Rowley v. Royal Bank of Canada, 2013 NSCA 27

NOVA SCOTIA COURT OF APPEAL Citation: Rowley v. Royal Bank of Canada , 2013 NSCA 27 Date: 20130227 Docket: CA 398323 Registry: Halifax Between: Brent R. Rowley and Suzanne Rowley Appellants v. Royal Bank of Canada, one of Canada ’ s chartered banks Respondent Judge: The Honourable Justice M. Jill Hamilton Appeal Heard: January 28, 2013, in Halifax, Nova Scotia Subject: Civil Procedure ; Re-adding a Defendant

Summary: The Bank agreed, at the defendants request, to move part of its action from Supreme Court to Small Claims Court. In connection therewith, it discontinued its action against Ms. Rowley in Supreme Court. The defendants failed to sign the documents necessary to effect this transfer. At the hearing before the Small Claims Court, the defendants claimed the Court had no jurisdiction to decide the matter because it was ongoing in Supreme Court. The Bank applied in Supreme Court to re-add Ms. Rowley to the Supreme Court action so trial in Supreme Court could proceed. The judge granted the Bank ’ s application.

Issue: Did the chambers judge err? Result: Appeal dismissed. The judge did not err. His order is a discretionary one. He applied correct principles of law and there was no manifest injustice.

This information sheet does not form part of the court ’ s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 5 pages. NOVA SCOTIA COURT OF APPEAL Citation: Rowley v. Royal Bank of Canada , 2013 NSCA 27

Date: 20130227 Docket: CA 398323 Registry: Halifax Between: Brent R. Rowley and Suzanne Rowley Appellants v. Royal Bank of Canada, one of Canada ’ s chartered banks Respondent Judges: Hamilton, Fichaud and Beveridge, JJ.A.

Appeal Heard: January 28, 2013, in Halifax, Nova Scotia Held: Appeal dismissed with costs payable to the respondent, per reasons for judgment of the Court Counsel: Brent Rowley, appellant, in person Suzanne Rowley, appellant, in person (not appearing) Michelle Kelly, for the respondent By the Court : [ 1 ] At the conclusion of the hearing, we dismissed this appeal from the May 24, 2012 order of Nova Scotia Supreme Court Justice John D. Murphy, with reasons to follow. His order re-added the appellant, Suzanne Rowley, as a defendant in action for debt number Hfx.

No. 351970 and continued the action against her and the other appellant, her husband, Brent R. Rowley, as originally filed. These are our reasons. [ 2 ] The respondent, the Royal Bank of Canada, originally commenced an action in the Nova Scotia Supreme Court against both appellants on July 8, 2011, for credit card debts on two accounts. One account, with a claimed debt of approximately $46,000, was in Mr. Rowley ’ s name alone. The other account, with a claimed debt of approximately $17,000 (the “ $17,000 debt ” ), had two cards, one in each appellant ’ s name.

[ 3 ] On being sued, the appellants unsuccessfully attempted to elect, pursuant to s. 19(2) of the Small Claims Court Act , R.S.N.S. 1989, c. 430, to have the action adjudicated in Small Claims Court instead of in Supreme Court. Their attempt failed because the total amount claimed by the Bank on both accounts exceeded the $25,000 jurisdictional limit of the Small Claims Court. At the appellants ’ request, the Bank acquiesced in having its claim for the $17,000 debt heard in Small Claims Court.

To accomplish this, the Bank (1) commenced a claim for the $17,000 debt against both appellants in Small Claims Court; (2) filed a notice of discontinuance in Supreme Court with respect to its claim against Ms. Rowley; (3) prepared a consent dismissal order of the Supreme Court claim for the $17,000 debt to discontinue its claim for this debt against Mr. Rowley and (4) prepared an amended notice of claim in Supreme Court to remove Ms. Rowley ’ s name from the Supreme Court style of cause which she insisted be done. The consent dismissal order required the signatures of both appellants.

The amended notice of claim required Mr. Rowley ’ s signature. Both appellants refused to sign. Not having received the required signatures, and in light of the upcoming hearing before the Small Claims Court adjudicator on December 13, 2011, the Bank also discontinued its claim against Mr. Rowley in that court. [ 4 ] Mr. Rowley appeared on behalf of his wife at the December 13th hearing of the Bank ’ s claim against her in Small Claims Court.

At the conclusion of the hearing, relying on s.15 of the Act , he argued that the Small Claims Court lacked jurisdiction to adjudicate this claim because the same issues were still in dispute in the Supreme Court. He asked the adjudicator to dismiss the Bank ’ s claim on that basis. [ 5 ] After an adjournment, the Bank consented to the adjudicator dismissing its claim for the $17,000 debt against Ms. Rowley on the basis argued by Mr. Rowley and indicated it would instead proceed in Supreme Court on the merits of both claims against both appellants as originally planned.

On February 10, 2012 the adjudicator dismissed the Bank ’ s claim on that basis. [ 6 ] The Bank then brought the motion in Supreme Court that resulted in the appealed order to allow it to proceed in Supreme Court as originally planned. [ 7 ] The judge ’ s oral decision indicates he clearly understood the facts. He noted that the time of two courts had been taken up over procedural issues without getting to the merits. He found the Bank had not erred in originally filing its claim in Supreme Court for both debts against both appellants.

He recognized the efforts the Bank made to try to accommodate the appellants ’ stated wish to have the $17,000 debt claim transferred to Small Claims Court and noted that the appellants had refused to sign the documents that would have accomplished this. He found the appellants were playing one court off against the other causing delay in the determination of the merits of the case.

He found the appellants ’ request that the Bank be ordered to discontinue everything and start over again so that the $17,000 debt claim could be adjudicated in Small Claims Court and the larger debt claim dealt with in Supreme Court was unreasonable, accepting the Bank ’ s position that this would result in additional filing fees and service fees to it, concluding: As I said, all matters are within the jurisdiction of this Court. The Plaintiff made no error in proceeding as it did.

Its willingness to adjust the forum to suit the Defendants, while very fair, was ultimately used against the Plaintiff in Small Claims Court. In all the circumstances, the procedural issues and the issues about forum should be set aside and the merits of this case should be adjudicated. All matters are properly within the jurisdiction of this Court and can be dealt with here, and indeed, the Small Claims Court has declined jurisdiction in response to the Defendants’ submission that it doesn’t have jurisdiction.

So I’m prepared to grant the order in the form requested by the Plaintiff vacating the notice of discontinuance indicating that Suzanne Rowley be re-added as a Defendant and that the notice of action for debt originally issued on July 8 th against both Defendants continue as originally filed. [ 8 ] In addition to re-adding Ms.

Rowley as a defendant in the Supreme Court action and continuing the action as originally filed, the judge ordered the appellants to jointly and severally pay costs of $500, together with disbursements of $220, to the Bank if it ultimately succeeds in the cause. [ 9 ] The judge ’ s order is an interlocutory discretionary one. On an appeal of such an order, this court will not interfere unless wrong principles of law were applied or a manifest injustice has resulted: Doncaster v. Field , 2013 NSCA 17 at para

10 . [ 10 ] There is nothing in the judge ’ s reasons suggesting that he applied a wrong principle of law. Nor has a manifest injustice resulted. The result of the judge ’ s order is that the merits of the Bank ’ s claims will now be decided in Supreme Court, hopefully without further delay. There is nothing unfair about this. Had the appellants signed the documents the Bank prepared to complete the transfer of the $17,000 debt claim to Small Claims Court, rather than refusing to do so, that matter would have been adjudicated in Small Claims over a year ago.

Having failed to do so, there is nothing unfair about the merits of that claim now being decided in Supreme Court along with the Bank ’ s claim for the larger debt. The prejudice the appellants claim they will suffer as a result of the order; namely, that the Bank knows from the hearing in Small Claims Court the details of their defence, is without merit. The Supreme Court action is governed by the Civil Procedure Rules which provide for the production of documents and for discoveries.

These procedures provide a means for each party to learn the basis of the other party ’ s position, to avoid trial by ambush. [ 11 ] For the foregoing reasons we dismissed the appeal. We indicated we would give our decision with respect to appeal costs with our reasons. We hereby order the appellants to jointly and severally forthwith pay to the Bank appeal costs in the amount of $1,500 including disbursements. Hamilton, J.A. Fichaud, J.A. Beveridge, J.A.