DAI QUOC NGUYEN APPELLANT - v. -, 2023 SKKB 163

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 163 Date: 20 23 08 08 Docket: KBG-RG-02916-2022 Judicial Centre: Regina BETWEEN: DAI QUOC NGUYEN APPELLANT - and - NEWAY DRIVING SCHOOL LTD. RESPONDENT Counsel: Thomas Le for the appellant Christopher Butz for the respondent JUDGMENT LAYH J. August 8, 2023 BACKGROUND [ 1 ] At a small claims court trial, Dai Quoc Nguyen [Mr. Nguyen], then self-represented, sued Neway Driving School Ltd. [Neway] alleging it failed to satisfactorily provide training at its truck driving course. Mr.

Nguyen sought judgment for $26,750.00, representing a refund of the deposit he paid to Neway ($2,500.00) and for loss of income he could have earned if he had received appropriate training. He alleged that Neway breached its training contract by terminating his training program, which prevented him from acquiring a licence to operate large trucks. [ 2 ] Neway terminated Mr. Nguyen’s training program because of his abusive and argumentative conduct and counterclaimed for the value of the instructional hours it provided to him before termination.

The trial judge agreed with Neway and awarded damages for services rendered to the date of termination, $10,788.75, less Mr. Nguyen’s $2,500.00 deposit, resulting in a judgment of $8,288.75. [ 3 ] Mr. Nguyen retained legal counsel who served a notice of appeal on December 27, 2022 raising 12 grounds of appeal The grounds of appeal cited no errors of law and, at best, alleged certain questions of fact. Many of the 12 grounds are perplexing and suggest no errors, either of law or fact. In part, the notice of appeal reads as follows: The grounds of appeal are: 1. The entire judgment is being appealed. 2.

The source of the Appellant’s right of appeal and the courts’ jurisdiction to entertain the appeal is: s. 44 of The Small Claims Act. 2016 S.S. 2016 c. S-50.12 as amended. 3. The Judgment is contrary to the law, the evidence and weight of evidence. 4. The learned Judge erred in issuing a Judgment in favour of the respondent based on forged documents and witnesses’ testimony.. 5. New forensic evidence and audio files have been obtained to reveal that the documents and testimony are fraudulent. 6. The learned Judge erred that the Respondent forging his signature would provide no real benefit or advantage. 7.

The forged signatures were completed to corroborate a narrative that the Appellant failed his exams and that the Respondent had justified reasons for not fulfilling the Defendant’s obligation to complete the Appellant’s training.

8. The Respondent agreed verbally to train the Appellant for $5200, so long as the Appellant agreed to drive for the Respondent’s company after. 9. The Appellant was under the understanding that the training included 121.5 hours of training, 47 hours in class, 17.5 hours in the yard, and 57 hours behind the wheel. 10. The Respondent attempted to force the Appellant to accept 9 hours behind-the-wheel training and pushed the Appellant to agree to drive their automatic trucks. 11.

The Appellant was adamant about completing the entire training requirements and did not want to be limited to driving automatic trucks in the future. The Appellant wanted the training that was agreed to and felt that accepting the 9 hours of training will limit his career opportunities in the future if he did not complete the full training. 12.

The disagreement about training led the Appellant to report the Respondent to the regulatory body, where the forged documents and witnesses were produced to corroborate a different narrative. … [ 4 ] These statements do not allow the court to grasp exactly what is under appeal. The only anchor the court can see in these statements is an assertion that the trial judge erred by not finding that Neway promised Mr.

Nguyen that Neway would provide employment to him after he completed the training course. [ 5 ] Other grounds of appeal found in clauses 4 to 7 harken to one theme—that the trial judge based his decision on forged documents (a position raised at trial but rejected). Significantly, the notice of appeal suggests that after the trial, Mr. Nguyen obtained “forensic evidence…to reveal that the documents…are fraudulent.” Clauses 4 to 7 of the notice of appeal read as follows: 4. The learned Judge erred in issuing a Judgment in favour of the respondent based on forged documents and witnesses’ testimony.. 5.

New forensic evidence and audio files have been obtained to reveal that the documents and testimony are fraudulent. 6. The learned Judge erred that the Respondent forging his signature would provide no real benefit or advantage. 7.

The forged signatures were completed to corroborate a narrative that the Appellant failed his exams and that the Respondent had justified reasons for not fulfilling the Defendant’s obligation to complete the Appellant’s training. [ 6 ] Although clause 5 of the notice of appeal stated that “new forensic evidence” had been obtained (seemingly before December 27, 2022), the court file remains silent until July 13, 2023, when Mr. Nguyen’s legal counsel served a notice of application, returnable Tuesday, July 18, 2023, seeking an order to admit new evidence. An affidavit sworn by Mr.

Nguyen’s legal counsel accompanied the notice of application. It exhibited the new evidence: a report prepared by a self-described “Certified Questioned Document Examiner-Diplomate,” Brenda Petty [Ms. Petty], of Duncan, Oklahoma. [ 7 ] In response to the notice of application, and within one day of service of the notice of application, Neway’s legal counsel filed a detailed memorandum of argument on July 14, 2023. It addressed both Mr. Nguyen’s appeal and his application to adduce new evidence. [ 8 ] Mr. Nguyen provided no written argument respecting either the appeal or the application to admit new evidence. Mr.

Nguyen’s application and appeal were heard in chambers on July 18, 2023. When asked during the hearing whether the entirety of the appeal rested on the question of whether new evidence would be permitted, Mr. Nguyen’s counsel stated he would consider the question and address it later in argument. However, he did not clarify his position. [ 9 ] I have found that the only discernible issue before the court is whether or not Mr. Nguyen should be permitted to adduce new evidence, which he suggests will prove that Mr.

Nguyen’s signature was forged on the “Neway Driving School Application” [Application Form]. [ 10 ] The nature of the new evidence that Mr. Nguyen wishes to introduce is a nine-page report from Ms. Petty. She was provided with 14 purported known signatures of Mr. Nguyen’s but only two signatures among several documents in Neway’s possession, the Application Form and one evaluation. At trial Mr. Nguyen testified that several of the evaluation forms bore his forged signature. Ms. Petty concluded that signatures on the two documents she received were not Mr. Nguyen’s signature.

LEGAL FRAMEWORK [ 11 ] In his notice of application, Mr. Nguyen’s counsel cites, as authority for his application, ss. 44 , 46 and 48 of The Small Claims Act, 2016, SS 2016, c S-50.12 and the Canada Evidence Act, RSC 1985, c C-5 . I find nothing in these provisions that address the court’s ability to hear new evidence upon an appeal. [ 12 ] In its written reply, Neway’s legal counsel correctly cites Rule 14-2 of The Queen’s Bench Rules , which reads as follows: 14-3(1) An appeal from a provincial court judge’s decision may be heard in chambers or in court.

(2) Unless provided otherwise in the enactment pursuant to which the appeal is taken: … (

b) the judge appealed to may:

(

i) receive further evidence, by oral examination, affidavit or otherwise as the judge may allow; or (ii) hold a hearing by way of a new trial [13] This Rule must be read in context of s. 45 of The Small Claims Act: “An appeal pursuant to this Act is to takethe form of an appeal on the record.” [14] Justice Baynton in Memorial Gardens (Saskatchewan) Ltd. v Cooney, [1997] SJ No 674 (QL) (Sask KB)[Memorial Gardens] (a decision also cited by Justice Scherman in Liick v McLeod, 2019 SKQB 25) stated the law respecting theadmission of new evidence in an appeal from the Small Claims Court: 2 With the agreement of counsel I considered the new evidence filed by the appellant even though no formal application was made forits admission.

In most instances such as this, the appellant must establish that the new evidence meets the four tests referred to in a seriesof cases, including Maitland v. Drozda, (SK CA), [1983] 3 W.W.R. 193 (Sask. C.A.), Palmer v. R., (SCC), [1980] 1 S.C.R. 759, R. v. Stolar, (SCC), [1988] 1 S.C.R. 480, and Catholic Children's Aid Society ofMetropolitan Toronto v. M.(C.), (SCC), [1994] 2 S.C.R. 165. These tests are as follows: 1. The new evidence could not by due diligence have been adduced at trial; 2. The new evidence is relevant in that it bears upon a potentially decisive issue in the trial; 3.

The new evidence is reasonably capable of belief, and 4. The new evidence, if believed, could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [15] Justice Baynton specifically stated that these four thresholds apply as well for small claims appeals.

Hecontinued by explaining why an appeal court should be reticent about relying upon new evidence in an appeal, particularly from a SmallClaims Court: 4 Obviously a degree of finality in Small Claims matters is an important consideration and the appeal court should be reticent to rely onnew evidence not tendered to the Small Claims trial judge or to order new trials solely on the basis that new evidence has been tendered.The function of the appeal court is to review the decision based on the record, not to rehear the case. Paziuk v. Dunn (Frank) TrailerSales Ltd. (1994), (SK KB), 127 Sask. R. 303.

This is especially so in this case in that the new evidence could have,with due diligence, been adduced at the trial. [16] Justice Baynton tempered an appellate court’s reticence to admit new evidence if the effort would shield“untruths.” However, even in that instance the untruths must be relevant to a critical issue. He explained: 5 However, in Vagi v. Peters, (SK CA), [1990] 2 W.W.R. 170 (Sask.

C.A.) the majority of the court suggests thatbecause of the court's concern for the maintenance of respect for the administration of justice, a respondent cannot shield his or heruntruths from scrutiny by relying on the admissibility rules respecting new evidence. But even so, the appellant must establish not onlythat the respondent mislead the court, but that the untruths were relevant to a critical issue in the case or to credibility. [17] In Memorial Gardens, the appellant alleged that the judgment was based on the respondent’s perjuredtestimony, a similar allegation to Mr.

Nguyen’s allegation that the Application Form bore his forged signature. While Mr. Nguyenwishes to present new expert evidence of forgery, in Memorial Gardens the appellant wished to submit two affidavits as evidence of thealleged perjury. Justice Baynton disallowed the proposed new evidence, writing: 6 The new evidence submitted by the appellant falls far short of establishing any perjured testimony on the part of the respondent at theSmall Claims trial. The information in the affidavits tendered is accordingly not new evidence that can or should be considered by thecourt.

The ground of appeal in each instance has not been established and the appeals are dismissed with costs. [18] Justice Baynton’s statement poses an appropriate inquiry in this appeal. Due Diligence: The First Threshold [19] A similar situation prevails here as in Memorial Gardens. Respecting his obligation to use due diligence topresent his case at trial, if Mr. Nguyen thought the Application Form (as well as several evaluation forms) bore his forged signature, hecould have engaged a handwriting expert. He did not. [20] Mr.

Nguyen had ample time to engage a handwriting expert if he believed his case turned on a forged signature.Neway gave Mr. Nguyen the document list on January 28, 2022. The trial was heard on August 22, 2022. Mr. Nguyen had sevenmonths’ notice to marshal evidence to support his position that his signature had been forged. [21] Not only did Mr. Nguyen have ample time prior to trial to consider an expert’s report, Ms.

Petty took only fivedays to complete her report, having received instructions on December 17, 2022, and having dated her report December 22, 2022. [22] As Justice Baynton stated in Memorial Gardens, the function of the appeal court is to review the decision basedon the record and not to rehear the case because “a degree of finality in small claims matters is an important consideration” for theappeal court. Because the proposed new evidence is an expert’s opinion, this Court cannot consider the evidence without ordering a newtrial. Neway too must be afforded an opportunity to retain an expert to rebut Ms.

Petty’s report. Ms. Petty would have to present hercredentials and be cross-examined before being qualified as an expert. This reality is what Justice Baynton cautioned about: “the appealcourt should be reticent to rely on new evidence not tendered to the Small Claims trial judge or to order new trials solely on the basis that

new evidence has been tendered.” Relevance of New Evidence to a Decisive Issue at Trial: The Second Threshold [ 23 ] Nor is Ms. Petty’s report relevant to a decisive issue in the trial. Whether or not there was a valid written contract evidenced by the Application Form, the parties conducted themselves according to the terms of the Application Form that Mr. Nguyen suggests bore his forged signature. The terms of the Application Form are consistent with the understanding that Mr. Nguyen and Mr. Singh reached during their meeting on December 14, 2020. In a strange twist of logic, Mr.

Nguyen disavows his signature on a contract that he necessarily had to rely upon in order to commence his action against Neway. [ 24 ] In his statement of claim, Mr. Nguyen states that on December 14, 2020 he met with Mr. Singh. In para. 2 of his claim, Mr. Nguyen states that he understood from that meeting that he would pay a total of $5,200.00 with the other two thirds of the fee to be “paid by government through ‘Job Grant’ program.” Given the trial judge’s finding that Mr. Singh told Mr. Nguyen that only Mr.

Nguyen’s employer could apply for the government grant, the understanding reached at the December 14, 2020 meeting and the terms of the Application Form are substantively similar. [ 25 ] The trial judge was alert to the implausible position Mr. Nguyen was attempting to advance by suggesting his signature was forged. The trial judge questioned any advantage that Mr. Nguyen hoped to gain by imputing the authenticity of his signature on the Application Form. The trial judge found that the terms of the Application Form simply restated the understanding that Neway reached with Mr.

Nguyen at their December 14, 2020 meeting. The trial judge made a factual finding respecting the authenticity of Mr. Nguyen’s signature and the lack of logic in his argument at paras. 4 and 5: [4] The plaintiff says there was no written agreement between the parties. A form of written agreement was entered in evidence. It appears to be signed by the plaintiff. The plaintiff says he never signed the agreement and alleges the defendant forged his signature. He alleges the instructors forged his signature on many of the review and test forms prepared during the instructional course.

The signatures are all remarkably similar and are very similar to the plaintiff’s signature as it appears on his statement of claim and affidavits of service on the court file. But for the plaintiff’s statements that the defendant company has forged all of these documents, there is absolutely no evidence of forgery. There is abundant evidence from various witnesses that the plaintiff executed the documents in their presence. [5] Perhaps more importantly I cannot imagine what the advantage or motivation the defendant and his employees would gain by forging the plaintiff’s signature.

The Counterclaim is based on an agreement to provide and be paid for providing a course of instruction. They do not need the plaintiff’s signature to make that claim, and forging his signature would provide no real benefit or advantage to the defendant. I conclude that these documents are real and are not forgeries and these documents speak for themselves. [ 26 ] Aside from seeing no logic or motivation for Neway to forge Mr.

Nguyen’s signature on the Application Form, the trial judge would have found a contract was formed because “the document simply restates the terms of the agreement, as discussed on December 14.” [ 27 ] Mr. Nguyen’s argument that his signature was forged and that he should be afforded an opportunity to prove its forgery with new evidence is weakened by Mr. Nguyen’s position, strongly advanced at trial and repeated by his counsel at this hearing, that Neway also fraudulently dated the Application Form “January 4, 2020” instead of “January 4, 2021.” The trial judge discredited the plausibility of Mr.

Nguyen’s argument, as well as his credibility, when he dismissed Mr. Nguyen’s argument respecting the misdescribed date and the alleged forgery, writing at para. 13: [13] The course began on January 4, 2021. There was abundant evidence that everyone completed and executed a Neway Driving School Application Form on January 4, 2021. A copy of the Plaintiff’s application form is in Exhibit P-1, Document number 16. I conclude the plaintiff’s application form was executed by the plaintiff, on January 4, 2021, even though the document bears the date of January 4, 2020. [ 28 ] Mr.

Nguyen made much of the fact that he could not have signed the Application Form on January 4, 2020 because he came to Canada in February 2020. Nandit Sharma (an employee of Neway) testified at pages T-127-128 of the transcript that the date was an error and should have read “2021.” The trial judge at page T128 of the transcript accepted that the date was merely an error and should have read 2021. The folly of suggesting that Neway fraudulently described the date as “2020” instead of “2021” (a position continued in appeal) taints the reasonableness of Mr.

Nguyen’s concurrent position that his name was forged on the Application Form. The New Evidence is Reasonably Capable of Belief: Third Threshold Test [ 29 ] Neway points out that for reasons unexplained, when Ms. Petty was provided suspect signatures, she was given only two of approximately 30 documents that bore Mr. Nguyen’s signature. Neway states that Mr. Nguyen “cherry picked” the signature samples he gave to Ms. Petty to receive a favourable report and to mislead the court. In its memorandum of argument, Neway provides a detailed criticism of the limited information that was provided to Ms.

Petty and why her analysis is highly suspect. [ 30 ] Furthermore, since 2013, Saskatchewan’s Revised Rules of court introduced Rule 5-37, which requires expert witnesses to certify that they are aware of their duty to assist the court and not act as an advocate for any party and to provide opinion evidence that is objective and nonpartisan. Ms. Petty’s report does not satisfy this Rule. Would the New Evidence Affect the Trial Result?: Fourth Threshold Test [ 31 ] For reasons previously explained, even if this Court ordered a new trial to admit Ms. Petty’s report, the trial result is unlikely to change.

The entirety of Mr. Nguyen’s action was based on the existence of a contract, the terms of which were accurately described in the document that Mr. Nguyen rather illogically suggests bears his forged signature. And, respecting the counterclaim, the trial judge found (at para. 5) that Neway “[did] not need the plaintiff’s signature to make that claim, and forging his signature would provide no real benefit or advantage to the defendant.”

CONCLUSION [ 32 ] The application to adduce new evidence is dismissed and, consequently, the appeal fails. Neway is entitled to have its costs of the appeal taxed and paid. J. D.H. LAYH