Haines et al. v. Rochelle, 2014 MBCA 41

Citation: Haines et al. v. Rochelle, 2014 MBCA 41 Date: 20140506 Docket: AI 14-30-08126 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) B. Rochelle STEVEN HAINES and ) on his own behalf TRACY HAINES ) ) No appearance (Claimants) (Respondents) Respondents ) for the Respondents ) - and - ) ) Chambers motion heard: BARRY ROCHELLE ) April 17, 2014 ) (Defendant) (Appellant) Applicant ) Decision pronounced: ) May 6, 2014 MARC M. MONNIN J.A. [ 1 ] Mr. Rochelle seeks leave to appeal from a decision of a small claim appeal judge who held in favour of Mr. and Mrs. Haines and ordered that Mr.

Rochelle pay the amount of $1,440.79, plus costs and disbursements. [ 2 ] Mr. and Mrs. Haines purchased a home from Randall Homes Ltd. Mr. Rochelle acted as the agent for Randall Homes Ltd. A sales agreement was prepared. In an attachment to that document, it stipulated that standard appliance dimensions for the kitchen cabinets would apply as listed. However, with respect to the fridge, it indicated “AS PER PLAN – (Confirm Dimensions with Sales Agent).” [ 3 ] The Haines’ evidence at trial was that they had in fact sent the dimensions for their fridge to Mr.

Rochelle by email, which he was to pass on to the builder. Mr. Rochelle denied ever receiving that email. At trial before the small claim appeal judge, it was found as a fact that an email was received by Mr. Rochelle and that he had replied to it confirming reception. [ 4 ] When the dimensions for the cabinet turned out to be incorrect, the Haines had to make arrangements to modify them to accommodate their fridge and incurred the expenses for which they claim. [ 5 ] The Haines did not sue on the contract, but rather, sued in small claims court against Mr. Rochelle only.

They alleged that he undertook to perform a task; namely, to provide the information to the builder in a timely fashion, which he did not do. [ 6 ] Mr. Rochelle’s position was that he was merely the agent for the builder and that he was covered by the provisions of the sales agreement which mandated that any dispute be sent to arbitration. The clause provides as follows: 15. ARBITRATION Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise and whether pre-existing, present or future) arising out of or relating to:

i) this Agreement; ii) the Builder; iii) oral or written statements, representations or warranties, advertisements or promotions relating to this Agreement or to theBuilder; or iv) relationships which result from the Agreement; (collectively the “Claim”), will be referred to and determined by arbitration pursuant to The Arbitration Act of Manitoba … …. [7] While the sales agreement does not stipulate who Mr.

Rochelle was acting for or whether he was acting for both partieswith the consent of each, the small claim appeal judge proceeded on the basis that he was the vendor’s agent and I will assume that forthe purposes of this leave application. [8] The small claim appeal judge was of the view that Mr. Rochelle’s conduct was negligent and that he had breached hisduty of care to the Haines and, as a result, they suffered damages. [9] On the issue of whether the arbitration clause applied, the small claim appeal judge held that Mr.

Rochelle was not aparty to the agreement and, therefore, could not rely upon that clause to invoke the requirement for arbitration. As well, he found that itwould have been incumbent upon Mr. Rochelle to take steps to have the proceedings stayed pending a referral to arbitration, somethingwhich he did not do. [10] As explained to Mr. Rochelle, an appeal from a decision of a small claim appeal judge lies under s. 15 of The Court ofQueen’s Bench Small Claims Practices Act, C.C.S.M., c.

C285 (the Act), only on a question of law, which question must be one ofimportance meriting the attention of the court and having arguable merit. [11] According to current jurisprudence, a vendor’s agent may owe a duty of care to a purchaser (see Kotowich v. Peturssonet al. (1994), (MB KB), 91 Man.R. (2d) 160 (Q.B.)). The finding by the small claim appeal judge that Mr.

Rochellefailed in his duty to forward the information on a timely basis to the builder is not, in my view, an error of law, as there was evidenceupon which he could have concluded that there was a sufficient relationship between the parties to create that duty and that, in thecircumstances, Mr. Rochelle did not perform the task he had undertaken to do. [12] As to the issue of whether the matter should be referred to arbitration and not proceed as a small claim, two questionsarise. On the one hand, the issue of whether Mr.

Rochelle’s relationship with the Haines is one which was covered by subcl. (iv) of cl.15, i.e., a relationship resulting from the agreement is one which requires an assessment of the facts and is not a pure question of law, butrather one of mixed fact and law. Secondly, whether there was an obligation on Mr. Rochelle to take steps to have the applicability ofthe arbitration clause determined and the proceedings before the Court of Queen’s Bench stayed, is a procedural issue, again not onestrictly of law.

As such, they do not raise issues which satisfy the requirement of s. 15 of the Act. [13] Even had I found an error of law alone raised in the submissions made by Mr. Rochelle, I do not believe that they areissues which should be considered by the Court of Appeal. They raise no novel or new issues of law, nor would maintaining the smallclaim appeal judge’s decision amount to an injustice. [14] For these reasons, I would dismiss the application for leave to appeal.

As the Haines did not appear or haverepresentation on the leave application, I order no costs with respect to these proceedings, although the costs awarded by the small claimappeal judge remain in place. J.A.