DAVID ZAZULA PLAINTIFF - v. -, 2022 SKKB 222

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 222 Date: 20 22 10 03 Docket: QBG-MF-00010-2021 Judicial Centre: Melfort BETWEEN: DAVID ZAZULA PLAINTIFF - and - GORDON NICHOL DEFENDANT Counsel: David Zazula self-represented plaintiff Gordon Nichol self-represented defendant JUDGMENT LAYH J. October 3, 202 2 History of Mr. Zazula’s Claim [ 1 ] David Zazula of Aylsham, Saskatchewan appeals the decision of the Small Claims Court, alleging error because the trial judge dismissed his claim against the defendant, Gordon Nichol of Tobin Lake, Saskatchewan, and awarded costs of $1,500 in favour of Mr.

Nichol. [ 2 ] In brief, the following facts are not largely disputed. In May 2016, Mr. Nichol asked Mr. Zazula if he might be interested in renting a neighbouring property to his daughter, Taylor Nichol, who was moving into the community. Mr. Nichol apparently stated words to the effect that Ms. Nichol would be the best renter Mr. Zazula ever had. Initially, for several months, Ms. Nichol was a good tenant. However, she allegedly became involved with drugs, stopped paying rent in April 2017 and left the property in June 2017. Mr.

Zazula attended the property on July 3, 2017 when he found several articles in the rental property as well as garbage, rotting food and animal feces . Apparently, Mr. Nichol offered Mr. Zazula $1,400 in exchange for delivery of Ms. Nichol’s property, an offer Mr. Zazula declined. On September 20, 2017, Mr. Nichol attended the property with three other persons and after some confrontation with Mr. Zazula, Mr. Nichol removed Taylor’s belongings. What conduct constituted that confrontation would become the grounds for certain of Mr. Zazula’s claims against Mr.

Nichol. [ 3 ] Nearly two years after the confrontation, on July 30, 2019, Mr. Zazula launched an initial statement of claim against Mr. Nichol. Although seeking damages from Ms. Nichol, she was not named as a defendant. Mr. Zazula claimed damages of $6,044.27 against both Mr. Nichol and Ms. Nichol, allegedly arising from the cost of “fumigating, cleaning, pet dog damage, moving storage, repairing the property,” “non-payment and storage of Taylor’s property,” and “Emotional Distress…which…required medical care.” [ 4 ] Slightly more than two weeks later, on August 16, 2019, Mr. Zazula amended his claim.

In this claim, Mr. Zazula disjointly alleged several grievances against Mr. Nichol. In paragraph 3 of the amended claim, Mr. Zazula stated that the ensuing claims “shall become discoverable as to the reality of purposefulness of Gordon’s [Mr. Nichol’s] conduct in relation to a reasonably prudent person.” [ 5 ] The causes of action alleged by Mr. Zazula arise principally from the apparent confrontation on September 20, 2017. Mr. Zazula alleges that Mr. Nichol assaulted him and that Mr. Nichol’s conduct grounded “the Tort of Intentional Infliction of Emotion Distress.” Mr.

Zazula supports his claim in averments, including the following: 4. The Plaintiff states that on September 20, at 12:06PM, 2017, while being on his rental Property, Gordon did with the intent to

alarm and injure the Plaintiff by conveying a cellphone message that he knows to be false to wit, “I am afraid, I am frightened. I am fearful for my life. I cannot come and pick-up the rest of my stuff. YOU WILL SHOOT ME!” Subjecting the Plaintiff in a state of shock and alarm for long-term suspicion of harm from a willful deprave mind. 5. The Plaintiff states that on September 20, at approximately 11:43AM, 2017, while being on his rental Property, Gordon did say directly to the Plaintiff, “Do you want to see a close-up photo of yourself?” Then he quickly proceeded to the Plaintiff and slammed his cellphone on the Plaintiff’s face. By the rule of the Law,

an act of Assault. 6. The Plaintiff states that on September 20, at approximately 11:40AM, 2017, while being on his rental Property, Gordon did say directly to the Plaintiff, “Do you want to see something?” and immediately he willfully did an indecent act of exposing his sexual genitalia, saying, “Look you punk.” This act summarizes the recklessness of a depraved mind. 7. The Plaintiff states that in the month of March, 2017, Gordon did request R.M. #486 to snowplough the road lane for Taylor Nichol on NW7 53 11 W2 and the service was completed.

There being no verbal or written agreement for the Plaintiff to be responsible for payment of service. On or about April 19, 2017, Gordon was asked to pay, however has since refused to pay. 8. The Plaintiff states that the harm, suffering inflected [ sic ] by Gordon Nichol to the Plaintiff commenced September 20, 2017, is described as: a. The anguish, distress caused headache pain from overstressing regarding the turmoil of all the chaos involved.

The agony suffering caused depression which suppressed the thought pattern being disrupted which in turn has caused loss of productivity, the proof of being what was not accomplished in the time-frame of calculation; b. With the turmoil of the chaos involvement with Gordon brought in abnormal stomach issues from the emotional stress and chest malfunctioning, the severity of the emotional distress effected the Plaintiff sleep pattern to short periods, so stress leads to more stress and eating habits were and still are disrupted to snacks at irregular times. This list not all inclusive. c.

This Gordon event, when taken in a calculation of fairness in comparison to the Plaintiff’s normal aging process and added 2-2.5years. 9. The Plaintiff states being that Gordon’s conduct completely failed to meet the Standard of Care imposed on him, thus the Tort of Intentional Infliction of Emotional Distress prevails to redress Gordon’s wrongful conduct, being as such: a. Outrageous conduct by the defendant; b. Reckless disregard ca using emotional distress; c. Shock received from the defendant’s conduct; d. A pattern of multiple outrage; e. Chronic bulling [ sic ] attributes; f.

Harbours barbarous characteristics; g. Possesses deceptive characteristics; h. Possesses knavery characteristics. 10. The Plaintiff states the defendant’s conduct was extreme and outrages that goes beyond all bounds and decency to which a reasonable person in a civilized society would be expected to tolerate [ 6 ] As compared to his earlier claim, Mr. Zazula advanced significantly greater damages, moving from a claim of $6,044.27 against both Mr. Nichol and Ms. Nichol to a claim of $23,950.00 against only Mr. Nichol. In his prayer for relief in the amended claim, Mr. Zazula claimed as follows: 11.

Therefore, the Plaintiff claims against the Defendant as follows: a. General damages in the amount of $23,950.00; b. Punitive damages; c. Exemplary damages; d. Non-Pecuniary general damages: e. Pecuniary damages; f. Special damages; g. Interest thereon in accordance with the Pre-Judgement Interest Act; h. Costs. [ 7 ] In his reply by defendant of February 28, 2020, Mr. Nichol denied the claim, stating in a sole sentence, “All parts, claim is riddled with lies.”

[ 8 ] The matter then proceeded to trial before Judge Cardinal on October 7 and 9 and November 24, 2020. The trial transcript consists of 451 pages. Judge Cardinal gave an oral decision on December 2, 2020, dismissing Mr. Zazula’s claim and ordering $1,500 in costs against him. [ 9 ] Mr. Zazula filed his notice of appeal in the Court of Queen’s Bench on December 31, 2020, signed by himself. It read as follows: 1. The learned trial judge erred in failing to find that negligent misrepresentation by the Respondent had caused the Appellant to enter into the lease with Taylor Nichol because: a.

There was a special relationship between the Appellant and Respondent; b. The evidence established the Respondent had misrepresented his daughter as a good renter; c. The Respondent acted negligently in making his representation; d. The Appellant relied on the negligent misrepresentation of the Respondent; and e. The misrepresentation of the Respondent was detrimental to the Appellant and caused him damages. 2. The learned trial judge erred in ruling that the tort of Intentional Infliction of Mental Distress was not proven for the following reasons: a.

The evidence established that the conduct of the Respondent was flagrant and outrageous; b. The evidence established that the conduct of the Respondent was calculated to harm the Appellant; and c. The evidence established that the conduct of the Respondent caused a visible illness to the Appellant. 3. That the learned trial judge erred in awarding costs of S1,500 because: a. The Appellant pursued his claim to judgment; b. The Appellant refused to pay snow plow fees; c. The Appellant delayed in bringing the claims when there was no finding the claim was in breach of The Limitations Act , SS 2004, c L-16.1 ; d.

There were no exceptional circumstances justifying an award of costs; e. The Appellant did not take steps to delay the proceeding or increase the cost of the Respondent; f. Adjournments were sought by the Appellant because of health issues; g. The Appellant during argument sought leave to withdraw parts of his action; and; h. The Appellant’s actions did not justify an award of costs beyond the direct expenses of the Respondent as found by the learned trial judge to be $730.00. 4. The learned trial judge erred in failing to consider material evidence in the inconsistencies of witness testimony; 5.

The learned trial judge made findings of fact contrary to the evidence and weight of evidence for which further particulars will be provided when the transcript is available; 6. The learned trial judge erred in law in refusing the Appellant’s applications with regard to additional evidence that was important for the Appellant’s case. 7. Such further and other grounds as counsel may advise and this Honourable Court allow. Relief Sought 8. The Appellant seeks to have the appeal granted with costs and a new trial ordered. [ 10 ] As the court file shows, Mr. Zazula then engaged the law firm of Kapoor, Selnes & Klimm.

It successfully brought an application in February 2021 to extend time for service of the notice of appeal. Then, by correspondence of August 11, 2021 directed to the Local Registrar of the Court of Queen’s Bench, Mr. Selnes advised the court that Mr. Zazula had “filed complaints with The Saskatchewan Provincial Court Judicial Council and the Ministry of Justice against the Honourable Judge I. J. Cardinal.” Mr. Selnes requested that the appeal (which had been set for August 2021) be adjourned until the complaints were resolved.

Justice Haaf granted the adjournment to a date “approximately 3 or 4 months from now.” [ 11 ] On December 29, 2021, Kapoor, Selnes & Klimm filed with the court a Memorandum of Argument [Memorandum] respecting the appeal. [ 12 ] Seemingly the appeal was to proceed on February 1, 2022. However, the day before, Mr. Selnes addressed correspondence to the court stating, “…I am making an application to withdraw as counsel for Mr. Zazula for ethical reasons.” The

request came before Justice Danyliuk on February 1, 2022. In part, Justice Danyliuk wrote: … The appeal has been before this court for approximately one year, having been filed with this court, December 31st, 2020 and of course, the history of the small claims matter pre-dates this appeal by some time. This appeal was also set down for hearing in August of 2021 and adjourned ultimately to today at the request of Mr. Selnes who was at the time representing the appellant, Mr. Zazula. Mr. Zazula now finds himself in a position where he must seek an adjournment again because Mr.

Selnes decided to seek leave to withdraw for ethical reasons only yesterday. It is correct that the court does not inquire into those ethical reasons as between a lawyer and his or her client and I did not do so and will not so. I must take that at face value and with respect to Mr. Selnes, I have no reason to take it any other way. Accordingly, and with significant reluctance, I am forced to adjourn this matter again. However, I am going to impose some terms. If Mr.

Zazula wishes to obtain alternate legal counsel, he must do so and either he or that new lawyer shall advise the Local Registrar at Melfort of the identity of that new lawyer by March 15, 2022. That is not to say the appeal will be heard that date. It will not, but Mr. Zazula needs to have a lawyer in place for this by March 15th. [ 13 ] By correspondence of March 15, 2022, Merchant Law Group LLP advised the court that Mr. Zazula had retained Mr. Dwayne Braun of that firm to represent him in the appeal. The appeal was set for July 28, 2022. [ 14 ] By correspondence of July 25, 2022, Mr.

Braun advised the court that Mr. Zazula had “elected to represent himself on the Appeal…” [ 15 ] The appeal proceeded before me on July 28, 2022. Mr. Zazula was self-represented. Mr. Zazula arrived late. The hearing commenced at 10:15 a.m. After Mr. Zazula had begun his argument, I advised him that his presentation would be limited to 45 minutes. In fact, Mr. Zazula was allowed 53 minutes to present his argument. [ 16 ] Mr. Nichol was personally present at the appeal. He offered no argument. [ 17 ] Mr. Zazula’s argument was difficult to follow.

For the most part, he quoted sections of the trial transcript but did not set such quotations within either the issues raised in his notice of appeal or in the Memorandum filed by the Kapoor, Selnes & Klimm law firm on December 29, 2021. Issues in Appeal [ 18 ] Given the disjointed oral argument advanced by Mr. Zazula, the court will take the issues and arguments advanced in the Memorandum filed December 29, 2021, as follows: ISSUES A. WHAT IS THE STANDARD OF REVIEW WITH REGARD TO A FINDING OF FACT? B.

DID THE LEARNED TRIAL JUDGE ERR IN FACT AND LAW IN FINDING THAT NEGLIGENT MISREPRESENTATION WAS NOT MADE OUT ON THE FACTS? C. DID THE LEARNED TRIAL JUDGE ERR IN FACT AND LAW IN FINDING THAT THE TORT OF INTENTIONAL INFLICTION OF MENTAL DISTRESS WAS NOT MADE OUT ON THE FACTS? D. DID THE LEARNED TRIAL JUDGE ERR IN MIXED FACT AND LAW IN AWARDING COSTS IN THE AMOUNT OF $1,500 AGAINST THE APPELLANT? E. DID THE LEARNED TRIAL JUDGE ERR IN FACT BY FAILING TO CONSIDER MATERIAL EVIDENCE IN THE INCONSISTENCIES OF WITNESS TESTIMONY? F.

DID THE LEARNED TRIAL JUDGE MAKE FINDINGS OF FACT CONTRARY TO THE EVIDENCE AND WEIGHT OF EVIDENCE? G. DID THE LEARNED TRIAL JUDGE ERR IN LAW BY REFUSING THE APPELLANT’S APPLICATION WITH REGARD TO ADDITIONAL EVIDENCE THAT WAS IMPORTANT TO THE APPELLANT’S CASE?

Analysis Standard of Review [ 19 ] I agree with the assertion found in the Memorandum that the standard of review respecting appeals pursuant to s. 44 of The Small Claims Act, 2016 , SS 2016, c S-50.12 [ Act ] was explained in Beahm v Smith, 2018 SKQB 340 [ Beahm ]. [ 20 ] Given the discussion in paras. 15 to 19 of Beahm I will be guided by the following principles in this appeal: (

a) Questions of law are reviewable on the standard of correctness; (

b) Findings of fact are reviewable on the standard of palpable and overriding error; and (

c) Questions of mixed fact and law are reviewable on the standard of reasonableness. Negligent Misrepresentation

[21] Mr. Zazula accepts that Judge Cardinal correctly stated the law respecting negligent misrepresentation, as foundin Queen v Cognos Inc., (SCC), [1993] 1 SCR 87 at 88-89.

There the court stated five general requirements to make outthe tort: …(1) there must be a duty of care based on a “special relationship” between the representor and the representee; (2) the representation inquestion must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said misrepresentation; (4)the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and (5) the reliance must have beendetrimental to the representee in the sense that damages resulted. [22] Mr.

Zazula takes exception with Judge Cardinal’s conclusion respecting the first and second requirements whenshe found that no special relationship existed between Mr. Zazula and Mr. Nichol and that Mr. Nichol’s representation was not untrue,inaccurate or misleading. Mr. Zazula specifically refers to Judge Cardinal’s statement beginning at T17, line 38: So I turn to the duty of care. In this case, I find that Mr. Zazula has not proven there was a special relationship between him and Mr.Nichol that gives rise to a duty of care. Proximity and reliance are aspects of the duty of care.

There’s no proximity in the sense that Mr.Nichol ought to reasonably foresee that Mr. Zazula will rely on his representation and that reliance by Mr. Zazula on Mr. Nichol’sstatement that Taylor would be the best tenant he ever had, would be reasonable. [23] Notably, Judge Cardinal had more to say about the existence of a “special relationship” between Mr. Nichol andMr. Zazula. She wrote (at T18, lines 9-27): Mr. Nichol suggested to Mr. Zazula that if he is considering renting his property, which was next door to Mr. Nichol, then, perhaps, hecan rent it to Mr. Nichol’s daughter.

He doesn’t recall suggesting $700 per month, as Mr. Zazula said, but he also didn’t take issue withsaying he may have suggested that. Mr. Zazula testified he thought about it for a week and decided to rent it to Taylor and did so. … In any event, it’s clear that any rental agreement was between Mr. Zazula and Taylor Nichol. All rental monies were paid by Taylor toMr. Zazula. Mr. Nichol and Mr. Zazula were neighbours, but that does --- it does not appear they were friends or spent any time together.They had no business relationship. I find Mr. Nichol merely suggested Mr.

Zazula give consideration to renting his property to Taylor. Nothing more. No relationship wascreated and there was no duty of care owed by Mr. Nichol to Mr. Zazula. No one would rely on such a statement from a father about hisown child. Most people would take such statement with a grain of salt. Such a statement is more along the lines of mere puttering doesnot constitute a representation. [24] I find no fault with Judge Cardinal’s decision. I cannot accept, as Mr. Zazula suggests, that “as a neighbour tothe Appellant” Mr. Nichol held a special relationship with Mr. Zazula. Indeed, I find no evidence that Mr.

Zazula and Mr. Nichol evenwere neighbours, only that Mr. Zazula’s rental property neighboured Mr. Nichol’s property. The extent of further familiarity betweenMr. Nichol and Mr. Zazula – let alone a “special relationship” – is not obvious from the evidence. [25] In any event, Judge Cardinal went further, finding that whether or not a special relationship existed, the nextrequirement to ground liability for negligent misrepresentation was absent – the requirement that Mr. Nichol’s statement was untrue,inaccurate or misleading. By Mr. Zazula’s own admission, Ms.

Nichol’s tenancy raised no problems for several months. She paid herrent as required. Only after (as Mr. Zazula alleged) she acquired a drug problem and several months after Ms. Nichol began to rent theproperty did tenancy issues arise. Again, I find no reviewable error with Judge Cardinal’s finding. She wrote at T18, line 29: If I’m wrong, and a duty of care could be found in these circumstances, I find Mr. Zazula has not proven the representation in questionwas untrue, inaccurate, or misleading. I accept Mr.

Nichol’s evidence that he subjectively believed his daughter would be a good renter.The evidence shows there was no concern until June 2017, approximately one year after the rental had been in place. Even Mr. Zazulatestified things were good until he found the mess that Taylor left behind when she vacated. [26] In conclusion, I dismiss Mr. Zazula’s appeal alleging that Judge Cardinal erred respecting her findings that Mr.Nichol had not made negligent misrepresentations. Intentional Infliction of Mental Suffering [27] In the Memorandum at paras. 37 to 42, Mr.

Zazula grounds his claim of intentional infliction of mentalsuffering on an alleged statement that Mr. Nichol made to Mr. Zazula after Mr. Nichol picked up Ms. Nichol’s personal belongings onSeptember 20, 2017. Mr. Zazula states that Mr. Nichol later telephoned him and told him that he (Mr. Nichol) feared for his life and thathe was afraid Mr. Zazula might shoot him. Mr. Zazula alleges that this statement shook him to his core and, consequently, grounds afinding of intentional infliction of mental suffering. [28] Seemingly, Mr.

Zazula accepts that Judge Cardinal correctly stated the legal requirements to prove the tort ofintentional infliction of mental suffering, but only that she erred in finding the appropriate facts to substantiate the tort. Respecting thelegal test, Judge Cardinal wrote at page T20 and 21: In order to succeed, Mr. Zazula must prove on a balance of probabilities: (1) the defendant’s conduct was flagrant and outrageous; (2)the defendant’s conduct was calculated to harm the plaintiff; (3) the defendant’s conduct caused the plaintiff to suffer a visible andprovable harm. [29] Notably, at trial, Mr.

Zazula grounded his claim of intentional infliction of mental suffering not singularly onthe phone call (which Mr. Nichol admitted he made), but on three instances of emotional distress intentionally caused by Mr. Nichol:that Mr. Nichol assaulted him with a cell phone by pressing it to his head, that he exposed himself to Mr. Zazula by joggling his genitalstoward him and that he made the phone call.

[ 30 ] Respecting the phone call, Judge Cardinal’s finding of facts respecting Mr. Nichol’s statement that he was afraid Mr. Zazula might shoot him are found at page T22-23: He [Mr. Nichol] said Mr. Zazula’s lack of self-control, not temper, and poor judgment, made him worry there would be a dangerous escalation. He said he tried his best to defuse the situation. And he said once they had loaded up and left, he testified he did call Mr. Zazula around noon and told him he was not coming back for anymore property, as he was afraid Mr. Zazula would shoot him. [ 31 ] Although Judge Cardinal accepted that Mr.

Nichol had made the phone call, Judge Cardinal provided detailed factual findings, amply supported by the evidence, that Mr. Nichol neither assaulted Mr. Zazula with a cell phone by holding it up to his face nor that he joggled his “sex organ” and said to Mr. Zazula, “Hey, look at this.” Seemingly, in this appeal, Mr. Zazula does not challenge Judge Cardinal’s findings that neither an assault nor an indecent exposure happened. The sole question on appeal is whether the tort has been proven by the phone call during which Mr. Nichol told Mr. Zazula that he would not return to the property because he was afraid Mr.

Zazula would shoot him. [ 32 ] After Judge Cardinal found at page T25, that Mr. Zazula had “not proven any of the three allegations on a balance of probabilities,” she specially addressed the comment about Mr. Nichol’s fear of being shot. She wrote at page T25 and T26: Further, the fact that Mr. Zazula may be upset and stressed about the comment Mr. Nichol made that Mr. Zazula would shoot him does not support this tort for intentional infliction of emotional distress.

I find the underlying conduct complained of to support the tort of intentional infliction of emotional distress is not supported on any of the three incidences outlined … by Mr. Zazula and I dismiss his claim in its entirety. [ 33 ] Although Judge Cardinal’s comments respecting Mr. Nichol’s fear of being shot are brief, I cannot accept, as Mr.

Zazula states in the Memorandum at para. 42 that “This statement caused the Appellant to experience mental anguish, lose his appetite, and resulted in him needing medical prescriptions.” I find nothing in the Memorandum that points to any evidence that supports this bold assertion. [ 34 ] That Mr. Nichol’s fear of Mr. Zazula, real or imagined, was intended to cause Mr. Zazula emotional suffering is an odd allegation to make. I find nothing in the evidence that would have allowed Judge Cardinal to accept that Mr. Nichol’s conduct was flagrant and outrageous or that his conduct was calculated to harm Mr. Zazula.

Nor do I find any evidence to support the finding that Mr. Zazula’s need for medical prescriptions could be attributed to his emotional distress. [ 35 ] In conclusion, I find no grounds to alter Judge Cardinal’s findings, either in law or as a palpable factual error, when she found no support for the allegation that Mr. Nichol had intentionally inflicted emotional harm upon Mr. Zazula. Costs [ 36 ] Mr. Zazula appeals Judge Cardinal’s award of $1,500 of costs, the equivalent of 6.3 percent of Mr. Zazula’s claim. [ 37 ] Respecting costs, Judge Cardinal wrote as follows at page T26 and T28: …I now turn to Mr.

Nichol’s application for costs against Mr. Zazula. And I’ve mentioned some of that already about how this Court now has the ability to order costs and that Mr. Nichol has indicated that he is seeking certain costs. I note with respect to costs, that I find they are appropriate to be awarded in this case. The quantum yet to be determined. But they’re – I find that they are proper in this case, as Mr.

Zazula pushed his claim forward to trial over the course of two full days of evidence on October 6th and 9th, 2020, he resisted proceeding to argument on October 27th, 2020, as he stated he needed more time to prepare, and went so far as to have a lawyer appear. More time was granted and Mr. Zazula did not have a lawyer, but presented argument himself. Inexplicably, Mr. Zazula then attempted to abandon his claim concerning the tort of intentional inflectional of emotional distress insofar as the assault and indecent exposure were concerned. This, after over two years over which Mr.

Zazula claims these allegations have been causing him so much stress that he’s entitled to pay $23,999 in damages. Now, today, the day I’m to give my decision on his claim, Mr. Zazula is too busy to attend court and to stay on the line to hear the decision. …I find that this behaviour by Mr. Zazula is an indication that he was pursuing this claim to the bitter end simply to push Mr. Nichol to defend himself every step of the way. When Mr.

Zazula foresees things are not going his way, especially in court, he suddenly decides he need not participate any further. … [T]hese [costs] can all be assessed under Section 36(3) of the Small Claims Act, 2016 . I’m going to award Mr. Nichol, as well, further costs due to the baseless allegations Mr. Zazula levelled and the time that it ---I take into consideration that this thing went right through to trial, to argument, before Mr. Zazula then suddenly decides he wants to abandon the main --- the assault and the other remaining alleged indecent exposure that I found did not happen.

And I’m going to award damages in the amount of $1,500 for that. [ 38 ] Mr. Zazula’s appeal respecting costs is grounded in his assertion that Judge Cardinal “made a palpable and overriding error in using these factors…” However, what the Memorandum fails to mention is that costs are commonly awarded in favour of the successful party and against the unsuccessful party.

Nothing in the Memorandum suggests an appropriate alternate quantum of costs, implying that Judge Cardinal should have awarded no costs. [ 39 ] Nor does the Memorandum cite the statutory context within which Provincial Court judges must consider an award of costs. Mr. Zazula does not place his grounds of appeal respecting costs within the context of the Act or The Small Claims Regulations, 2017 , RRS c S-50.12 Reg 1 [ Regulations ] . The Act specifically addresses the court’s jurisdiction to award costs in a small

claims action, stating: 36(1) A judge may at any time, in any proceeding before the court, award costs, other than lawyer-related costs, on any terms and conditions that the judge considers appropriate, including: (

a) the prescribed fee for issuing a summons or a notice of third party claim; (

b) costs incurred to effect service; (

c) fees paid to a witness pursuant to

section 23; and (

d) charges incurred pursuant to

section 30.

(2) Subject to the regulations, a judge may at any time, in any proceeding before the court, award additional costs, other than lawyer- related costs, on any terms and conditions that the judge considers appropriate for each instance in which a party: (

a) without reasonable excuse, fails to attend or prepare for any stage of a proceeding before the court; or (

b) takes any step for the purpose of delaying a proceeding or increasing costs of another party.

(3) Subject to the regulations, in addition to any costs awarded pursuant to subsection (1) or (2), a judge may, at the conclusion of a matter, award additional costs, other than lawyer-related costs, on any terms and conditions that the judge considers appropriate if the judge is of the opinion that additional costs are appropriate after taking into account one or more of the following factors: (

a) access to justice; (

b) fairness to the parties; (

c) whether or not the defendant or third party prepared a reply; (

d) any offer to settle made by a party; (

e) the conduct of the parties; (

f) the failure of a party to comply with an order of a judge made pursuant to this Act ; (

g) any other factor that the judge considers appropriate. [ 40 ] The Act is clear that a judge may award costs at any time during the proceedings as well as at the conclusion of the matter. Judge Cardinal awarded modest costs of $1,500, as she considered appropriate, taking into account several itemized factors. As the Court of Appeal in Saskatchewan has repeatedly stated, costs are in the discretion of the court and subject to review only if the order is arbitrary. In L.R. v.

V.D.R ., 2006 SKCA 39 , 279 Sask R 306 the court stated: [10] It is clear that orders as to costs are discretionary and this Court will interfere only if it is shown that the order was made arbitrarily or without regard to the applicable principles.

The appellant has demonstrated no such error. … Although the order fixing costs may be somewhat in excess of what the tariff of costs would allow, and the Chambers judge offers no express reasons for this decision, it is our conclusion that the order was not unreasonable in the circumstances. [ 41 ] The Regulations further limit the quantum of costs to 10 percent of the amount of the claim.

Section 6 states: 6(1) Except in exceptional circumstances, costs awarded pursuant to clause 36(2) (

a) of the Act shall not exceed $200 for each instance in which a party, without reasonable excuse, fails to attend or prepare for any stage of a proceeding before the court.

(2) Costs awarded pursuant to clause 36(2) (

b) of the Act shall not exceed $500 for each instance in which a party takes any step for the purpose of delaying a proceeding or increasing costs of another party.

(3) The total costs awarded in favour of a party pursuant to subsection 36(3) of the Act shall not exceed the greater of the following amounts: (a) $200; (b) 10% of the amount of the claim.

(4) If a matter involves a counterclaim or a third party claim, the judge may choose the claim of the highest amount or value to determine the maximum costs that may be awarded pursuant to subsection (3). [ 42 ] Judge Cardinal’s award of costs is well below the maximum amount permitted by the Regulations . Ten percent of Mr. Zazula’s claim would have been $2,395. Failure to Consider Material Evidence [ 43 ] In the Memorandum Mr. Zazula alleges that Judge Cardinal made palpable and overriding errors when she failed to consider inconsistencies in the testimony of the three persons who attended the rental property with Mr. Nichol. The Memorandum at paras. 58 – 61 reads as follows:

58. The Appellant points to the following inconsistences: a. Manoly Milas stated from page 239 line 24 to page 241 line 31 of the Trial that: i. The Appellant was standing in their way; ii. That no one wanted to come near the Appellant; and iii. That he wanted to give the Appellant a wide berth. b. Wilfred Ewert stated from page 272 line 7 to page 274 line 37 that: i. The Appellant did not interfere physically; ii. The Appellant was talking while they loaded the trailer iii. The talking was not a problem. c. Stirling Fudge stated from page 290 line 9 to line 15 that: i.

The Appellant was not trying to stop them; and ii. The Appellant was around them while they loaded. 59. Her Honour summarized the testimony of the Respondent, Manoly Milas, Wilfred Ewert and Stirling Fudge from Page 23 line 7 to line 14 of the Decision. In doing this Her Honour characterized the interactions as all of the witnesses being upset or afraid of the Appellant. 60. However, all three witnesses varied in the statements regarding the Appellant’s behaviour and Wilfred Ewert went so far as to state that the Appellant did not interfere. 61.

The Appellant submits that Her Honour made a palpable and overriding error… [ 44 ] Frankly, the evidence of these three persons is largely irrelevant. During argument at trial, Mr. Zazula repeatedly equivocated whether or not his claim for intentional infliction of mental suffering would be based solely on Mr. Nichol’s comment that he was afraid that Mr. Zazula would shoot him or that his claim would also be based on Mr. Nichol’s alleged assault with the cell phone and the joggling of his genitals. One can find much discussion between Mr.

Zazula and Judge Cardinal (pages T422 to T430 and T438 to T442 of the trial transcript) where Judge Cardinal repeatedly attempted to clarify what parts of his claim Mr. Zazula wished to abandon. Finally, given Mr. Zazula’s equivocation, Judge Cardinal, at page T442, simply stated that she would consider all three incidents as potentially relevant to Mr. Zazula’s obligation to prove the tort. However, nothing in the testimony of the three witnesses bears any relevance to whether there was an assault, whether Mr. Nichol joggled his genitals or whether he told Mr. Zazula that he was afraid of him.

In other words, little turns on the brief assessment Judge Cardinal made of the three witnesses’ testimony. [ 45 ] This ground of appeal is dismissed. Trial Judge Made Findings of Fact Contrary to the Evidence [ 46 ] The Memorandum, at para. 62, asserts that Judge Cardinal did not receive evidence that would have permitted her to state that Mr. Zazula had “fabricated allegations of being assaulted with a cellphone.” This assertion is largely irrelevant because, earlier in the Memorandum, Mr.

Zazula’s sole objection to Judge Cardinal’s finding that no tort of intentional infliction of mental suffering had been made out was based on Judge Cardinal’s non-acceptance of fear Mr. Nichol caused Mr. Zazula by the phone call. Nothing in the Memorandum respecting Judge Cardinal’s decision that the tort had not been made out suggests any relevance to the question whether or not Mr. Nichol had assaulted Mr. Zazula with a cell phone. [ 47 ] In any event, as a finding of fact, Judge Cardinal did not accept, on a balance of probabilities, that Mr. Nichol had assaulted Mr. Zazula.

Judge Cardinal provided reasons why she did not accept Mr. Zazula’s evidence respecting either the alleged assault or the joggling of Mr. Nichol’s genitals. Finally, according to Mr. Zazula’s own argument neither of these two alleged incidents related to the tort. [ 48 ] This ground of appeal is dismissed. Conclusion [ 49 ] The entirety of Mr. Zazula’s appeal is dismissed. [ 50 ] Respecting costs of this appeal, I find guidance in two sources: the Act and comments offered by Justice Danyliuk in his fiat of February 1, 2022. [ 51 ]

Section 7 of the Regulations states: 7 On an appeal, a judge of the Court of Queen’s Bench may grant the successful party the costs of the appeal in accordance with the Tariff of Costs to The Queen’s Bench Rules . [ 52 ] Justice Danyliuk, when faced with Mr. Zazula’s request for an adjournment of the appeal, wrote:

….This matter is pushing the boundaries of what is reasonable and it is clear Mr. Nichol has already lost patience with this matter and I would say this court is not terribly far behind in this regard. The matter of costs of both adjournments, that of August 2021 and that of today, are specifically reserved to be dealt with by the Judge who hears and disposes of this appeal. I do note that Mr. Nichol did appear personally today which is the day following a substantial storm through central and southeast Saskatchewan. One that saw a great majority of highways closed yesterday.

Yet, he has appeared personally to deal with the matter and costs ought to be considered by the Judge rendering the final decision on this appeal. I recognize Mr. Nichol’s frustration. The right of appeal of a trial decision exists for a reason and indeed had this gone against him in front of Judge Cardinal I have no doubt Mr. Nichol would welcome the ability to appeal. I understand saying that does not do much to assist him today or going forward. Today is the best that the Court has to offer. [ 53 ] Given these considerations, I order costs in the amount of $1,500 to be paid by Mr. Zazula to Mr.

Nichol within 30 days. J. D.H. LAYH