Craig Johnson Applicant (Plaintiff) - v. -, 2017 SKPC 018

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2017 SKPC 018 Date: February 08, 2017 File: SC#17 [2016] Location: Saskatoon _____________________________________________________________________________ Between: Craig Johnson Applicant (Plaintiff) - and - Yao Yao and Lu Zheng Respondent (Defendants) Self Represented For the Plaintiff Self Represented For the Defendants _____________________________________________________________________________ FIAT R.D. JACKSON , J _____________________________________________________________________________ [ 1 ] Mr. Johnson brings application pursuant to s. 37 of The Small Claims Act , 1997 , SS 1997, c S-50.11 [ The Small Claims Act ]

to set aside the dismissal of his claim at trial by reason of his non-attendance. [ 2 ] The matter came on for trial October 12, 2016, before Agnew, J. The defendants attended together with two professional witnesses called in their defence, being their realtor and a building contractor. [ 3 ] The plaintiff was not present, nor were the two witnesses listed on behalf of the plaintiff on the Case Management Checklist. [ 4 ] After paging the plaintiff, the Court took an approximate 15 minute adjournment to allow extra time for the plaintiff to arrive.

During this interlude, the unusual step was taken to telephone the plaintiff directly at his residence to ascertain whether he would be attending. As confirmed by Mr. Johnson, he initially indicated to the clerk that he forgot and then called back advising that he was ill and would not attend. [ 5 ] The applicant submitted at the s. 37 hearing that he had mixed up the trial date believing it to be October 21 rather than October 12. As far as his illness was concerned, he indicated that he had the “24 hour flu” on the trial date for which he did not seek any medical advice or treatment. [ 6 ] The portion of

Section 37 of The Small Claims Act salient to this application provides: 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: . . . (

c) in the opinion of the judge: (

i) the party applying to set aside the judgment has a reasonable excuse for not appearing; . . . [ 7 ] In all the circumstances, the Court is not satisfied that the applicant has provided reasonable excuse for his absence on the trial date. As per the protocol, if a case does not settle at Case Management, the parties then mutually agree upon a trial date and then provide their written acknowledgment on the Case Management Checklist, which was in fact done in this instance. Notices of Trial with the date clearly shown are then given to each party for their records.

Accordingly, with these safeguards in place, this should not be a process where one party can simply state they did not attend trial by carelessly mixing up or otherwise mistaking the date. Litigants and witnesses must often make time from busy schedules and arrange their affairs well in advance and should expect, absent exceptional circumstances, that the trial will proceed on the date selected. [ 8 ] Furthermore, as noted, the applicant was actually phoned on the morning of trial by the Court alerting him to attend.

He ultimately chose not to do so, citing illness for which he received no medical attention or verification concerning same. [ 9 ] The application is dismissed accordingly. There is no order as to costs.

______________________ R.D. Jackson, J