The Estate of Freda Champagne v. Date:, 2011 MBCA 106

Citation: The Estate of Freda Champagne v. Date: 20111219 Carpets for Less Inc., 2011 MBCA 106 D ocket: AI 11-30-07668 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) T. Stone THE ESTATE OF FREDA CHAMPAGNE ) on behalf of the Applicant ) (Claimant) (Respondent) Respondent ) P. Champagne ) on behalf of the Respondent - and - ) ) Chambers motion heard: ) December 1, 2011 CARPETS FOR LESS INC. ) ) Decision pronounced: (Defendant) (Appellant) Applicant ) December 19, 2011 MARC M.

MONNIN J.A. 1 The applicant seeks leave to appeal a decision of a judge of the Court of Queen’s Bench sitting as a small claims appeal judge under The Court of Queen’s Bench Small Claims Practices Act , C.C.S.M., c. C285 (the Act ). The applicant failed to appear at the hearing before the hearing officer, but the matter proceeded as a trial de novo under the Act upon appeal to the Court of Queen’s Bench. The appeal judge gave judgment in favour of the respondent for the cost of reinstalling certain hardwood flooring which she found had been done improperly. 2

Section 15 of the Act permits an appeal, with leave of a judge of this court, on a question of law alone. In order to be successful on an application for leave, the applicant must show that: (

a) the question raised upon appeal is a question of law alone; (

b) the issue is one of sufficient importance to engage the attention of the court; and (

c) it has an arguable case that is one which has a reasonable prospect of success. See Roschuk v. Relf et al. , 2011 MBCA 37 , 268 Man.R. (2d) 18 ; and Penta Protective Coatings Ltd. v. Scott , 2006 MBCA 50 . 3 One of the unusual aspects of this case, and which caused some difficulty, is that the original claimant, Mrs. Champagne, the person to whom the flooring material was sold, died before the hearing of the appeal. The claim was continued by her son as the personal representative of the estate. 4 Upon the hearing of the appeal, Mr.

Champagne took the position that he wished to proceed in French, which is his native tongue, and therefore the matter proceeded before the appeal judge as a bilingual hearing, with an interpreter providing consecutive translation. At the hearing before me, the parties had not made any arrangements for an interpreter, but wished to proceed nevertheless. With both parties’ concurrence, I did so, explaining as we went along the submissions made in French by Mr. Champagne to the applicant’s representative. Mr. Champagne indicated he understood English sufficiently to follow the proceedings.

I am therefore rendering this decision in both languages. 5 The relevant facts drawn from the appeal judge’s reasons are as follows. The applicant is a supplier of flooring material. According to the submissions by Mrs. Stone on its behalf, it says that it does not provide installations, although it will make arrangements for installers to attend to install its product. However, that is on the basis that those installers are entering into separate contracts with the customer. Before the appeal judge was a quote dated January 11, 2010, addressed to Mrs.

Champagne, to supply a certain type of hardwood as well as to remove the existing flooring and replace it with the new product. One part of the quote stipulates “to install flooring” and gives a global amount. The quote also states, “The undersigned proposes to furnish all materials and perform all labour necessary to complete the work described above.” The quote was signed by Mrs. Stone. Mrs. Stone says that she explained to Mrs.

Champagne that the installer would charge separately and that she would be paying the installer directly for the installation, not the applicant. 6 In her reasons, the appeal judge found that the installer was sent to Mrs. Champagne’s residence by the applicant to perform the work. Accordingly, the appeal judge concluded that Mrs. Champagne could look to the applicant to be responsible for the faulty workmanship.

7 On the application for leave, Mrs. Stone disputes the use of the quote document by the appeal judge, stating that, at the end of the day, different material was supplied and therefore the quote did not result in a contract. Secondly, she argues that handwritten notations on the quote document suggest that Mrs.

Champagne recognized that there would be two payments, one for material and one for installation, thereby evidencing a separate contract with the installer. 8 After review of the appeal judge’s decision, I must conclude that what the applicant seeks to appeal is the finding of fact as to the contractual relationship between the applicant and the respondent. This is not an issue of law alone. At best it is one of mixed fact and law. 9 Therefore, the applicant has not met the first criterion which this court must consider when granting leave to appeal under s. 15 of the Act .

I dismiss the application for leave to appeal with costs in favour of the respondent. J.A.