Scharfstein Gibbings Walen Fisher LLP - v. -, 2018 SKPC 22

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: March 7, 2018 2018 SKPC 022 File: SC#642 of 2015 Location: Saskatoon _____________________________________________________________________________ Between: Scharfstein Gibbings Walen Fisher LLP - and - Lindsay Pataki Ex parte application by the plaintiff _____________________________________________________________________________ FIAT Q.D. AGNEW , J _____________________________________________________________________________ [ 1 ] The plaintiff commenced this action in 2015.

A Summons was issued on December 14, 2015, for a first return date of February 4, 2016. Prior to that date, the plaintiff advised the Court Clerk’s office that a payment arrangement had been entered into and that an adjournment sine die was therefore requested. [ 2 ] Later in 2016, the plaintiff contacted the Court ex parte , stated that the defendant had not made payments as agreed, and requested judgment on the basis of a signed consent Certificate of Judgment, which was filed at that time with the Court.

That request was refused on the grounds, inter alia , that the consent Certificate contained terms which cannot be in a Certificate of Judgment issued

by this Court. [ 3 ] The plaintiff then requested that the matter be brought back onto the Court’s docket. Before it could be heard, the plaintiff on August 10, 2016 advised the Court that a payment arrangement had again been made, and again requested that the matter be adjourned sine die . [ 4 ] The plaintiff has now contacted the Court again, advising that payments are in default and requesting judgment.

Filed with that application is the original consent Certificate of Judgment, a new (non-consent) Certificate of Judgment which again is not in the form used by this Court and which contains updated figures based on an affidavit also filed which outlines payment history, and an original copy of an agreement between the parties dated August 10, 2016. The latter document is essentially a settlement agreement and payment schedule. There is no indication that notice of the present application for judgment has been given to the defendant. [ 5 ] I am not prepared to grant judgment based on the documents filed.

Although I do not suggest any mala fides on the part of the plaintiff, I think the practice of obtaining a consent judgment as part of a settlement process is problematic, at least in the context of an unrepresented party. I assume the defendant to have been unrepresented, because there are terms in the agreement which I would think no competent solicitor would accept; indeed, which I am surprised to see solicitors proposing. Paragraph 3.1, for instance, seems to say that if the defendant overpays the plaintiff, the plaintiff will be entitled to keep any such overpayment or overpayments.

This is a rather unusual proposition. [ 6 ] It is also a concern that the plaintiff wishes to have judgment in an amount calculated by it, on the basis of what it says is the payment history, without the defendant having notice of the application and without therefore having an opportunity to dispute for example the calculation or the payment history. As far as the court record shows, the last the defendant heard of any of this was some time in mid-2016. [ 7 ] Had the matter come up in open court, and the parties agreed to such a process before a judge, it is possible that it would have been given effect.

The difference is that the Court then has some degree of control over the process, and some understanding of the defendant’s knowledge of that process. Here, there are no such safeguards. [ 8 ] Separate from those issues, the agreement itself is incomplete. It refers to Schedules A and B as attached; there is no

Schedule A, and the page entitled ‘Schedule “B”’ is blank. [ 9 ] In my view, the proper procedure under the circumstances is for the plaintiff to obtain a date from the Court Clerk when this matter can be heard. That should be on a regularly-scheduled chambers date. The plaintiff must then serve notice of that hearing, together with copies of the documents provided to the Court and a copy of this fiat, on the defendant. Such service should be at least 10 days before the hearing date, unless otherwise ordered by the Court. ___________________________ Q. D. Agnew, J