VINCENT T. MCKAY APPELLANT - v. –, 2022 SKKB 280

KING ’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 280 Date: 2022 12 21 Docket: QBG-RG-01364-2022 Judicial Centre: Regina BETWEEN: VINCENT T. MCKAY APPELLANT - and – WHEATON AUTOMOTIVE LTD. AND JOHNATHAN MULA RESPONDENTS Appearing: Vincent T. McKay self-represented appellant Daniel Kwochka, K.C. for the respondents DECISION ON APPEAL ROBERTSON J. December 21, 2022 INTRODUCTION [ 1 ] This decision addresses an appeal under s. 44 of The Small Claims Act , 2016 , SS 2016, c S-50.12 [ Act ] from an oral decision of the Provincial Court delivered following trial on May 10, 2022.

For the reasons which follow, the appeal is dismissed. BACKGROUND [ 2 ] The appellant, Vincent T. McKay, [Mr. McKay] was the plaintiff in the small claims action. His statement of claim claimed damages of $28,829.94, representing the value of a Kia Soul vehicle which he purchased from the respondent, Wheaton Automotive Ltd. [Wheaton] on or about June 30, 2019. Wheaton and the respondent, Johnathan Mula [Mr. Mula] were defendants in the

small claims action. Mr. Mula was the salesperson for Wheaton in the sale of the vehicle to Mr. McKay. [ 3 ] Mr. McKay, in the statement of claim, alleged that the Kia Soul which he accepted was not the one he wanted to purchase and that the vehicle he took had flaws, described at paragraph 8 of his statement of claim as:

a) A grinding steering wheel.

b) A thud in shifting.

c) The driver’s seat is somewhat collapsed. [ 4 ] Trial occurred on May 2, 2022. Both parties were represented by lawyers. The plaintiff called three witnesses: Vincent McKay; William Borbely; and Gregory Gilbertson. Decision was reserved. [ 5 ] The Provincial Court judge gave his oral decision on May 10, 2022 dismissing the claim and awarding costs of $1,050 payable by the plaintiff to the defendants. The oral decision is recorded in the transcript at pages T148-T159. [ 6 ] The Notice of Appeal stated the following grounds of appeal: 1. Court Procedure (Judge P. Demong was inaudible.) 2.

New evidence and in proper presidentation [ sic ] of existing filed evidence by Plaintiff legal council. (Did not present documents requested by plaintiff). Unfiled documents (Def.) permitted by Judge Demong, etc ISSUES [ 7 ] The grounds of appeal were apparently written by Mr. McKay without the assistance of a lawyer. As far as I understand them, they may raise two issues: 1. Was there an error in court procedure? 2. Was there an error in admission of evidence? ANALYSIS Appeal on the Record [ 8 ]

Section 45 of the Act provides that the appeal is on the record. The Provincial Court file was provided to the Court of King’s Bench, including exhibits and a certified transcript of the trial, so the record was complete. Standard of Review on Appeal [ 9 ] For questions of law, the standard of review is correctness.

For questions of fact (or for questions of mixed law and fact where the legal principle is not readily extricable), the standard of review is palpable and overriding error. [ 10 ] A helpful explanation of the applicable standard of review in the context of appeals taken pursuant to s. 44 of the Act is provided by McCreary J. (as she then was) in Premium Fire Protection Ltd. v Moffatt , 2021 SKQB 121 at paras 8-10 : [8] The right of appeal in a civil matter heard in the Provincial Court of Saskatchewan, Small Claims, arises from s. 44 of The Small Claims Act, 2016 , SS 2016, c S-50.12 and

Part 14 of The Queen’s Bench Rules. [9] The standard of review of errors of law is correctness: Housen v Nikolaisen , 2002 SCC 33 at paras 1 and 8 , [2002] 2 SCR 235 [ Housen ] . In contrast, a finding of fact is only to be overturned if there is a “palpable and overriding error”: Housen at para 10 . If the matter being reviewed involves the application of a legal standard to a set of facts, then it is a question of mixed fact and law, and the appropriate standard of review must be determined and applied: Housen at para 27 .

If the trial judge considers all the evidence but still reaches the wrong conclusion, then the matter is to be reviewed on the standard of palpable and overriding error. However, if the error relates to the trial judge’s characterization of a legal standard, then the standard of review is correctness: Housen at paras 27-28 and 30 . [10] In this case, the trial judge made findings of fact, applied law, and exercised his discretion respecting the admission of certain evidence and the weight to put on it pursuant to The Small Claims Act, 2016 .

Where it is alleged that the trial judge considered the evidence before him but reached the wrong conclusion, that standard of review is that of palpable and overriding error. The same standard applies to questions respecting the trial judge’s use of discretion: Rimmer v Adshead , 2002 SKCA 12 at para 48 , 217 Sask R 94 . Where it is alleged that the trial judge applied the wrong standard of law, then the applicable standard of review is correctness. [ 11 ] Certain principles apply when a court determines whether the palpable and overriding test has been met.

The specific language used in the phrase “palpable and overriding error” is significant. The language is disjunctive and contains two distinct parts. First, an error must be palpable; that is, it must be plainly seen. Second, an error must be overriding; that is, it must affect the overall result. See: Law Society of Saskatchewan v Abrametz , 2022 SCC 29 at para 113 , 470 DLR (4th) 328 [ Abrametz ] ; and Hydro- Quebec v Matta , 2020 SCC 37 at para 33 , 450 DLR (4th) 547 .

Both parts of the test must be satisfied before appellate intervention may be warranted. [ 12 ] The magnitude of any alleged error must go to the very core of the result of the decision. In Benhaim v St- Germain , 2016 SCC 48 at paras 38-39 , [2016] 2 SCR 352 , the Supreme Court adopted a description of a palpable and overriding error as akin not to a needle in a haystack but to a beam in the eye:

38 It is equally useful to recall what is meant by "palpable and overriding error". Stratas J.A. described the deferential standard asfollows in South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46: Palpable and overriding error is a highly deferential standard of review .... "Palpable" means an error that is obvious. "Overriding" meansan error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull atleaves and branches and leave the tree standing. The entire tree must fall. 39 Or, as Morissette J.A. put it in J.G. v.

Nadeau, 2016 QCCA 167, at para. 77 , [TRANSLATION] "a palpable andoverriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last twonotions." [Emphasis added] [13] See also Arcan v Atsu, 2021 SKCA 81 at paras 6-7. [14] Finally, an appellate court must show deference to a tribunal’s findings of fact. In Abrametz at paras 113-114,the Supreme Court emphasized that an appellate court is not free to interfere with factual conclusions merely because it disagrees withthe weight the trial judge assigned to the underlying evidence.

Deference must be given to findings of fact and the court may not re-weigh the evidence or substitute its own findings for those of the trier of fact: 113 One must ask, under a deferential standard of review, is this what appellate courts are called on to do? The "primary role" of theHearing Committee was "to weigh and assess voluminous quantities of evidence": Housen [Housen v Nikolaisen, 2002 SCC 33, [2002] 2SCR 235], at para. 18. An appellate court is not free to interfere with factual conclusions merely because it disagrees with the weight tobe assigned to the underlying evidence: para. 23; Benhaim v.

St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352; Hydro-Québec v. Matta,2020 SCC 37, at para. 33. An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it,and is overriding if it has affected the result: Hydro-Québec, at para. 33; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1S.C.R. 401, at paras. 55-56 and 69-70; Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 33. 114 The Court of Appeal departed from its proper role when it substituted its own findings of fact, notably on the scale and thecomplexity of the investigation.

The Hearing Committee's conclusions were grounded in the evidence before it, in particular, theaffidavit of the auditor of the Law Society, Mr. Allen. The Court of Appeal gave no deference to the Hearing Committee's findings, andsimply reweighed this evidence and substituted its own findings. [Emphasis added] [15] See also: Abrametz at para 105; and Martin v Martin, 2022 SKCA 79 at paras 36-37. Appeal Court powers [16]

Section 48 of the Act provides that this Court on appeal may: (

a) allow the appeal and give the judgment that the trial judge should have given; (

b) dismiss the appeal; or (

c) order that the action be returned to the court for a new trial. [17]

Section 49 of the Act provides that the Court may award the costs of the appeal. Position of parties on appeal [18] Mr. McKay read from a document titled “Decision”, a nine page document which details what he views aserrors in the decision, with reference to transcript pages. He also asked that I read another filed document titled “Appellants Conclusion”,a two page document with allegations which Mr. McKay contends demonstrate bias on the part of the trial judge. [19] Wheaton’s response in argument was brief. The essence of the trial was Mr.

McKay’s allegation that Wheatonhad rolled back the odometer on the vehicle he purchased. That is a serious allegation of both civil and criminal fraud that ought not betolerated, given the lack of evidence in support. The claim was properly dismissed because the plaintiff did not meet his burden of proof. Court Procedure [20] From my review of the transcript, I find no error in the procedure at trial nor bias on the part of the trial judge. Admission of Evidence [21] From my review of the transcript, I find no error in admission of evidence at trial. I note that the only witnesseswho testified were called by Mr.

McKay. Review of reasons for trial decision [22] Although the grounds of appeal do not disclose proper grounds, I recognize that Mr. McKay is self-represented,so I read the transcript with a view to identifying any other possible error. I found none. I agree with the trial judge that Mr. McKaysimply failed to prove his claim by establishing liability and damages. [23] The statement of claim identified three possible bases for his claim. There was no evidence to support the first

two. There was evidence about the third basis (“thud” when changing gear from reverse to drive), however, the evidence did not establish liability nor damages. Moreover, as the trial judge found, Mr. McKay had failed to mitigate any possible damages by failing to allow Wheaton to inspect and, if a mechanical fault was found, repair that defect. [ 24 ] In his reasons for judgment, the trial judge commented that “one aspect of Mr. McKay’s case was woefully lacking with an evidentiary basis.

This was the issue of damages.” (Transcript, at p. 151, lines 18-19). [ 25 ] The trial judge also commented on the absence of evidence to support the claimed flaws with the vehicle, stating “There is no evidence presented to support that they exist and no evidence has been tended [tendered] to identify the quantum of damages that are being sought in respect to them.” (Transcript, at p. T152, lines 5-6). In other words, Mr.

McKay simply failed to discharge the onus of proof that was upon him as claimant to establish liability and damages. [ 26 ] The trial judge also found a failure to mitigate any loss by having the vehicle serviced while under warranty. “Considering these failures, Mr. McKay simply cannot succeed on his claim for recovery of monies based only [on] a defective transmission.” (Transcript, at p. T153, lines 16-17). [ 27 ] The decision goes on to consider Mr. McKay’s theory that Wheaton conspired to defraud him by selling him a used vehicle, rather than the new vehicle he agreed to purchase.

Again, the Provincial Court judge rejected that as a “speculative theory” which was not proved. (Transcript, at p. T155, line 7). [ 28 ] From my review of the transcript, these findings are supported by the evidence. There is no palpable or overriding error. [ 29 ] After review of the evidence and arguments, the decision concludes that “the plaintiff has failed to prove his claim as against either defendant.” (Transcript, at p. T158, lines 3-4). The decision is detailed and reasoned, addressing the evidence and arguments made at trial. It is justifiable, transparent and intelligible.

I find no error to support the appeal. CONCLUSION [ 30 ] Mr. McKay failed to prove his claim at trial. I agree with the trial judge that the evidence, which was entirely led by the plaintiff, did not prove the claim. He therefore failed to satisfy the onus of proof on him as plaintiff. Mr. McKay has similarly failed to show error in the conduct of the trial or the trial decision. The appeal is therefore dismissed. Costs [ 31 ]

Section 49 of the Act provides that “ The Court of Queen’s Bench may grant to a successful party the costs of the appeal calculated in accordance with the prescribed tariff.” The Tariff of Costs in

Schedule I-D provides for costs in the Court of Queen’s Bench in Small Claims Appeals. The respondents are awarded costs on Column 4, which applies to claims over $15,000, payable upon presentation of a single bill of costs or, in the event of taxation, upon a decision after taxation. J. D.N. ROBERTSON