Marianne Pavlyak v. Air Canada, 2023 NBKB 128

Citation: Marianne Pavlyak v. Air Canada , 2023 NBKB 128 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON MC-741-2022 BETWEEN: MARIANNE ALEXANDRA PAVLYAK, Plaintiff, – and – AIR CANADA , Defendant. DECISION (ORAL) BEFORE: Justice Jean-Paul Ouellette AT: Moncton, New Brunswick DATE OF HEARING: May 29, 2023 DATE OF DECISION: May 29, 2023 APPEARANCES: Marianne Alexandra Pavlyak , per se, for Plaintiff; Olga Young , for the Defendant. Ouellette, J. INTRODUCTION

[1] This is an appeal made by way of an application under the Small Claims Act of a decision by an adjudicator who, onDecember 2, 2022, granted a temporary stay of proceedings pending a decision from the Federal Court of Appeal on the same issues asthe subject matter of this small claim filed by Marianne Alexandra Pavlyak. FACTUAL BACKGROUND [2] As for the background of this matter, Ms. Pavlyak filed a claim against Air Canada after having been delayed on a flightfrom Montreal to Moncton. She claims to be owed $1,000 in compensation after a delay of more than 9 hours.

Her original flight, onJune 26, 2022, was ultimately rescheduled for June 29, 2022. The Court understands that Ms. Pavlyak is also seeking damages forexpenses she incurred during her stay in Montreal. [3] On November 30, 2022, the Adjudicator, who was to hear her claim denied by Air Canada, granted a temporary stay ofproceedings pending a decision from the Federal Court of Appeal in WestJet v. Lareau on the same subject matter.

ISSUES [4] The sole issue to be decided is whether the decision made by the Adjudicator should be reversed by this Court on the basisthat he erred in exercising his judicial discretion when he granted the temporary stay of proceedings? ANALYSIS AND CONCLUSION [5] Ms. Pavlyak submits that Air Canada does not have an appeal to the Federal Court of Appeal and was denied a right toappeal. Notwithstanding that, WestJet v. Lareau does have an appeal with the Federal Court of Appeal and Air Canada has been grantedthe status of intervenor in that matter. [6] Ms.

Pavlyak also raised the issue of whether the Adjudicator had the authority to grant a stay under the Small Claims Act.She submits that the temporary stay will cause an injustice resulting in delays to be heard. In

summary, that is her position. [7] Air Canada’s position is that this Court should consider the jurisdictional authority of the Adjudicator and if he did exercisethat authority, then he did so judicially in granting the temporary stay. They submit that there is no basis for the Court to intervene andthis application should be denied pursuant to section 42(4) of the General Regulations of the Small Claims Act. [8] The first question for this Court to answer is did the Adjudicator have authority to grant a temporary stay? [9]

Section 16 of the Small Claims Act reads as follows: 16 In any matter of procedure not provided for by this Act or the regulations, the court may give directions. [emphasis added] [10] Adjudicator Cripps considered the “Hollinger factors” in deciding whether he should exercise his discretion in issuing thetemporary stay pending the resolution of the WestJet appeal to the Federal Court of Appeals. The discretionary nature of a decision togrant a stay is supported by the jurisprudence in Hollinger International Inc. v.

Hollinger Inc., (ON SC). [11] Our Court of Appeal’s telling use of the word “may” in the applicable Rule is an indicator of the discretionary nature of thecorresponding order. In Madam Justice Larlee’s decision in Leger v. G & G Carnival Amusements Inc. et al, 2015 NBCA 20 ,she states: The use of the word “may” indicates that whether to make the order or not is a discretionary decision. [12] In light of the comments and after reading the language contained in

section 16 of the Small Claims Act, I find that thedecision was a discretionary one. [13] As the decision was a discretionary one, it is owed significant deference and should only be interfered with on appeal if it wasfounded upon an error of law or legal principles, if there was a palpable and overriding error made by the Adjudicator, or if it is patentlyunreasonable. [14] In Bossé v Irving Oil Marketing G.P.

Inc., (NB CA), the Court of Appeal expressly stated at paragraph 9that when an order is “discretionary in nature, it attracts a high degree of deference”. [15] The applicable standard was succinctly summarized by Justice Drapeau, in The Beaverbrook Canadian Foundation v. TheBeaverbrook Art Gallery, 2006 NBCA 75 , at paragraph 4: [4] […] The impugned Order is quintessentially the product of an exercise of judicial discretion.

Like any other discretionaryjudicial decision, it may be interfered with on appeal only if it is founded upon an error of law, an error in the application of thegoverning principles or a palpable and overriding error in the assessment of the evidence (see British Columbia (Minister of Forests) v.Okanogan Indian Band, [2003] 3 S.C.R. 371, 2003 SCC 71 at para. 43) or if it is unreasonable, in the sense that nothing in the recordcan justify it (see The Honourable R.P.

Kerans, Standards of Review Employed by Appellate Courts (Edmonton: Juriliber Limited, 1994)at pp. 36-37 and Secretary of State for Education and Science v. Tameside Metropolitan Borough Council, [1977] A.C. 1014 (H.L.)Lord Diplock at p. 1064). [16] The decision of the Adjudicator should be treated and reviewed in the same manner. [17] The Court finds that the decision is sound. The Adjudicator was authorized by the Act to exercise his discretion in grantingthe temporary stay and, in doing so, applied relevant case law, considered and weighed relevant factors, and rendered a decision that was

reasonable in the circumstances. [ 18 ] The Court further finds that the Adjudicator had the authority to grant the temporary stay and was authorized by the Act to exercise his discretion in granting the temporary stay. He also acted within his authority pursuant to the Act when rendering his decision. [ 19 ] In his decision, at paragraph 7, he wrote:

Section 16 of the Small Claims Act states that in any matter of procedure not provided for by the Act or the regulations, the Court may give directions. [ 20 ] In addition to the Court’s discretionary powers to address procedural matters,

section 4 of the Act also provides the Court with a broad judicial discretion to make decisions and orders: 4. There is established a court of record called the Small Claims Court of New Brunswick that shall hear and determine in a

summary way all questions of law and fact and may make any decision or order that it considers just and reasonable in the circumstances. [ 21 ] Absent any binding jurisprudence or statutory provision that expressly precludes the Court from granting a stay in these circumstances, the Court does not have the authority to stay the matter. [ 22 ] The Adjudicator applied the law and relied upon the “Hollinger factors” which were originally set out in the case of Hollinger and have since been endorsed in cases across Canada to assess whether an individual action should be temporarily stayed pending a decision in a separate proceeding. [ 23 ] It is clear from paragraphs 5 and 6 of the Adjudicator’s decision that the Adjudicator applied the four-part inquiry that is set out in Hollinger and that he considered and weighed the relevant factors, including whether any injustice would result from his decision. [ 24 ] Absent any conflicting jurisprudence or evidence to demonstrate that the Adjudicator’s analysis was flawed, there is no basis for this Court to find that the Adjudicator committed any error in law or misapplied legal principles.

Decision was reasonable [ 25 ] The decision was a reasonable one in the circumstances because the relief granted is commonly used by courts across Canada to promote judicial economy, including in New Brunswick civil proceedings pursuant to Rule 6.01 of the Rules of Court . Additionally, the relief is temporary in nature and does not deprive the Applicant of her “day in court”. [ 26 ] The Adjudicator acted reasonably and there is no basis to find that the decision was not a reasonable one. [ 27 ] In

summary, the decision rendered by the Adjudicator was a discretionary one and as a discretionary order, the decision is owed a high degree of deference and should not be interfered with. The decision is sound in the circumstances and there is no evidence the Adjudicator committed any errors in rendering his decision or that the decision was an unreasonable one.

The Adjudicator properly exercised his discretionary authority and, as such, appellate intervention is unnecessary, and the decision should not be interfered with. [ 28 ] For the above reasons, the Court finds that the Adjudicator acted within the scope of his authority, he correctly applied relevant case law, and he rendered a reasonable decision. He properly exercised his discretionary authority and, as such, appellate intervention is unnecessary, and the decision should not be interfered with. [ 29 ] The application is therefore denied.

DATED at Moncton, New Brunswick this 29 th day of May 2023. ____________________________________ Jean-Paul Ouellette, Justice of the Court of King's Bench of New Brunswick