Poole Properties Ltd. - v. -, 2015 SKPC 111

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: July 22, 2015 Citation: 2015 SKPC 111 File: SC#109 of 2014 Location: Saskatoon _____________________________________________________________________________ Between: Poole Properties Ltd. - and - Mark Stevens o/a Wiseguys Mattresses M.R. Scharfstein For the Plaintiff S.R. Spencer For the Defendant _____________________________________________________________________________ FIAT Q.D. AGNEW , J _____________________________________________________________________________ [ 1 ] This matter came before me on June 23, 2015 at the request of the plaintiff.

Trial was scheduled to commence on June 24. Apparently during the course of discussions between counsel, it had emerged that plaintiff’s counsel placed a different

interpretation on a sentence in the defence than did the defendant; indeed, the defendant intended to call evidence which, in the plaintiff’s view, contradicted the statement in the defence; as a result, the plaintiff would have to call additional evidence not planned for. The plaintiff was therefore requesting an adjournment in order to arrange for such evidence.

[ 2 ] The statement in question is as follows: 3. The Defendant admits: . . . (

c) That the Fire occurred when an unknown person set fire to mattresses stored at the rear of the Building. [ 3 ] At my invitation, the defendant submitted a draft amendment to his defence, indicating in clearer language the

interpretation he intended to place on that statement. The proposed amendment is as follows: 3. The Defendant admits: . . . (

c) That the Fire occurred when an unknown person set fire to garbage and wood pallets from adjacent premises not leased by the Defendant, or garbage that otherwise accumulated behind the Building, which caused the mattresses stored at the rear of the Building to catch fire. [ 4 ] I adjourned the trial, invited the defendant to apply to amend his defence and gave the plaintiff an opportunity to respond.

The defendant has accordingly filed the proposed amendment as indicated; the plaintiff has objected to the proposed amendment. [ 5 ] The defendant indicates, through his counsel, that he does not believe that an amendment is necessary: that is, that there is no significant difference between the original pleading and the proposed amendment. Without knowing the specifics of the parties’ respective cases, it is impossible for me to assess the accuracy of that proposition.

On the face of it, there is a difference between the two statements; the significance is, necessarily, not known to me at this time. [ 6 ] The defendant also takes the position that the original pleading did not constitute an “admission”. This statement is surely incorrect: the subject wording occurs as item (

c) in a list headed by the words, “The Defendant admits:”. It is difficult to see how it could be made any clearer that the statements listed thereafter were intended to be admissions. [ 7 ] The defendant’s counsel further asserts that if there is a difference between the original wording and the proposed wording, such that the former constitutes an admission that would not allow him to argue the latter, then such an admission was inadvertent. The plaintiff’s counsel takes the position that the defendant, inter alia , must satisfy the Court that the admission was inadvertent.

His submission on this point reads as follows: It is submitted that the Defendant has not satisfied his obligation to allow him to withdraw this admission. No evidence has been submitted as to the inadvertent nature of this admission other than for the Defendant’s counsel to simply assert that it was inadvertent.

[8] The defence was signed by the solicitors for the defendant, and from its wording I would presume that it was drafted bythem as well, rather than by their client.

It would seem, therefore, that the defendant’s solicitors would be in the best position to saywhether or not an admission was inadvertent; indeed, absent unusual circumstances, all the defendant would likely be able to say wasthat he had been advised by his counsel that it had been a mistake. [9] While as a matter of strict formality such an affidavit might be preferable, I find myself surprised by the suggestion fromplaintiff’s counsel that the statement by defence counsel, that the admission was inadvertent, is insufficient evidence.

He does notspecify what evidence he thinks would be sufficient to prove that it was inadvertent. Presumably it would be someone swearing to thatfact. However, if this is his suggestion, then it amounts to an accusation that defence counsel’s statement to me should not be trusted -that unless counsel, or someone else with knowledge of the facts, makes that statement under oath, I should not believe it. [10] Defence counsel, like plaintiff’s counsel, is an officer of the Court. I expect and require that counsel be forthright and honestin their representations to the Court.

When plaintiff’s counsel brought his application for adjournment, and indicated to me what thecourse of discussions had been that had led him to the application, I did not require that he file an affidavit confirming his statements;rather, I accepted that his statements would be honest. I am taken aback by the suggestion that I should not have the same confidence inthe statements of defence counsel.

In the absence of some reason not to accept the representations of counsel on matters which theycould reasonably be expected to know, I am willing to accept those representations. [11] It may well be that in the Court of Queen’s Bench, an affidavit from counsel as specified might be required; that counselmight well then be disqualified from acting as counsel on the application to amend. Small Claims Court, both by mandate and bypractice, tries to operate with less reliance on formality.

A certain degree of formality is necessary and required; indeed, counsel willtypically be held to a higher standard in this regard than will lay persons. Sometimes the lack of a full set of Rules of Court will lead touncertainty as to the proper procedure.

However, the position taken by plaintiff’s counsel on this point is, in my view, excessivelyformalistic. [12] The plaintiff also objects to the amendment on the basis that the legal test for withdrawing an admission, set out by our Courtof Appeal almost a hundred years ago, has not been met. “It is well settled in this Province that before admissions of fact in a pleadingcan be withdrawn, the party seeking to withdraw the same must satisfy the Court that the admissions were inadvertently made and werenot correct”: Chechik v Bronfman, (SK CA), [1924] 3 DLR 1065 [Chechik].

That principle was reaffirmed by theCourt of Appeal thirty years ago in Donison v Donison (1984), (SK CA), 35 Sask R 183 [Donison]. The first branchof the test has already been dealt with, above. I turn my remarks now to the second branch. [13] The principle was most recently reviewed by the Saskatchewan Court of Queen’s Bench in P. W. Lorch & Associates Ltd. vThe Government of Saskatchewan et al, 2015 SKQB 119 [Lorch]. That decision revealed a more nuanced approach to the issue.

Afterciting both Chechik and Donison, Zarzeczny J. went on to say: The underlying principle in all the cases referred to is that amendments to pleadings are granted or refused where there is no injustice tothe other side and they are necessary to determine the real issues, both factual and legal, that arise in the particular litigation at issue.(paragraph 19) It must always be remembered that a pleading is not proof of the facts plead [sic] --- a pleading is simply an assertion which, in duecourse, must be proven by evidence given at the trial.

While it is the case that withdrawal of an admission of fact puts the other party inthe position of having to prove it at trial . . . nevertheless, in this litigation, that evidence is available . . . (paragraph 23) [14] This appears to be the situation before me as well: the plaintiff is in a position to call evidence on the point, a fact I knowbecause the plaintiff’s application was for an adjournment of the trial precisely for that purpose. [15] Although counsel are held to a higher standard of formality than are lay persons, even in Small Claims proceedings, I thinkthe purposes of justice between the parties, based on the actual issues between them as opposed to errors in wording, would be betterserved by allowing the amendment.

This is in keeping with the comments of the Court in Lorch, as well as the mandate and practice ofSmall Claims procedures to get to the heart of parties’ disputes rather than becoming tied up in excessive formalisms. I accordingly

allow the amendment. [ 16 ] Finally, I would allow the amendment notwithstanding all of the above in any event. When the plaintiff became aware of the defendant’s position, the plaintiff had to make a choice. It could have proceeded with the trial, and argued against allowing the defendant to call any evidence which went against the admission in paragraph 3(

c) of the defence. If the plaintiff’s argument on this point had been successful, the defendant would have been left with the position of the pleading as originally framed and, if the Court took the plaintiff’s view of that admission, the defendant would presumably have been left unable to lead evidence contrary to it.

The plaintiff’s other option, however, and the one which he took, was to apply for an adjournment in order to call evidence to meet the defendant’s position as outlined by defence counsel - that is, as if the amendment requested either had been made or would be granted at trial. [ 17 ] In so doing, the plaintiff made an election from which he cannot now resile.

He chose the option of requesting an adjournment in order to meet the case which he understood the defendant planned to advance, rather than trying to meet that case on the scheduled trial date and argue at that time that the defendant should not be allowed to bring its evidence in such a manner. To allow him now to make that same argument, having received his adjournment, would make that adjournment pointless. Two days of court time would have been wasted, to no good purpose. [ 18 ] For all of the above reasons, the application to amend is allowed.

Any question of costs may be raised with the trial judge. ___________________________ Q. D. Agnew, J