Irvin Goodon Industries Ltd. - v. -, 2012 SKPC 74

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 074 Date: April 26, 2012 File: 79/11 Location: Maple Creek, SK _____________________________________________________________________________ Between: Irvin Goodon Industries Ltd. - and - Shane Conrad Scott Mr. Geoffrey Edwards For the Plaintiff (Respondent) Mr. Shane Conrad Scott For the Defendant (Applicant) _____________________________________________________________________________ DECISION ON AN APPLICATION UNDER S. 37 OF THE SMALL CLAIMS ACT, 1997 L.A.

MATSALLA, J _____________________________________________________________________________ [ 1 ] This is an application pursuant to s. 37 of The Small Claims Act, 1997 , S.S. 1997, c. S-50.11 (the “ Act ” ) to set aside a default judgment issued on December 13, 2011.

[ 2 ] The plaintiff company commenced an action against Mr. Scott to recover the amount of $9,232.00 with interest and costs in respect of a contract between the parties in which, according to the claim, the plaintiff agreed to construct a building for the defendant. The defendant was to pay a deposit, the further amount of $11,000.00 on delivery of the materials and a final payment of $9,232.00 upon completion. The Summons was issued on September 7, 2011 and made returnable on December 8 in Maple Creek. The wording of the Summons reads as follows: 3.

The purpose of your court attendance is for a first appearance. 4. If you do not appear at that time and place, judgment with costs may be made against you in your absence. 5. At the time and place indicated above, you will be given the opportunity to state your position on the claim. IF THE CLAIM IS CONTESTED A HEARING WILL NOT BE HELD ON THIS DATE –THAT IS, IF YOU INTEND TO DEFEND THE CLAIM NO WITNESSES OR EVIDENCE WILL BE HEARD AT THIS TIME . The court will set a date further in the future for a case management conference or a trial to be heard.

The bold print above is as that print appeared in the original document. [ 3 ] On December 1, Mr. Scott filed a Dispute Note in which he claimed that since the building was not completed he was not prepared to pay the remaining amount under the contract. Then, in Court on December 8, 2011, proof of service upon Mr. Scott was filed however he did not attend in Court and default judgment was granted in favour of the plaintiff as follows: 1. Claim - $ 9,232.00 2. Interest from May, 2010 to December 8, 2011 - $ 3,508.16 3.

Costs - $ 93.00 TOTAL: $12,833.16 In the written contract between the parties the defendant had agreed to pay interest on the amount owing. The Certificate of Judgment was sent to each of the parties. [ 4 ] On January 10, 2012, Mr. Scott made application for a Summons to set aside the judgment under s. 37 . The date set for the return of the Summons was March 8, 2012 and on that date the parties appeared and submissions were made. The Applicant [ 5 ] Mr.

Scott admitted that he had been served by fax and that he was aware of the claim but he took the position that his wife was looking after the matter and that since she had completed a Dispute Note (a blank copy of which was included with the material served upon him) he did not have to appear in Court. [ 6 ] It was his position that the building was built with three sliding doors but that the doors did not have any sheeting even though the sheeting was to be supplied under the contract.

The Respondent [ 7 ] The representative for the plaintiff told the Court that on December 5, 2011 at about 9:40 a.m. - some three days before the return date, he had spoken to the defendant and told him that he had to attend Court. According to Mr. Edwards, Mr. Scott confirmed that he was aware of the hearing date. Mr. Edwards filed a copy of an email that he had sent to Mr. Scott at 10:00 a.m. on the same day, in

which he proposed to request an adjournment of the matter provided that some money was wired to him that same day. [ 8 ] Mr. Edwards argued that at no time had the defendant advised that he was not prepared to pay the amount owing unless the repairs were undertaken. The repairs, according to the plaintiff, amounted to two pieces of metal each of which was three feet wide and fourteen feet high. Both pieces were worth $100.00. He went on to say that the cost of installation would likely be $400.00. Reply [ 9 ] Mr. Scott agreed that the cost of the material and the installation would likely be as Mr.

Edwards had estimated. [ 10 ] As a result of discussions in Court, the parties agreed to adjourn the application so that further discussions could take place. [ 11 ] On April 12, it was evident that a resolution was not possible even though the plaintiff was prepared to forego interest on the outstanding balance provided the principal amount was paid. Mr. Edwards acknowledged that the material may not have been supplied. The plaintiff was prepared to supply and install the material as well. A copy of the email referred to above was filed with the Court. The Law [ 12 ] Section 37(1)(

c) of the Act provides that a case can be reheard if it can be said: (

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, as the case may be. The applicant must satisfy both requirements. The following provision applies to the requirement:

(3) For the purposes of subclause (1)(c)(ii), the defence is not valid if the judge considers that the defence: (

a) is without reasonable grounds; (

b) discloses no triable issue; or (

c) is frivolous, vexatious or an abuse of the court’s process. If one of the required grounds is present then a defence is not valid. At the end of the day, the Court has the authority to deal with the application in accordance with the following provisions set out in s. 37 :

(4) On the return date of a summons issued pursuant to subsection (1), the judge may set aside the judgment on any terms as to costs that the judge considers appropriate and give any directions that the judge considers necessary respecting the rehearing of the matter.

(5) If the judgment is set aside pursuant to subsection (4), any certificate of judgment that is entered pursuant to subsection 35(3) is vacated. Analysis “...reasonable excuse for not appearing... ”

[ 13 ] With respect to the reasonableness of Mr. Scott’s excuse for not attending in Court on the return date, the following facts must be considered: 1. the Summons clearly requires his attendance and states that if he does not attend, judgment with costs may be made against him “in (his) absence”, 2. he was aware of the court date and he had discussions with Mr. Edwards as early as December 5, respecting the requirement to attend Court, and 3. Mr. Edwards provided him with an email that stated that he would not seek a postponement of the court appearance unless Mr. Scott made a cash payment. Mr.

Scott argues that he believed that simply filing a Dispute Note would obviate the need to respond to the Summons in Court yet the Summons makes no reference to the filing of a Dispute Note or the possibility that he could in any other way refrain from attending Court. [ 14 ] I must determine if Mr. Scott’s excuse for not attending would be acceptable to a reasonably prudent person. Clearly, Mr.

Scott is not a lawyer or otherwise trained in the law, however this is not a case in which he did not attend Court because he was not informed as to the return date [1] or forgot about the court date [2] or had health problems [3] . He made a conscious decision to not attend. An average person would not ignore an appearance that is required in law by simply sending the Court a piece of paper. In all of the circumstances his reason for failing to attend is not reasonable. That disposes of the matter however, if it could be said that Mr.

Scott did have a reasonable excuse, I will deal with the second requirement. “...valid defence to the claim... ” [ 15 ] Mr. Scott suggests that since the plaintiff did not provide material valued at $100.00 and labour to install the material (valued at about $400.00) he was justified in withholding the remainder owing in the amount of $9,232.00. Apparently Mr. Scott was not present when the plaintiff left the site for the last time. Had he been in attendance or had he discussed the matter with the plaintiff, it seems likely that the dispute could have been resolved quickly. In any event, Mr.

Edwards acknowledges that two pieces of metal may not have been supplied and installed. In the circumstances, Mr. Scott may have a triable issue in this case although withholding a much larger sum of money because of such an insignificant shortfall in the contract comes dangerously close to the abuse of this Court’s jurisdiction to order the rehearing of this case. Conclusion [ 16 ] I cannot conclude that Mr. Scott has satisfied the Court that the original judgment should be set aside.

The intent of the Act is to enable persons to represent themselves and to enable cases to proceed on the merits without regard to strict compliance with formalities. Therefore, in light of Mr.

Edward’s candid admission that the contract had been completed except for the supply and installation of two pieces of metal, it would be unjust to permit the original Certificate of Judgment to stand and so I amend the original Certificate of Judgment dated December 13, 2011 as follows: Claim ($9,232.00 - $500.00) - $8,732.00 Interest from May 18, 2010 to December 13, 2011 - $ 109.41 Costs - $ 93.00 Total: $8,934.41 [ 17 ] The amended Certificate of Judgment shall be forwarded to the parties. ________________________

L.A. Matsalla, J [1] Sente v. McKercher, [2008] S.J. No. 807 (Q.B.) [2] Horosko v. Huber, [1993] S.J. No. 183 (Q.B.) [3] Parenteau v. Michayluk, [1990] S.J. No. 260 (C.A.)