Alain J. Hogue Law Corporation Date:, 2012 MBCA 81

Citation: Alain J. Hogue Law Corporation Date: 20120823 v. Prescott, 2012 MBCA 81 Docket: AI 12-30-07784 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) A. Prescott and ALAIN J. HOGUE LAW CORPORATION ) F. Melanson ) on behalf of the Applicant (Claimant)(Respondent) Respondent ) ) A. J. Hogue - and - ) for the Respondent ) ) Chambers motion heard: ANITA PRESCOTT ) August 16, 2012 ) (Defendant)(Appellant) Applicant ) Decision pronounced: ) August 23, 2012 MICHEL A. MONNIN J.A. 1 Anita Prescott, the applicant, seeks leave to appeal from the decision made by a judge sitting as a small claim appeal judge under The Court of Queen’s Bench Small Claims Practices Act , C.C.S.M., c. C285 (the Act ). 2

Section 15 of the Act permits an appeal, with leave of a judge of this court, on a question of law alone. In order to be successful on an application for leave, the applicant must show that: (

a) the question raised upon appeal is a question of law alone; (

b) the issue is one of sufficient importance to engage the attention of the court; and (

c) it has an arguable case that is one which has a reasonable prospect of success. See The Estate of Freda Champagne v. Carpets for Less Inc, 2011 MBCA 106 ; Roschuk v. Relf et al. , 2011 MBCA 37 , 268 Man.R. (2d) 18; and Penta Protective Coatings Ltd. v. Scott , 2006 MBCA 50 . 3 The respondent, Alain J.

Hogue Law Corporation (the professional corporation), claimed from the applicant the sum of $1,682.71 for legal fees, together with a claim for interest and costs, for services provided in the course of representing the applicant in a civil action she commenced against another party. 4 The applicant’s defence to the claim of the professional corporation is that she owes it nothing by way of fees for services rendered in light of the fact that she retained the professional corporation on a contingency basis. 5 The applicant also counterclaimed against the professional corporation for $10,000 in general damages, interest and costs, alleging that Mr.

Hogue failed to follow instructions, and failed to complete the work the professional corporation was retained to perform. 6 The small claim appeal judge dismissed the applicant’s counterclaim and, after finding that the professional corporation was not retained on the basis of a contingency agreement, awarded judgment to the professional corporation. 7 The applicant now argues that the small claim appeal judge failed to consider all of the evidence and that he did not allow her to present all of the evidence that she wished and thereby erred in law.

More specifically, the applicant argues that the small claim appeal judge denied her a fair hearing and therefore breached principles of natural justice. 8 The small claim appeal judge was a very experienced jurist who provided the parties with reasons for his decision covering 47 paragraphs over 12 pages. He, in my view, reviewed extensively and meticulously the evidence of the parties. He made definitive findings of fact wherein he accepted the evidence of the professional corporation over that of the applicant.

Finally, he applied the correct law to his findings of fact in arriving at the conclusions that he did. 9 The applicant has not convinced me that the small claim appeal judge made an error in law or that he failed to consider all relevant evidence. The best that can be said for her argument is that there might be an error of mixed fact and law, but this, in my view, is based more on the fact that the small claim appeal judge did not accept her evidence as opposed to any real error.

In any event, in making those findings of fact, the small claim judge was only performing the duty that was his to discharge. 10 The issue raised by the applicant involves something other than an issue of law only. It involves either an issue of fact, or possibly mixed fact and law, or the exercise of discretion by the judge. In any event, I am not satisfied it relates to legal questions

only, as is required to meet the initial leg of the test to be granted leave. 11 Even if it did involve a question of law alone, the applicant has not identified an arguable case of substance warranting the attention of the court. 12 The application for leave is accordingly dismissed. I do not consider this to be an appropriate case for an award of costs. J.A.