Manigeh Sabok-Sir - v. -, 2017 SKPC 038

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 038 Date: April 11, 2017 File No.: SC2015-04 Location: Meadow Lake _____________________________________________________________________________ Between: Manigeh Sabok-Sir - and - Dan Fleury Appearing: Manigeh Sabok-Sir For the Plaintiff Dan Fleury For the Defendant FIAT M. MARTINEZ , J Introduction [ 1 ] The plaintiff commenced this action on May 27, 2015.

[ 2 ] Her claim alleges that on August 13, 2014, she suffered severe hand injuries because the defendant’s dog bit her. Her position is that liability rests on the defendant as he failed to take reasonable steps to control his dog. She asks for judgment against the defendant for non- pecuniary and punitive damages, reimbursement of thousands of dollars in various out-of-pocket expenses, pre-judgment interest, and costs. [ 3 ] For his part, the defendant says that he was not negligent.

He says that the plaintiff was the author of her own misfortune because, as he was using his dog’s leash to pull it away from her dog, she put her hands into the middle of the dog fight and was bitten by both animals. He asks that her claim be dismissed. [ 4 ] The parties attended case management conferences on September 15 and November 3, 2015. [ 5 ] Initially, the trial was set down for hearing on April 12, 2016; however the trial did not proceed as scheduled. [ 6 ] The reason why the trial did not begin is that the plaintiff was not able to attend in person.

She attended by telephone and informed the presiding judge that she was subject to a Canadian Border Services Agency [ CBSA ] order prohibiting her from entering Canada. [ 7 ] She asked that her trial be adjourned for a lengthy period. The defendant opposed her application. In the end, the presiding judge adjourned the trial to August 9, 2016. [ 8 ] On the adjourned date, I was the presiding judge. Once again, the plaintiff appeared by telephone and the trial did not proceed as she still was not allowed into Canada. Once again, the plaintiff asked for a lengthy adjournment.

Once again, the defendant opposed her request. [ 9 ] The plaintiff informed me that, although she was appealing the CBSA exclusion order, she understood that, in any event, it would expire in March 2017. For this reason, before deciding whether to

schedule another trial date, I agreed to adjourn proceedings for a case management/trial scheduling conference on April 4, 2017. [ 10 ] On the adjourned date, the plaintiff again appeared by telephone as she had been refused entry into Canada a few days earlier when she had tried to cross the border at Coutts, Alberta, port of entry. [ 11 ] The plaintiff asked for another adjournment. The defendant strenuously opposed her request. I informed both parties that I would consider their requests and give them my decision in writing. Analysis

[ 12 ] The plaintiff is a resident of Germany. The court’s records show that, at the first case management conference, in September 2015, she declined a potential trial date in November 2015 because her visitor’s visa was set to expire in mid-November 2015. She said that she would not be returning to Canada until March 2016. For these reasons, the case management judge set her action down for trial on April 12, 2016, and held a second case management conference on November 6, 2015. [ 13 ] As I noted earlier, the trial did not proceed on April 12, 2016. Nor was it heard on the adjourned date of August 9, 2016.

On both occasions, the trial of this action did not proceed because the plaintiff was barred from entering Canada. On both occasions she stated that she was appealing her expulsion order and that the order would expire in March 2017. [ 14 ] Contrary to her representations, in April 2017, the plaintiff still cannot enter Canada as an ordinary German citizen might otherwise be able to do. [ 15 ] The plaintiff cannot explain why she remains barred from entering Canada. The plaintiff has not given the court a copy of her expulsion order.

What she did provide to the court on April 4, 2017, is a copy of a Statement of Claim she filed in the Federal Court on August 12, 2016. [ 16 ] Her Statement of Claim names the federal government, a handful of Border Services officers, and two R.C.M.P. officers, as defendants. Her claim alleges that senior members of the Meadow Lake R.C.M.P. detachment mishandled her dog bite complaint and that one of the officers dealt with her improperly. She also alleges that she was mistreated by certain Border Services officers and that she was unlawfully expelled from Canada.

Her Statement of Claim goes on to allege various and sundry fraudulent conduct by most of these individuals. She claims that these misdeeds and mistreatment have caused her significant psychological and financial harm. [ 17 ] I am not familiar with the Federal Court’s procedures, nor do I know how one goes about appealing an expulsion order.

I am, however, reasonably confident that the plaintiff’s Statement of Claim does not constitute an appeal of the order forbidding her entry into this country. [ 18 ] In her submission for a further adjournment, the plaintiff suggested that she would be allowed into Canada if I scheduled another trial date and the court provided a letter to CBSA confirming both the trial date and that she is required to attend court on that date. [ 19 ] I do not agree with her assessment of the situation she faces. [ 20 ] The plaintiff provided to the court a copy of a CBSA form dated April 1, 2017, which confirms that one of the things CBSA requires from her, before a Border Services Officer will consider allowing her into Canada, is “Documents from the Provincial Court of Saskatchewan requiring your presence for the matters of File # SCA 15-1017 SC2015-04” [I understand that SCA 15-1017 refers to a separate Small Claims action the plaintiff instituted in Prince Albert]. [ 21 ] In my opinion, even if I grant the plaintiff’s request and

schedule another trial date, this court cannot provide the document requested by CBSA. [ 22 ] According to The Concise Oxford Dictionary , 8 th Edition, 1991, Oxford University Press,

the word “require” means a handful of different things, depending on the context: • need; depend on for success or fulfilment • lay down as an imperative • command; instruct • demand [ 23 ] My 1997 edition of the Gage Canadian Dictionary , 1997 Gage Educational Publishing Company, defines “require” as follows: • have need for; need; want • a demand; something demanded [ 24 ] Undoubtedly, the plaintiff needs to attend her trial in order for her action to succeed. In other words, in order for her action to have any chance of succeeding, she is required to attend court to prosecute her action.

However, this court does not “demand” or “command” her presence, which is the meaning of the word “require” to which I believe the CBSA form refers. [ 25 ] A defendant in a criminal matter is compelled, by court order, to attend their trial.

A plaintiff in a civil action is not. [ 26 ] Simply put, a plaintiff in a civil action should attend the trial of their action but they are not required to do so. [ 27 ] If I have misinterpreted the meaning CBSA’s request for documentation from the Provincial Court, there is no guarantee that the plaintiff will be allowed to enter Canada even if the court provides a document disclosing a specific trial date and confirming that she is required to attend court on that day.

The CBSA form discloses two reasons why this is the case. [ 28 ] First, the form lists a number of other documents the plaintiff must provide to CBSA. The list includes evidence of employment, evidence of foreign residence, a contact person in Canada who is a family member, friend or individual who she is travelling to visit in Canada, and contact information for herself while she is in Canada.

The plaintiff did not say whether she has provided, is able to provide, or will be able to provide, this additional documentation and information to CBSA. [ 29 ] Second, and most importantly, before describing the documents and information that the plaintiff must provide to CBSA, the CBSA form states the following, in “all-caps”:

NOTE: A FINAL DECISION AS TO YOUR ADMISSIBILITY REMAINS WITH THE EXAMING BORDER SERVICES OFFICER AT THE TIME OF YOUR APPLICATION FOR ENTRY [ 30 ] This means that she may not be allowed to enter this country, no matter whether she has all of the documents and information CBSA requires. [ 31 ] I cannot

schedule another trial date in the face of such uncertainty about the plaintiff’s ability to attend. [ 32 ] A final consideration is that, unlike the plaintiff, the defendant has been at every case management conference and every previous trial date, in person. In addition, during the latest case management/trial scheduling conference he told me that he believes that he has lost three employment opportunities at least in part because this case is disclosed when a prospective employer asks for a credit check. Conclusion [ 33 ] The plaintiff commenced her action under The Small Claims Act, 1997 , c.

S-50.11, S.S. 1997. The purpose of The Small Claims Act, 1997 is for legal actions within the Provincial Court’s monetary jurisdiction to be resolved reasonably quickly and inexpensively. This purpose is not stated anywhere in the Act , but it is implied throughout the Act ; see, for example: s. 47 which states that Small Claims Court proceedings are valid despite any procedural informalities, and s. 7.1(7)(

i) which describes the purpose of orders made at a Small Claims case management conference as being “for the just, timely and inexpensive resolution of the action”. Unfortunately, none of these laudable goals have been met in this case. [ 34 ] It now is almost two years since the plaintiff commenced her action and there is no end in sight. [ 35 ] While it is apparent that the plaintiff is not encumbered by the demands of steady employment, the defendant has had to take time away from work to come to court.

In addition, the defendant’s job opportunities continue to be jeopardized while this action hangs over him. [ 36 ] Although one of the purposes of The Small Claims Act, 1997 , is for actions within this court’s monetary jurisdiction to be decided justly on the merits of the case, in the circumstances of the case before me, justice demands that I bring this action to a merciful end. [ 37 ] For these reasons, I deny the plaintiff’s application for a further adjournment and dismiss her action for want of prosecution. [ 38 ] I will not make an order as to costs as it is futile to do so against a person who does not reside in Canada and who undoubtedly does not have any assets here.

_____________________________ M. Martinez, J.