Chahal v SPS Trucking Inc et al, 2016 MBCA 29

Citation: Chahal v SPS Trucking Inc et al, 2016 MBCA 29 Date: 20160310 Docket: AI15-30-08521 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : IQBAL SINGH CHAHAL ) V. R. Jhanji ) for the Applicants (Claimant) Respondent ) ) R. S.

Walia - and - ) for the Respondent ) SPS TRUCKING INC. and ) Chambers motion heard: SATINDERPAL SINGH SIDHU ) February 18, 2016 ) (Defendants) Applicants ) Decision pronounced: ) March 10, 2016 CAMERON JA [ 1 ] The defendants apply for leave to appeal a decision of a judge of the Court of Queen’s Bench (the second motion judge) ordering that their small claims appeal from a default judgment proceed as provided for in The Court of Queen’s Bench Small Claims Practices Act , CCSM c C285, as it appeared prior to January 1, 2015 (the former Act ). [ 2 ] The claimant did not attend the hearing of the application for leave to appeal.

At the time I pronounced my oral decision denying leave to appeal, I indicated that I would provide brief written reasons. These are those reasons. [ 3 ] The claimant initiated a small claim against the defendants on November 10, 2014. The defendants did not attend the hearing of that claim that was scheduled for April 24, 2015, and default judgment was entered against them.

The defendants did not meet the deadline for appealing the default judgment. [ 4 ] On January 1, 2015 ( after the claim had been filed but before default judgment was entered), The Court of Queen ’ s Bench Small Claims Practices Amendment Act , SM 2014, c 30, was proclaimed in force (the amending Act ). The amending Act substantially changed the appeal procedure for small claims.

Of import to this case, the amending Act provides that, where a defendant does not appear at a hearing, the court officer must hear the claim and decide it (as opposed to merely entering default judgment as provided for in the former Act ). Pursuant to

section 11, a defendant must apply to set aside the decision and a date must be set to hear the application to set aside. Pursuant to section 11(5), the hearing to set aside is heard by a judge if a judge made the decision and by a court officer if the court officer made the decision. Only if a defendant is successful in the application to set aside will a new hearing date be set. [ 5 ] There are other significant differences in appeal procedures provided for in the former Act and the amending Act .

However, those are beyond the scope of this decision. [ 6 ] The defendants brought a motion on the civil uncontested motions list asserting that the appeal of the default judgment should proceed in accordance with the provisions of the amending Act rather than those provided for in the former Act . Application of the provisions in the former Act would require the defendants to apply for an extension of time to file for leave to appeal, apply for leave to appeal and appeal.

See sections 12(2) and 12(3) of the former Act . [ 7 ] On June 18, 2015, the first motion judge heard the motion by the defendants to have the judgment set aside pursuant to the amending Act . She noted that they had not served the claimant. She dismissed the motion on the basis that it was brought under the wrong

section and in the wrong court. I have now reviewed a transcript of the June 18, 2015 proceedings and, contrary to the assertion of the defendants that the first motion judge agreed that the amending Act applied, she did not deal with the substance of their argument and no decision was made regarding it. [ 8 ] The defendants brought a second notice of motion to have their small claim appeal heard pursuant to the amending Act . The second motion judge again dismissed the motion. Despite having dismissed the motion, the second motion judge granted the defendants leave to file for leave to appeal and appeal pursuant to sections 12(3) and 12(4) of the former Act . That matter is currently

scheduled for hearing on April 1, 2016, in the Court of Queen’s Bench. [ 9 ] Nonetheless, the defendants applied for leave to appeal the decision of the second motion judge to dismiss their motion that the appeal be heard in the manner provided for in the amending Act . Succinctly stated, their argument was that the changes in the provisions for appeal between the former Act and the amending Act are merely procedural in nature and do not affect any substantive rights. Therefore, they argued that, pursuant to section 47(3) of The

Interpretation Act , CCSM c I80 (the IA ), the proceeding must be continued under the amending Act . [ 10 ] Application for leave to appeal to this Court is governed by

section 15 of the former Act , which states that an appeal may be taken on a question of law only. Additionally, the Court must consider whether there is an arguable chance of success. Finally, the issue that is attempted to be raised on appeal must warrant the attention of this Court.

See Schultz v Kopp Farms et al , 2010 MBCA 30 at para 2 . [ 11 ] In my view, regardless of whether the defendants have raised a question of law alone, the application for leave cannot succeed because it does not have a reasonable prospect of success. [ 12 ] First, I would indicate that I do not agree with the defendants’ argument that the amendments to the appeal procedure for small claims do not substantively affect the rights of the parties. See Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed (Markham: LexisNexis, 2014) at para 25.114. Therefore,

section 47 of the IA does not apply. [ 13 ] However, and more importantly, the amending Act decides the issue. Specifically,

section 18 of the amending Act states: Coming into force and application 18 This Act comes into force on a day to be fixed by proclamation and applies to claims filed in the court under this Act on or after that date . [emphasis added] [ 14 ] This clear statement of applicability does not include claims filed prior to the coming into force of the legislation. The provision makes sense in light of the significant differences in the appeal procedure between the former Act and the amending Act . As I earlier stated, the amending Act came into force on January 1, 2015, and the claim was filed on November 10, 2014.

Therefore, the amending Act does not apply and the former Act does. [ 15 ] Finally, the argument raised by the defendants would only apply to a limited number of persons falling within a small timeframe, all who still have redress pursuant to the former Act . Therefore, the matter does not merit the full attention of the Court. [ 16 ] Thus, for these reasons, leave to appeal was denied. JA