The Rendezvous Sports Bar and Lounge v. On Shore Construction Ltd., 2020 NSSC 319

SUPREME COURT OF Nova Scotia Citation: The Rendezvous Sports Bar and Lounge v. On Shore Construction Ltd. , 2020 NSSC 319 Date: 20201104 Docket: Shelburne , No. 496119 Registry: Yarmouth Between: The Rendezvous Sports Bar & Lounge and Michelle Jacklyn Appellants v. On Shore Construction Ltd Respondent Judge: The Honourable Justice John A. Keith Heard: November 3, 2020, in Shelburne, Nova Scotia Counsel: Michelle Jacklyn, for the Appellants Stephanie Knight, for the Respondent Issue [ 1 ] This is an appeal of the decision of Small Claims Court Adjudicator Andrew Nickerson, Q.C. released January 9, 2020.

In that decision, Adjudicator Nickerson ordered the Appellants to pay to the Respondent $9,523. [ 2 ] For reasons discussed below, the appeal is dismissed. Background [ 3 ] The Appellants decided to relocate their bar and restaurant business. The Appellants hired the Respondent construction company to complete the necessary renovations at the new premises. The Respondent completed the work and claimed for outstanding amounts allegedly owing for labour, materials, building permit fees and storage. [ 4 ] The Appellants denied that any monies were owing.

They alleged the parties agreed to a cap of $40,000 (i.e. a guaranteed maximum price); and that the Respondent was not entitled to any money above that cap. The Appellants also counterclaimed, alleging numerous deficiencies and contractual breaches arose in respect of the work which was done. [ 5 ] The trial proceeded before Adjudicator Andrew Nickerson on January 7, 2020. By written decision released January 9, 2020, Adjudicator Nickerson made the following findings of fact and conclusions: 1. The Defendants (Appellants on this appeal) decided to relocate their bar and restaurant to new premises; 2.

The Defendants entered into a verbal contract in which the Claimant (Respondent on this appeal) would perform the necessary renovations at the new location; 3. The parties agreed that the Defendants would pay the Claimant on the basis of weekly invoices; 4. The Defendant was provided with invoices on a weekly basis and there was no evidence of any objection being made to these invoices at the time. Nor was there any difficulty expressed as to the services provided. The Defendants agreed at the hearing that the work of the lead carpenter and foreman, Colin Ringer, was competent and high quality; 5.

The invoices placed in evidence by the Defendants represented a reasonably accurate description of the work performed and costs incurred (including materials) by the Respondent; 6. The total value of the invoices issued by the Claimant for the work in question was $65,523. Against that amount, as indicated, the Defendant paid $56,000; 7. The difference between the total amount of invoices submitted ($65,523) and the amounts paid to date ($56,000) is $9,523 and was due and payable [ 6 ] No interest was awarded and the remainder of the Claimant’s demand ($10,699.14) was dismissed.

[7] By Notice of Appeal filed February 3, 2020, the Defendants/Appellants Rendezvous Bar and Lounge and Michelle Jacklynstate that Adjudicator Nickerson committed the following errors of law: 1. Calculation Error – The Appellants contend that Adjudicator Nickerson “confirmed in his decision the verbal agreement of $40,000but said such figures excluded material”. In other words, the labour costs were capped at $40,000.

Based on that finding, the Appellantsstate that Adjudicator Nickerson failed to do the necessary calculations to ensure that the amounts charged by the Claimant did notexceed the alleged $40,000 cap for labour. The Appellants state that the Adjudicator simply accepted the Claimant’s figures withoutscrutiny and that, in fact, the labour charged by the Claimant was $4,410 above this $40,000 figure and that the award should thereforebe reduced by that amount. 2.

Error in Procedure – The Appellants say that the Claimants failed to serve the Defendants with documents on or before December13, 2019 as ordered (the Appellants say) by the Adjudicator during an earlier appearance about 6 weeks before the actual trial. TheAppellants say they only received the required disclosure on January 7, 2020 when they arrived to argue the case. The Appellants saysthat the “Adjudicator did not want to adjourn the matter and that the Defendants would have 15 minutes to review the saiddocumentation”.

The Appellants take the position that it was neither practical nor possible to properly review the information in thatshort amount of time and, therefore, the Adjudicator should not have allowed the documentation in as evidence during the hearing. [8] In a subsequent

Summary Report filed in accordance with the Small Claims Court Act, R.S.N.S. 1989, c.430, the “Act”,Adjudicator Nickerson confirmed the basis for his original decision and responded more directly to the specific grounds of appeal raisedby the Appellants. In particular, Adjudicator Nickerson provided additional context for the alleged procedural error. He noted that: 1. The parties first appeared before him on November 20, 2019 at which time the Appellant Ms. Jacklyn expressed concern that shehad not received any documentary disclosure; 2.

Adjudicator Nickerson stated that disclosure “should” occur by December 13, 2019 (emphasis in his original decision) He(Adjudicator Nickerson) had no authority to order disclosure but said that the parties risked a potential adjournment delay if disclosuredid not occur. ; 3. The parties agreed and the Appellant Ms. Jacklyn did not object to the address contained on the Notice of Claim. (The Notice ofClaim contains two addresses for the Appellants: 129 Water St. in Shelburne and PO Box 458 in Shelburne); 4. The Respondent (represented by Ms.

Knight) indicated that she made a number of unsuccessful attempts to deliver the documents tothe Appellants; and also mailed the package of documents by registered mail. The package was eventually returned to the Respondentunclaimed and undelivered; 5. At the commencement of the hearing on January 7, 2020, Ms. Jacklyn complained that she had not received any disclosure. Sherequested an adjournment. Adjudicator Nickerson concluded that “the Claimant had made reasonable efforts to provide the disclosureand had acted in good faith.

The Defendant’s failure to receive the documents was, in my view, largely as a result of the Defendant’s lackof diligence in making any effort to ensure that she received them.” Adjudicator Nickerson weighed the respective prejudices and statedthat he was not inclined to grant an adjournment but offered the Appellants 15 or 20 minutes to review the disclosure package. He was“of the view that this was not ideal, but Ms. Jacklyn’s lack of diligence had been the major cause of her not having the disclosure in atimely way, and I found no fault with Ms. Knight’s efforts.” Adjudicator Nickerson confirmed that Ms.

Jacklyn declined the briefadjournment and the trial proceeded. [9] In their pre-hearing written submissions, the Appellants simply copied the content of their Notice of Appeal and attached aduplicate of their original Counterclaim. During oral submissions on appeal, Michelle Jacklyn elaborated that the Respondents’ witnessand representative (Stephany Knight) “blatantly misled” the Court particularly with respect to her evidence around attempting to deliverdocumentation to the Appellants. Ms. Jacklyn argued that Ms.

Knight was simply not a credible witness and that her evidence should nothave been accepted. [10] The Respondent argues that Adjudicator Nickerson correctly determined the contractual terms based on the evidence beforehim. The Respondent further says that Adjudicator Nickerson accurately totalled the issued invoices, confirmed the payments madeagainst those invoices, and calculated the balance outstanding – all in accordance with the evidence. As to procedural error, theRespondent largely reiterated and relied upon the Adjudicator’s findings.

Jurisdiction of the Court in Small Claims Court Appeals [11] The Appellants generally allege an error of law, broken down into two grounds: error of calculation and procedural errors. There is no doubt that an error of law is a legitimate ground of appeal (section 32 of the Act). [12] The leading case describing my jurisdiction on appeal of a Small Claims Court decision is Brett Motors Leasing Ltd. v.Welsford, (NS SC), [1999] N.S.J. No. 466.

Paragraph 14 of that decision is frequently quoted but worth repeating: “One should bear in mind that the jurisdiction of this Court is confined to questions of law which must rest upon findings of fact as foundby the adjudicator. I do not have the authority to go outside the facts as found by the adjudicator and determine from the evidence myown findings of fact. "Error of law" is not defined but precedent offers useful guidance as to where a superior court will intervene toredress reversible error.

Examples would include where a statute has been misinterpreted; or when a party has been denied the benefit ofstatutory provisions under legislation pertaining to the case; or where there has been a clear error on the part of the adjudicator in theinterpretation of documents or other evidence; or where the adjudicator has failed to appreciate a valid legal defence; or where there is noevidence to support the conclusions reached; or where the adjudicator has clearly misapplied the evidence in material respects therebyproducing an unjust result; or where the adjudicator has failed to apply the appropriate legal principles to the proven facts.

In suchinstances this Court has intervened either to overturn the decision or to impose some other remedy, such as remitting the case for furtherconsideration.”

[ 13 ] In Brett Motors , Saunders, J. (as he then was) dismissed the appeal by concluding that: “ it cannot be said that the learned adjudicator reached an unreasonable or untenable conclusion ” (at para 16). [ 14 ] I also emphasize two related points which bear upon appeals of Small Claims Court decisions: 1. A Small Claims Court Adjudicator commits an error of law where there is no evidence to support the decision ( Hoyeck v. Maloney, 2013 NSSC 266 ) The burden placed upon an appellant to prove such an error is obviously onerous [1] ; 2. An appeal of a Small Claims Court decision is not a hearing de novo .

It is neither an invitation nor an opportunity to re-argue the case. As MacDougall, J. noted in Killam Properties Inc. v. Patriquin, 2011 NSSC 338 , an appeal under the Small Claims Court Act is : “ a hearing based on the record. By record, I mean the contents of the Small Claims Court file which is requested and provided to our Court when a notice of appeal is filed. The entire record, including any exhibits filed in the hearing before the Small Claims Court, are all included in that file and they are all open to review by this Court. In addition to that, the adjudicator is requested to provide a

summary report of findings of law and fact made on the case on appeal. So, in addition to the decision or order of the adjudicator, the

summary report is also provided to this court and is used in determining the merits of the appeal.” [ 15 ] I turn now to the specific grounds of appeal. Decision Calculation Error [ 16 ] The Appellants’ initial argument was premised on the notion that the Adjudicator determined that the renovation contract between the parties included a term that limited labour costs to $40,000. Respectfully, the premise was flawed in that Adjudicator Nickerson clearly concluded that the agreement was based on the invoices as delivered showing labour charges and material costs. Labour costs were not capped.

Adjudicator Nickerson’s decision clearly concludes that “there was a verbal contract that the Claimant would perform work on the Defendant’s new premises and the Defendant would pay on the basis of weekly invoices.” (at para 14) That statement is not qualified by a guaranteed maximum of $40,000 for labour costs.

Indeed, Adjudicator Nickerson concludes that “the only thing the Defendant was told was that if the company’s staff was there for a month it would cost $40,000.” (at para 14). [ 17 ] In the alternative, the Appellants argued that Adjudicator Nickerson accepted the Respondent’s evidence as credible when (the Appellants say) it clearly as not. The Appellants conceded that this alternative argument was based entirely on the oral evidence before Adjudicator Nickerson.

The Appellants insisted that Adjudicator Nickerson failed to detect or properly condemn the Respondent’s statements which (the Appellants say) were “blatantly misleading”. The Appellants focus particularly on the Respondent’s evidence around sending documents to the Appellants’ post office box. They suggest that the evidence was obviously dishonest and should have entirely, fatally undermined the Respondent’s credibility. [ 18 ] Respectfully, Adjudicator Nickerson’s decision provides a rational explanation for his determinations as to the terms of the renovation contract.

It is logically rooted in the evidence he heard and summarized in his decision and

summary report. Adjudicator Nickerson had the opportunity to watch the parties testify and listen to their evidence. I did not. Adjudicator Nickerson explained his decision and anchored his reasons in the evidence. In the circumstances, I have no basis in law or fact to reject the Adjudicator’s assessment of credibility and simply adopt the Respondent’s preferred version of events. The Appellants may not be prepared to accept Adjudicator Nickerson’s findings but, respectfully, that does not constitute an error of law. This ground of appeal is dismissed.

Error in Procedure [ 19 ] The Appellants argue that Adjudicator Nickerson erred in law by refusing to grant a further adjournment on January 7, 2020 and then admitting documentary evidence which was not disclosed prior to trial. [ 20 ] A Small Claims Court is a statutory Court. This means that its jurisdiction and powers are confirmed in (and circumscribed by) the governing legislation. It has no inherent jurisdiction beyond its statutory authority. [ 21 ] There is no provision in the Act or regulations requiring pre-trial disclosure or discovery examinations.

Nor is there any express authority for an adjudicator to re-write the statute and mandate a process of disclosure or discovery. [ 22 ] In Paul Revere Life Insurance v Herbin , 1996 CarswellNS 101 , Saunders, J (as he then was) noted at para 20: “the very rationale for the establishment of the Small Claims Court was that small claims would be quickly and inexpensively adjudicated.

Naturally, such claims are heard without access to the usual pre-trial procedures, productions, discovery of parties and discovery of experts, as would be accommodated under our own Civil Procedure Rules .” (see also MacEwan v Henderson , 2003 NSSC 103 and Wexford Communications v Buildrite Centers , 1996 CarswellNS 465 )”. [ 23 ] Adjudicator Nickerson recognized these limitations at the original hearing on November 20, 2019. That hearing was adjourned with the caution that the parties “ should ” (not must) exchange documents in advance of the hearing to avoid the risk of an adjournment.

Adjudicator Nickerson was clearly aware that he could not mandate a disclosure and discovery process that is not contemplated under the Act . [ 24 ] When the Appellants still had not received the information at the hearing date on January 7, 2020, Adjudicator Nickerson considered the possibility of yet another adjournment. He considered the numerous attempts by the Respondent to deliver the materials in advance of the hearing, and he weighed the respective prejudices associated with further delay. He determined that, in all the circumstances, the hearing should proceed.

Based on the record before me, the decision not to adjourn was based on proper

considerations and was neither unreasonable nor untenable. [ 25 ] The Appellants say that, in the alternative, Adjudicator Nickerson should have excluded all of the Respondent’s invoices and related evidence. They say allowing this evidence into the record was unjust. [ 26 ] Excluding the evidence in question would have effectively gutted the Respondent’s case but, more importantly, would have been entirely inconsistent with the Act ’s goals and accepted procedures, including the fact that pre-hearing disclosure is not a requirement in Small Claims Court.

Contrary to the Appellants’ submissions, respectfully, the fact that the Adjudicator accepted and reviewed the evidence is not unjust. The injustice would have been to exclude it. [ 27 ] I dismiss this ground of appeal. John. A. Keith, J.