2016 SKPC 058, 2016 SKPC 058

PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 058 Date: April 20, 2016 File: 356/15 Location: Regina, Saskatchewan Phillips Legal Professional Corporation -and - Alex P. Mercredi, Jules Lidguerre, Louis Mercredi, Dorothy Adam, Elli Adam, Derrick McDonald, Fond Du Lac First Nation, Earl Lidguerre, Leonard Adam, Rita Adam, William Adam, Marilyn Fern, Willie John Laurent and Georgie McDonald on their own behalf and on behalf of the members of Fond Du Lac First Nation Nathan Phillips For the Plaintiff Bruce Slusar For the Defendants FIAT P.

DEMONG, J [ 1 ] By Summons dated August 24, 2015, an amended statement of claim was issued from this Court. In that claim, the plaintiff seeks payment for monies allegedly due and owing for legal services rendered. A number of defendants were named. It became apparent that the plaintiff was having difficulty serving each of the named defendants, as each were residents in Northern Saskatchewan.

Upon application, an order for substitutional service was granted, allowing the plaintiff to serve the defendants, by faxing the summons and claim to the Fond Du lac First Nation’s facsimile address as set forth in the plaintiff’s legal file, and by serving the individual defendants

by e-mail. [2] The matter was set for trial on December 7, 2015. Prior to the return date, the plaintiff filed an affidavit of service identifyingwhich of those defendants that it was able to serve and those which were not effectively served. On the return date, none of thedefendants which had allegedly been served attended the trial. Counsel for the plaintiff sought default judgment, but only against thoseparties which had been identified as having been served.

Counsel stipulated for the record that the plaintiff was abandoning its claimagainst the unserved defendants. [3] Default judgment was granted by this Court against those remaining defendants, and a Certificate of Judgment issued.Unfortunately, that judgment was not as clear as might be hoped. The body of the judgment however, names each of the defendantsagainst whom, jointly and severally, judgment was entered.

They are: The Fond Du lac Denesuline First Nation, Earl Lidguerre, RitaAdam, Georgie McDonald, Louis Mercredi and Alex Mercredi. [4] On March 4, 2016, a number of defendants named in the original style of cause brought application to set aside the defaultjudgment, pursuant to

section 37 of The Small Claims Act, 1997. They were Fond Du Lac First Nation, William Adam, Marilyn Fern,John Laurent, Georgie MacDonald, and Elli Adam. In support of the application, Bruce Slusar, counsel for the defendants filed threeaffidavits prepared by each of Rudy Adam, Willie John Laurent and Georgie MacDonald. [5] Upon being served with notice of this application the plaintiff requested the opportunity to cross-examine the deponents on theiraffidavits on the basis of a suggestion that some of that evidence conflicted with the averments set forth in the plaintiff’s previously filedaffidavit of service.

It also sought the opportunity to file an additional affidavit to be deposed by the plaintiff’s lawyer, Nathan Phillips. [6] The original

section 37 application was adjourned and the Court heard argument on the plaintiff’s motion to cross-examine. In thecourse of that hearing the Court clarified to Mr. Slusar that only those defendants named in the body of the certificate of judgment werethe judgment debtors, and as such, each of Mr. Slusar’s clients, identified as Elli Adam, William Adam, Marilyn Fern and Willie JohnLaurent need not be a party to these proceedings any longer as they are not judgment debtors.

Judgment was not entered against them. [7] During argument, counsel for the plaintiff sought directions from the Court as to the scope of its cross-examination and proposedthat it be allowed to cross-examine each of the deponents not only on the issue of service, but also on the substantive merits of thedefence that is being proffered.

I have granted the plaintiff the opportunity to cross-examine on those averments relating to service, butdecline to make an order allowing it to cross-examine on the substantive merits of the defence being offered up. [8] The Small Claims Act, 1997 does not follow, nor are there prescribed, specific rules of court which define each and everyprocedural step that this Court takes in the course of an action. Its process is, rather, defined, on a case by case basis, by the Act’sintended objectives, which is the timely, efficient and cost effective resolution of legal disputes.

As such, the plaintiff does not have, as amatter of right, the opportunity to cross-examine on any given affidavit. That said, it is clear to me that the affidavits filed in this matter,on the issue of service, conflict, and credibility may well be in issue.

As a result, and in accordance with the principles articulated inVizco v Choquette, 2016 SKCA 52 I am allowing cross-examination to the extent of that conflicting evidence. [9] There is, however, no conflict between the averments made by the applicant’s affidavits in terms of the substantive defence theyseek to advance, and the affidavit of service filed by the plaintiff at first instance. The latter does not, in any way, speak to the defence, orits merits.

In that regard, the plaintiff has indicated that it seeks to file an affidavit in respect of the merits of the defence, so as to, Isuspect, bring itself within the principle enunciated in Vizco. In my view, this is inappropriate. What the plaintiff is seeking, in essence,is the opportunity to allow it to argue the very merits of the lawsuit on a

section 37 application, and to do so, presumably by affidavit. If Iallow this approach to be followed, do I then allow rebuttal affidavit evidence, and if so, do I allow that rebuttal affidavit evidence frompotential witnesses other than the defendants themselves? Does the application somehow turn into a prolonged mini-trial on an essentialaspect of the action in the nature and form of a

summary judgment hearing? [10] In effect, were the plaintiff’s request allowed, all

section 37 applications could, or would, end up dealing with the centralsubstantive issue between the parties. The application would, in essence, be a trial hearing on the merits of the claim, by affidavit, as aprecondition to determining whether or not a trial, on the merits, should proceed.

[ 11 ] This approach is, in my view, flawed. It will delay and complicate and duplicate this Court’s process. If allowed, it would subvert the intended purpose of

section 37 of the Act . This

section is ameliorative in its intent. It seeks to allow persons who have a reasonable excuse for not appearing at trial to bring themselves back within the court process if they have a valid defence. The validity of that defence is to be determined by the court. It will be denied if the defence is without reasonable grounds, or if it discloses no triable issue, or if it is frivolous, vexatious or an abuse of the court’s process.

In my view, the test for validity is not whether or not a defence will necessarily succeed, but whether, as our Queen’s Bench has indicated in Sales v Sereda , (1952), WWR (NS) 470 (Sask. QB) the defence is at least ‘worthy of investigation’ - whether or not there is ‘a bona fide question to try’. On that basis, I see little reason in allowing cross-examination on the merits of the defence in this matter. In the exercise of its discretion, I believe that the court can make that determination without the assistance of cross-examination. [ 12 ] The Court therefore makes the following orders:

a) This matter is set down for a

section 37 application on Monday, the 11 th day of July, 2016, at 2:00 p.m.;

b) At least ten days prior to the application date, the applicants shall file, with proof of service, their respective dispute notes;

c) If the plaintiff seeks to file any further affidavit in relation to this application, it shall file, with proof of service, those documents in the time frame set out above;

d) Mr. Slusar shall make available, for cross-examination, each of Rudy Adam, Willie John Laurent and Georgie MacDonald which parties may, if they so choose, appear by telephone or teleconference;

e) Both counsel are directed to attend the hearing in person;

f) If the plaintiff files any further affidavit material, it shall ensure that the deponent of that affidavit is present at the hearing and subject to cross-examination on that affidavit;

g) The Certificate of Judgment entered by this Court on December 7, 2015 as against the defendants Fond du Lac Densuline First Nation and Georgie MacDonald until such time as this Court otherwise orders. This stay does not affect the plaintiff’s right to act on the judgment as against the remaining judgment debtors Earl Lidguerre, Rita Adam, Louis Mercredi and Alex P. Mercredi. Dated at Regina, Saskatchewan the 20th day of April, 2016. P. Demong, J