Premium Portable Washrooms Ltd. - v. -, 2015 SKPC 62

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 062 Date: April 15, 2015 File: SC#387 of 2014 Location: Saskatoon _____________________________________________________________________________ Between: Premium Portable Washrooms Ltd. - and - Carlyle Rental Centre Ltd. Adam Touet For the Plaintiff (Applicant) Nathan Phillips For the Defendant (Respondent) _____________________________________________________________________________ FIAT R.D.

JACKSON , J _____________________________________________________________________________ I BACKGROUND [ 1 ] The Plaintiff brings application to have the within action transferred back to the Judicial Centre of Saskatoon, the matter having been transferred earlier upon request of the Defendant.

[ 2 ] The claim was commenced August 25, 2014 out of the Judicial Centre of Saskatoon wherein the Plaintiff alleged the Defendant owed the sum of $18,759.25 pursuant to a contract to provide “portable washroom rentals and pick-up/cleaning”. [ 3 ] The summons date served upon the Defendant indicated the case management was to be held Wednesday, November 5, 2014 at 11:15 a.m. in Saskatoon. Subsequent to the service being effected, the Defendant’s solicitor, Mr. Nathan Phillips, of Phillips and Co. located in Regina, corresponded with the Court, copied to the W Law Group who issued the claim on behalf of the Plaintiff, requesting pursuant to s. 9(1)(

b) of The Small Claims Act [1] that the action be transferred to the Carlyle circuit point. [ 4 ] The letter stated in part “. . . the summons and document list of the Plaintiff lack any connection to Saskatoon - it is not alleged that any services were rendered or requested in Saskatoon. Whereas the Plaintiff has failed to draw any connection to Saskatoon, the Defendant’s counterclaim will specifically allege the Plaintiff breached its obligations to the Defendant in the geographical region surrounding Carlyle.” By return correspondence of September 30, 2014, Michelle Tobin of the W Law Group informed Mr.

Phillips “. . . for your information, we do not act for Premium Portable Washrooms Ltd. Our client is Central Credit Recovery, a collection agent that was attempting to collect this debt on behalf of Premium Portable Washrooms Ltd. Our client asked us to facilitate the service of the Statement of Claim upon Carlyle Rental Centre Ltd. and accordingly, we sent the registered mail to the registered office address for Carlyle Rental Centre Ltd. Again, we do not act for the Plaintiff.

We have forwarded your correspondence to our client, Central Credit Recovery, and asked them to advise their client, Premium Portable Washrooms Ltd., of the same.” This letter unfortunately was not copied to the Provincial Court and only surfaced subsequently when the application of the Plaintiff was made to have the file transferred back to Saskatoon. [ 5 ] Based upon the available information, and not having heard from the Plaintiff in regards to the request for transfer, an order was granted October 9, 2014 transferring the action to the Judicial Centre of Weyburn. [ 6 ] On October 22, 2014 Mr.

Adam Touet of the W Law Group faxed a letter to the Provincial Court informing that he had recently been retained to represent the Plaintiff, Premium Portable Washrooms Ltd., and that his client’s instructions were to oppose the transfer to Weyburn Provincial Court advising that, inter alia , “The Plaintiff will establish that the Defendant retrieved the portable washrooms from Saskatoon and returned the portable washrooms to Saskatoon.

Our client will also establish that this matter lacks any connection to the geographical region surrounding Carlyle and that all transactions occurred at our client’s place of business in Saskatoon.” [ 7 ] On the basis of this new information provided to the Court and given the unusual circumstances that the Plaintiff, Premium Portable Washrooms Ltd., had not received actual notice of the application to have the matter transferred initially, a hearing was granted so that this could be fully canvassed by counsel.

II DETERMINATION [ 8 ] The Defendant raised the preliminary objection that the Court lacked jurisdiction to make any further order regarding the transfer in that the order had already been made and that the time for the Plaintiff to resist such an application had long since passed. [ 9 ] Having regard to the first submission, the Court is not inclined to agree that it now lacks jurisdiction to make any further order to transfer the action. Section 9(1) of The Small Claims Act states: (9)

(1) After issuing a summons, a judge may change the location of the case management conference or trial to any other court location if: (

a) all parties to the action consent; or

(

b) the judge is of the opinion that another court location would be appropriate based on information provided by one of the parties. [10] Section 9(1)(b) (para. (

a) not being applicable here) specifically permits the Court to change the location of the casemanagement or trial, if appropriate, based upon information provided by one of the parties. In the instant case, the Plaintiff however wasnot given actual notice of the initial transfer request until after the fact, through no fault of its own, and strenuously opposes such atransfer taking place. Fairness dictates that it now be allowed to provide information from its perspective which is relevant and germaneto the determination of whether the transfer order should have been made at all.

Further, there is nothing in the wording of s. 9 otherwiseto prevent the Court from exercising its discretion to reassess the transfer of the action where appropriate to do so, particularly where noother steps have been effected to this point. [11] The guiding considerations in the legislation to determine the proper court location is s. 7(2) which reads: 7(2) For the purposes of deciding which court location is appropriate, the judge shall consider the following factors: (

a) any agreement between the parties respecting the location of the case management conference or the trial; (

b) the place where the claim arose; (

c) the place where the defendant resides; (

d) the place where the plaintiff resides. [12] It is noteworthy that the legislation prior to 2005 previously contained the words when considering these factors in s. 7(2) “. .. in the following order of priority.” These words were specifically deleted however when the legislation was amended, such that allfactors are to be considered without accrediting priority of one over the other. [13] In the instant case, s. 7(2)(

a) does not apply. The balance of the factors i.e. place where the claim arose, where the Defendantresides and where the Plaintiff resides, must then be considered. [14] As far as where the parties reside, suffice to say that this is evened out given their respective locations, several hundredkilometers apart. One side or the other will be forced to travel along with any potential witnesses for trial, should this be necessary. [15] The real issue for determination as a deciding factor is where the cause of action arose.

In Diesel Power and Accessories Ltd. v Keeley Lake Lodge Ltd.[2] Halvorson, J stated at paras. 8 to 10 inclusive: [8] The meaning of the expression “cause of action” found in the judgment of Koak L.M. in the case of St. Louis v.Markham, (SK KB), [1921] 1 W.W.R. 950, 66 D.L.R. 444 (Sask. K.B.), has been consistently followed inSaskatchewan in preference to the meaning given to that phrase in the Western Can. decision. [9] In the St.

Louis case, Doak L.M. explained that the “whole cause of action” test as stated in the Western Canada caseapplied only to courts with limited territorial jurisdiction and did not apply to the Court of Queen’s Bench which had jurisdictionthroughout Saskatchewan. At p. 957 in his judgment in Sr. Louis, Doak L.M. stated:

“I prefer to rest my decision upon what I believe to be the true meaning of the expression ‘cause of action’ as applied to actions in theCourt of King’s Bench, viz., that the cause of action arises when and where the person who has entered into the contract does or omits todo that which gives rise to the right to bring the action.” [10] The rationale of this decision has been approved in a number of Saskatchewan decisions, including Massey-FergusonFinance Co. v. Hedthcote, [1973]. (SK QB), 2 W.W.R. 287 (Sask. Q.B.); Massey-Ferguson Finance Co. v. F. D,Enterprises Ltd., Sask.

Q.B., No. 107, 1971 (unreported); and Thomson v. Dickson, Sask. Q.B., No. 228,1972 (unreported). And further at paras. 12 - 14: [12] In the case at hand, the contract is silent as to the place at which payment was to be made by the defendant to theplaintiff. In such circumstances, it is the duty of the debtor to seek out his creditor (8 Hals. (3d) 168). [13] Following the test prescribed by Doak L.M., what was omitted to be done which gave the right to sue? Clearly it was thefailure of the defendant to pay the plaintiff.

Because the defendant was obliged to seek out the plaintiff in Saskatoon and pay there, theomission to do so gave rise to a cause of action at that centre. [14] It is the alleged breach of contract by a defendant which governs the location of the cause of action and not some breachby the plaintiff, which might be alleged in a statement of defence or counter-claim.

Where a defendant in his defence or counter-claimraises issues which he could more conveniently establish at a judicial centre other than that where the cause of action arose, his potentialremedy is not a transfer of the action but an application for change of venue. [16] Similarly, in Denys v Shirkey[3], Halderman, J relied upon, inter alia, St.

Louis (Rural Municipality) v Markham[4], which heldthat “. . . a cause of action arises when and where the person who entered into the contract does or omits to do that which gives rise to theright to bring the action.” Judge Halderman went on to determine “. . . that the claim arose at Porcupine Plain where the Defendant failed to make the payment allegedly required.”[5] [17] In Saskatchewan Crop Insurance Board v Court[6], Bayda, CJS stated at paras. 5 and 6: [5] The first subsidiary issue raised by the base issue is: Where is a cause of action founded upon a breach of contract deemed tohave arisen?

The law in this respect is settled. The cause of action is not the “whole” cause, but only the act or the omission to act on thepart of a defendant which gives the plaintiff his cause of complaint. The place where the act or the omission occurred determines wherethe cause of action arose. In the case of an action founded upon a breach of contract, the place where the act or omission that constitutesthe breach sued upon occurred is the place where the cause of action arose. The seminal authority on the point is Jackson v. Spittall(1870), L.R. 5 CP. 542, (at page 552).

The judgment of Brett, J., in that case was applied by the Privy Council in Distillers Co.(Bio-Chemicals) Ltd. v. Thompson, [1971] A.C 458; [1971] 1 All E.R. 694. As recently noted by Halvorson, J., in Diesel Power &Accessories Ltd. v. Keeley Lake Lodge Ltd., (SK QB), [1979] 5 W.W.R. 659, the trial courts of this jurisdiction haveconsistently followed the foregoing rule. [6] In the present case the act or omission to act that gives the plaintiff its cause of complaint and is the breach sued upon, is thefailure by the defendants to make payment under the contract.

To establish the place for payment is to establish the place of the omissionto act and thus the place where the cause of action arose. The second subsidiary question then is: Where is the place for payment? Therules applicable to establishing the place for payment are summarized in 8 Halsbury’s Laws of England (3rd Ed.), paras. 285 - 288, pages167-169. For the present purposes only three of those rules are relevant.

1. Where a place for payment is specified, the promisor must tender payment at that place in order to discharge himself unless the place so specified is varied by mutual consent. 2. The place for payment, if not specified in express terms, depends upon the intention of the parties as indicated by the nature and terms of the contract and the other circumstances of the particular case. 3.

Where no place for payment is specified either expressly or by implication from the nature and the terms of the contract and the surrounding circumstances, the general rule is that the promisor must seek out the promisee and perform the contract (i.e. make payment) wherever he may happen to be. [18] In the present case, the business arrangement according to the Affidavit of Dale Pollan, Vice President of the Plaintiff corporation, is set out at paras. 2 - 4 inclusive: 2. The Plaintiff is in the business of supplying portable washrooms.

The Plaintiff’s business is located at 510A - 47 th Street East, Saskatoon, Saskatchewan. A copy of the corporate profile report for the Plaintiff is attached and marked as Exhibit “A” to this my Affidavit. 3. In or around July, 2012, the Defendant contacted the Plaintiff by telephone to arrange for the rental of portable washroom units from the Plaintiff and the Plaintiff proceeded to rent numerous portable washroom units to the Defendant between July 2012 and July 2013. The rental process was as follows: (

a) The Defendant would contact the Plaintiff by telephone to arrange for the rental of a portable washroom unit; (

b) The Defendant would make arrangements to have the portable washroom unit picked up from the Plaintiff’s place of business in Saskatoon; and (

c) The Defendant would make arrangements for the portable washroom unit to be returned to the Plaintiff’s place of business in Saskatoon. 4. The Defendant was solely responsible for all costs associated with picking up the units from the Plaintiff’s place of business in Saskatoon and returning the units to the Plaintiff’s place of business in Saskatoon. Copies of Bills of Lading indicating that the portable washroom units were picked up from the Plaintiff’s place of business in Saskatoon are attached hereto and marked as Exhibit “B” to this my Affidavit.

Copies of Bills of Lading indicating that the portable washroom units were returned to the Plaintiff’s place of business in Saskatoon are attached hereto and marked as Exhibit “C” to this my Affidavit. [19] There appears to be no question that the contract to provide the portable toilets was made in Saskatoon. Further, it was the obligation of the Defendant to make the contractual payment in Saskatoon as well as pick up the product there.

Granted, the Defendant has made a counterclaim alleging payment under the contract was suspended by virtue of a breach of a subsequent oral agreement to grant territorial exclusivity to the Defendant. This however is specifically denied by the Plaintiff in its defence to counterclaim, and based upon Diesel Power , this would not in any event form the basis of determining the proper court location. [7] [20] Accordingly, for purposes of determining where the action should proceed, the scale clearly tips in favour of the Plaintiff.

Further, there is no doubt had the Plaintiff been given the opportunity to provide the proper information at the outset, the claim would never have been transferred in the first place. To impute knowledge by reason of an agency relationship between the collection agent and the Plaintiff, or the solicitors working on behalf of the collection agent and the Plaintiff (being in the same office) works an unfair hardship on the Plaintiff in this case and is contrary to the principles in s. 9 and s. 7 of The Small Claims Act , as set out herein.

[21] The Court therefore orders that the action be transferred back to the Judicial Centre of Saskatoon. Both parties through theirsolicitors can arrange a suitable time for case management according to their calendars and the availability of their clients. Further, inthe event that resolution is not forthcoming at the case management such that a trial is necessary, the Defendant would be at liberty tomake representations for a change of venue of the trial of the matter.

The case management judge would be in a far better position atthat point to decide if it would be appropriate and equitable to do so bearing in mind what issues remained to be tried and the quantumand residence of the witnesses required for both sides. ________________________ R.D. Jackson, J [1]

Chapter S-50.11 of the Statutes of Saskatchewan, 1997 [2] (SK KB), [1979] 5 WWR 659, [1979] SJ No 10 [3] [2004] SJ No 497 (PC) [4] (SK KB), [1921] 1 WWR 950 (Sask KB) para. 13 [5] Para. 17 [6] (1981) (SK CA), 11 Sask R 54 (SKCA) [7] See para. 14 of Diesel, quoted above at para. 15