the action to a different kind of action (“any otherrule”). [paras. 6-9]

[ 12 ] The motion judge did not begin her analysis with an examination of Rule 80.03, but referred to Rule 80.02(6): that a litigant cannot split its cause of action into two or more actions to bring it under Rule 80. I do not believe Rule 80.02(6) is relevant (see Kameka v. Williams , 2009 NSCA 107 , [2009] N.S.J. No. 470 (QL) regarding the application of a similar provision in Nova Scotia). There is no allegation that splitting an action is what was done here.

Similarly irrelevant, Rules 80.02(7) and (8) provide that a litigant can abandon part of his or her claim to bring it within Rule 80, and thereby forfeit the abandoned amount. The appellant admits he originally believed his damages to be $42,000, and knew he could only recover a maximum of $30,000 by proceeding under Rule 80. Subsequently, he asked to have his consolidated claim converted to an ordinary proceeding because, just prior to the Rule 80 hearing, his damages were projected to far exceed the $30,000 jurisdiction of the Rule and the originally calculated $42,000.

Is he precluded from benefiting from a Rule 80.03 order simply because he originally reduced his claim to commence an action under Rule 80? Should he have known his damages would far exceed $30,000 from the outset? I think not. [ 13 ] In my view, the motion judge did not provide sufficient reasons for her decision to refuse the motion in accordance with Rule 80.03.

She should have explained why justice would not be done by applying that rule, and examined any potential prejudice suffered by the respondents to flesh out that explanation. [ 14 ] It is clear that Rule 79 and small claims procedures provide simplified means to afford access to justice. In Acadie-Presse Ltée v. Blanchard , 2013 NBCA 58 , 409 N.B.R. (2d) 152, Drapeau C.J.N.B. explains: The action was litigated under Rule 79 of the Rules of Court. This rule provides a simplified procedure for the resolution of certain types of litigation.

Its objective is to facilitate access to justice, an objective which the rule seeks to attain through measures designed to keep legal costs at a minimum and to accelerate the dispute resolution process. These measures include the elimination of certain pre-trial procedures and the option of proof by way of affidavits of witness and expert reports.

Where these documents and the pleadings deal with the matters in dispute in a clear and intelligent manner, the parties, their counsel, the court and the justice system all benefit. [para. 3] [ 15 ] In a similar vein, Rule 80 provides an expeditious procedure and surely its purpose is also to facilitate access to justice. To say on the other hand that a litigant must be punished monetarily for not having correctly divined the amount of his or her damages from the outset seems counterintuitive. In LeBlanc v.

Doucet and the New Brunswick Power Corporation , 2012 NBCA 88 , 394 N.B.R. (2d) 228, Drapeau C.J.N.B. encourages judges to facilitate access to justice for the citizens of our province: “[a]s the Chief Justice of Canada, the Honourable Beverley McLachlin, regularly reminds us, access to justice is one of the cornerstones of the rule of law, and it behooves courts, whenever possible, to do their

part in fashioning means conducive to its improvement. Courts must walk the talk” (para. 6). [ 16 ] In this case, the undisputed affidavit evidence of Mr. Leger, in consultation with his lawyer, was that he realized his claim had increased from $42,000 (which he knew in a Rule 80 proceeding could only net him $30,000) to $85,000 based generally on his loss of income and his medical condition. There was merit to his request. Surely if this order is not granted Mr.

Leger would be denied access to justice to try and prove his entire claim for damages. [ 17 ] The respondents led no evidence they would be prejudiced by a conversion to ordinary proceedings.

They simply made generic arguments that they were ready for the hearing, the motion to convert was sprung on them, and granting this type of order might result in motivated litigants hemorrhaging the system by potentially starting an action under Rule 80, converting it to a Rule 79 action and then to an ordinary action. [ 18 ] The motion judge misapplied the law and hence made an error in law for which the standard of review is correctness. Since the order is clearly wrong the question then arises as to whether we should make the order that should have been made. [ 19 ] In Johnson v.

State Farm Fire and Casualty Company , 2015 NBCA 4 , [2015] N.B.J. No. 13 (QL), at paras. 19-20 , this Court decided pursuant to Rule 62.21(1) to make the decision or order that ought to have been made in first instance. See also J.H. v. T.H. , 2014 NBCA 52 , 422 N.B.R. (2d) 388, at para. 11 , where the Court applied the principle of proportionality and decided the issue itself instead of remitting it to the Court of Queen’s Bench, having, as in Canadian Union of Public Employees, Local 1773 v. Town of Shediac , 2005 NBCA 20 , 280 N.B.R. (2d) 324, the means at its disposal to decide the matter.

For an explanation of how certain provinces, including New Brunswick, have codified the principle of proportionality (Rule 1.02.1), see Canadian Union of Public Employees, Local 821 v. Vitalité Health Network (Zone 1B) , 2015 NBCA 3 , [2015] N.B.J. No. 14 (QL), per Drapeau, C.J.N.B., at paras. 55-59.

[ 20 ] I am of the view that remitting this matter to the Court of Queen’s Bench, to have the order made that ought to have been, would be wasteful of the parties’ time and money. Therefore, in accordance with Rules 1.02.1 and 62.21(1), I would order, pursuant to Rule 80.03, that the consolidated action proceed in accordance with the rules applicable to an ordinary action. [ 21 ] I would allow the appeal and make one order of costs against the three respondents in favour of the appellant, in an amount which I would fix at $2,500. ____________________________________ M.E.L. LARLEE, J.A.

WE CONCUR: ___________________________________ KATHLEEN A. QUIGG, J.A. _____________________________________ BRADLEY V. GREEN, J.A.