Boone v. DC Drive Electronics Ltd., 2011 NSSC 380

SUPREME COURT OF NOVA SCOTIA Citation: Boone v. DC Drive Electronics Ltd., 2011 NSSC 380 Date: October 19, 2011 Docket: SCAm No. 337239 Amh No. 345563 Registry: Amherst Between: Richard Boone Appellant v. DC Drive Electronics Ltd. Respondent LIBRARY HEADING Judge: The Honourable Justice Cindy A. Bourgeois Heard: September 8, 2011, in Amherst, Nova Scotia Subject: Small Claims Court appeal.

Summary: The Appellant brought his Harley Davidson fairing to the Respondent business for the installation of stereo equipment. The Appellant was dissatisfied with the services provided, and sought the return of funds expended. The Respondent business, while maintaining it performed the work correctly, was prepared to provide a partial refund to the Appellant as part of good customer service. The Adjudicator found the work was performed in a satisfactory manner, but given the Respondent ’ s willingness to voluntarily give a partial refund, awarded the Appellant the sum as suggested by the Respondent.

Issue: Did the Adjudicator make an error which would justify this Court intervening? Was the Adjudicator biased? Held: The Appellant was primarily dissatisfied with the findings of fact, weighing of evidence and credibility assessment undertaken by the Adjudicator. There was nothing presented which would displace the “ high deference ” given to the findings made by the Adjudicator.

There was no “ palpable or overriding ” error on his part. Further, there was no evidence before the Court to suggest an actual or apprehension of bias on the Adjudicator ’ s part. Result: Appeal dismissed. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Boone v. DC Drive Electronics Ltd., 2011 NSSC 380 s Date: October 19, 2011 Docket: SCAm No. 337239 Amh No. 345563 Registry: Amherst Between: Richard Boone

Appellant v. DC Drive Electronics Ltd. Respondent Judge: The Honourable Justice Cindy A. Bourgeois Heard: September 8, 2011, in Amherst, Nova Scotia Counsel: Richard Boone, in person Craig Greene, for the Respondent By the Court : BACKGROUND: 1 . The Appellant, Richard Boone, by Notice of Claim dated October 7, 2010, brought an action in the Small Claims Court of Nova Scotia against the Respondent, DC Drive Electronics Ltd. Mr. Boone was dissatisfied with the services received from DC Drive Electronics in relation to the installation of a stereo and speakers on to his Harley Davidson motorcycle fairing. 2 .

A defence was filed on behalf of DC Drive Electronics and a hearing was held on December 16, 2010. Both parties were self-represented, with Mr. Craig Greene speaking on behalf of the corporate defendant. The Adjudicator issued an Order on February 17, 2011 whereby DC Drive Electronics was ordered to remove the stereo equipment from the fairing and pay to Mr. Boone the sum of $474.64. 3 . On March 16, 2011, Mr. Boone filed a Notice of Appeal alleging that the Adjudicator failed to follow the requirements of natural justice, the particulars of which were stated as follows: a.

"That Adjudicator Moores misapplied the evidence, and rendered a decision not supported by the evidence. He found in the Appellants favor, but failed to award the Appellant sufficient damages to compensate for his loss". 4 . This Court received written submissions from both the Appellant and Respondent, and heard the oral submissions of both Mr. Boone and Mr. Greene on September 8, 2011. The Court also had available to it the

Summary Report prepared by the Adjudicator. POSITION OF THE APPELLANT: 5 . Mr. Boone submits that the Adjudicator failed to follow the requirements of natural justice. His position, more expansively stated in his written submissions, can be summarized as follows:

a) there was evidence before the Court in support of his position that the installation was not performed appropriately by DC Drive Electronics, which was ignored by the Adjudicator;

b) the Adjudicator erred by finding Mr. Greene more credible in his testimony;

c) the Adjudicator's decision was flawed, as a finding was made in his favour, yet the outcome did not reflect the appropriate outcome of such determination;

d) the Adjudicator failed to make a determination within 60 days of the hearing, as is required by Small Claims Court legislation. The decision was rendered on the 61st day, and it is submitted that the Adjudicator therefore "rushed" his determination, and did not take the necessary time to appropriately consider the case;

e) the Adjudicator failed to file his

Summary Report within the time frame required; and

f) the Adjudicator was biased. POSITION OF THE RESPONDENT: 6 . Mr. Greene argued that the decision of the Adjudicator was reasonable based upon the evidence presented and that the appeal should be accordingly dismissed. THE LAW: 7 . It may be helpful to commence with a review of several relevant statutory provisions contained within the Small Claims Court Act R.S.N.S. 1989 c. 430. Firstly, the statutory basis upon which an appeal may be advanced from an adjudicator's decision is found in

section 32. It provides: a. 32(1) A party to proceedings before the Court may appeal to the Supreme Court from an order or determination of an adjudicator on the ground of b. (

a) jurisdictional error; c. (

b) error of law; or d. (

c) failure to follow the requirements of natural justice, e. by filing with the prothonotary of the Supreme Court a notice of appeal. 8 . As noted above, Mr. Boone is relying upon section 32(1)(c), alleging a denial of natural justice. 9 .

Section 29 has also been raised by Mr. Boone. In particular, it provides "subject to the provisions of this Act, not later than sixty days after the hearing of the claim of the claimant and any defence or counterclaim of the defendant, the adjudicator may" render his or her order. As noted by Mr. Boone, an order was rendered by the Adjudicator in this instance on the 61st day. 10 . Similarly, Section 32(4) provides: a.

(4) Upon receipt of a copy of the notice of appeal, the adjudicator shall, within thirty days, transmit to the prothonotary a

summary report of the findings of law and fact made in the case on appeal, including the basis of any findings raised in the notice of appeal and any

interpretation of documents made by the adjudicator, and a copy of any written reasons for decision. 11 . Mr. Boone alleges that the Adjudicator failed to abide by the requirement of Section 32(4), providing his

summary report much later than dictated by the provision. 12 . In addition to the statutory provisions contained in the Small Claims Court Act , supra , a number of case authorities are particularly helpful in the resolution of the issues raised herein, most notably, the appropriate standard of review which this Court should

apply in considering the decision under appeal. Although Mr. Boone has only formally appealed on the basis of an alleged failure tofollow the requirements of natural justice, his written and oral submissions make clear that he alleges that the adjudicator made errors oflaw. 13. The standard of review in a Small Claims Court appeal has been recently reviewed and re-iterated by Duncan, J. in PyramidProperties Ltd. v. Johnston 2010 NSSC 53 as follows: a. 21. Saunders J. (as he then was), writing in Brett Motors Leasing Ltd. v. Welsford (NS SC), [1999]N.S.J.

No. 466 (S.C.) considered the scope of what constituted an "error of law": b. 14. One should bear in mind that the jurisdiction of this Court is confined to questions of law which must rest upon findingsof fact as found by the adjudicator. I do not have the authority to go outside the facts as found by the adjudicator and determine from theevidence my own findings of fact. "Error of law" is not defined but precedent offers useful guidance as to where a superior court willintervene to redress reversible error.

Examples would include where a statute has been misinterpreted; or when a party has been deniedthe benefit of statutory provisions under legislation pertaining to the case; or where there has been a clear error on the part of theadjudicator in the

interpretation of documents or other evidence; or where the adjudicator has failed to appreciate a valid legal defence; orwhere there is no evidence to support the conclusions reached; or where the adjudicator has clearly misapplied the evidence in materialrespects thereby producing an unjust result; or where the adjudicator has failed to apply the appropriate legal principles to the provenfacts. In such instances this Court has intervened either to overturn the decision or to impose some other remedy, such as remitting thecase for further consideration. 14.

Relating to credibility findings, and findings of fact, Duncan, J. writes: a. 23. Determinations of credibility and the weight to attach to the evidence are not questions of law. The Nova Scotia Courtof Appeal, in McNaughton v. Ward 2007 NSCA 81, held: b. 34 While the appellant casts all the grounds of appeal as errors "in law", the first three are, with respect, conclusions thatderive from the trial judge's factual findings, assessment of the witnesses, and evaluation of the evidence.

These are functions wellwithin the jurisdiction of the trial judge, who enjoys a significant advantage in seeing the hearing the witnesses first hand. Suchdeterminations draw a high degree of deference and will not be disturbed on appeal absent palpable and overriding error. As directed insuch cases as Housen, supra, and H.L. v. Canada (Attorney General), 2005 SCC 25, "palpable" refers to a mistake that is clear, in otherwords, plain to see; whereas "overriding" is an error that is shown to have affected the result. Both elements must be demonstrated.

We,sitting as an appellate court, will not interfere with a trial judge's findings of fact unless we can plainly discern the imputed error, and themistake is such that it discredits the result. c. 24. That findings of fact are accorded a high degree of deference was reinforced in Davison et al v. Nova ScotiaGovernment Employees Union 2005 NSCA 51: d. 61 Findings of fact will not be reversed on appeal unless the trial judge made a palpable and overriding error.

The samedegree of deference is paid to inferences drawn from the evidence and to all of the trial judge's findings whether or not they are based onfindings of credibility: Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235, per Iacobucci and Major, JJ. at paras. 10 and23 to 25. e. 62 The "palpable and overriding error" standard underlines that a high degree of deference is paid on appeal to findings offact at trial. An error is palpable if it is one that is plainly seen or clear.

An error is overriding if, in the context of the whole case, it isso serious as to be determinative in the assessment of the balance of probabilities with respect to that factual issue: see Housen v.Nikolaisen, supra, at paras. 1 to 5 and Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010 at paras. 78 and80. Thus, not every misapprehension of the evidence or every error of fact by the trial judge justifies appellate intervention. The errormust not only be clear, but "overriding and determinative". f.

I will add that an appeal against the decision of a Small Claims Court adjudicator is further restricted by the absence of arecord of the testimony given in the hearing.

Section 29, and in particular, the effect of the late filing of an adjudicator's order, has been considered on various occasions. Ifind particularly helpful the decision of Edwards, J. in MacNeil v. MacNeil 2003 NSSC 44, who addressed whether the late issuance ofthe order, served to nullify the decision. In determining that such an outcome would not be an appropriate

interpretation and applicationof

section 29, the Court stated: a. [4] The appellant relies on the decision in Bruce Jones v. Lloyd LeDrew (1996), S.N. 102161 (N.S.S.C.), wherein the courtdetermined that a decision rendered out of time was a nullity as a breach of

Section 29 of the Small Claims Court Act. In Jones v.LeDrew, the court concurred with the reasoning of Davison, J. in a March 29, 1996 decision Gordon Shaw Concrete Products Ltd. v.Stavely Weighing & Systems Canada Inc. (March 29, 1996), Doc. S.H. 121056/SCC 32790 (N.S.S.C). b. [5] These decisions, while persuasive authority, are not binding upon me. The learned Justices in those cases did not havethe benefit of the reasons given by our Court of Appeal in Langille v. Midway Motors Ltd. dated March 25, 2002 [2002] N.S.J. No. 133(N.S.C.A.). Although the decision in Langille does not involve an appeal of a decision of the Small Claims Court, the reasoning

contained therein is applicable to the case at hand. In Langille the court was dealing with an appeal from a decision by a Justice of theSupreme Court which decision was apparently reserved for longer than the six months permitted by

Section 34 of the Judicature Act. Atparagraph 8 on page 3 of the decision, the Court of Appeal said in part as follows: c. Assuming without deciding that the decision in this case was reserved for longer than the six months permitted by s. 34 ofthe Judicature Act, we do not agree that there was a loss of jurisdiction in the circumstances. The time limit should not be considered tobe mandatory but rather strongly directory. The appropriate remedy for the failure to deliver a judgement after trial within six months,should be an order for mandamus, not an order for a new trial.

Since the decision has now been delivered, no order is required. d. [6] As I said, I believe that that reasoning is directly applicable to Section 29(1) of the Small Claims Court Act. I wouldnote in passing that

Section 29 appears to be permissive rather than mandatory in nature in that it specified that not later than 60 daysafter the hearing, the adjudicator may make an order. Adopting the reasoning in Langille, I would therefore dismiss the first ground ofappeal. 16. Mr. Boone has also made the allegation that the Adjudicator was biased. An impartial decision maker is a corner stone ofour legal system. The proper administration of justice relies upon absolute impartiality on the part of the decision maker.

The SupremeCourt of Canada has outlined not only the importance of actual impartiality, but that the decision maker must also appear to be impartial. Actual bias, or a reasonable apprehension of bias is sufficient to remove a decision maker from a hearing, or alternately, nullify adecision rendered. See R. v. R.D.S. (SCC), [1997] 3 S.C.R. 484 and Wewaykum Indian Band v. Canada 2003 SCC45. 17. In Wewaykum, supra, the Court notes the difficulty in establishing actual bias in many cases, as it is impossible to peer intothe mind of the decision maker.

The criterion to find a "reasonable apprehension of bias" is described as follows: a. 60 In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by deGrandpre, J. in Committe for Justice and Liberty v. National Energy Board, supra, at p. 394, is the reasonable apprehension of bias: b. . . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves tothe question and obtaining thereon the required information .

In the words of the Court of Appeal, that test is "what would an informedperson, viewing the matter realistically and practically - - and having thought the matter through - - conclude. Would he think that it ismore likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly. DETERMINATION: 18. Having reviewed the law, the Court will now address the issues raised by Mr. Boone.

a) there was evidence before the Court in support of his position that the installation was not performed appropriately by DC DriveElectronics, which was ignored by the Adjudicator. 19. At the hearing, Mr. Boone testified as to his own observations regarding the installation performed by DC Drive Electronics. Mr. Greene, who undertook the installation, also testified. In addition, Mr. Boone submitted into evidence a faxed letter from a Mr.Murphy, who expressed an opinion regarding the appropriateness of Mr. Greene's work. In the letter Mr.

Murphy indicated that hebased his opinion on photographs provided to him and Mr. Boone's description of the condition of the fairing. The photographs werenot, it would appear, in front of the Adjudicator. Mr. Murphy did not attend at the hearing. Mr. Boone also submitted into evidenceprint offs from the internet of websites of other service suppliers. 20. The Adjudicator found that the fairing was installed properly. He chose to accept Mr. Greene's evidence over that presentedby Mr. Boone.

As noted in the authorities above, such a finding should be given a "high degree of deference", unless there is palpableand overriding error. 21. It was the role of the Adjudicator to listen to the evidence, and place on it whatever weight he felt appropriate. Clearly, heplaced less weight on the evidence of Mr. Boone, particularly the documentary evidence. I can find no error on the Adjudicator's

part innot accepting the views as expressed by Mr. Murphy in particular, given that he was not present to be cross-examined, and thephotographs upon which he based his opinion was not before the court. Accordingly, I am not prepared to interfere with the factualfindings made by the Adjudicator.

b) the Adjudicator erred by finding Mr. Greene more credible in his testimony. 22. Decision makers, as part of their role, make determinations of credibility. As noted in the authorities above, determinationsof credibility should also be given great deference as it was the original decision maker who had the opportunity to see the witnesstestify and assess the multitude of factors which give rise to a credibility determination. It would seem that Mr. Boone is offended that

the Adjudicator preferred Mr. Greene's version of events, over that presented by himself. However, it is the Adjudicator's role to make such a determination, and nothing was presented to this Court which would suggest that his assessment of the evidence should be interfered with.

c) the Adjudicator's decision was flawed, as a finding was made in his favour, yet the outcome did not reflect the appropriate outcome of such determination . 23 . Mr. Boone submits that he was successful at the hearing of this matter, yet the damages awarded, being only a portion of what he claimed, did not reflect this success. He argues accordingly, that the decision is, in law, flawed. 24 . I have reviewed carefully the

Summary Report. Although an order issued in his benefit, it cannot be said that Mr. Boone was the successful party. Clearly, the Adjudicator accepted the evidence of Mr. Greene that the installation was done properly, and rejected the evidence put forward by Mr. Boone. He writes at paragraph 9 of the Report: a. 9. . . . It was my view that Mr. Boone had failed to show that the Respondent had been negligent in the performance of the task for which they had contracted.

Notwithstanding this, I concluded that it would be equitable to accede to the Respondent's position and impose an Order in accordance with the request of the Respondent . As I had adopted the Respondent's position on disposition, it was my decision that Mr. Boone should not be awarded costs, given that he had not prevailed in Court in an amount in excess of the settlement proposal of the Respondent. (Emphasis added) 25 . I am satisfied that the Adjudicator found in favour of DC Electronics. It was only because Mr.

Greene had put forward that he was prepared to voluntarily provide some reimbursement as part of good customer service, that the order was drafted in such a manner that Mr. Boone was shown as being entitled to recovery. 26 . Mr. Boone, in support of his position relies upon correspondence he received from Mr. Gavin Giles, Q.C., Chief Adjudicator dated February 28, 2011. Mr. Giles, although carefully and properly making clear that he could not alter, vary or otherwise change the outcome of the Small Claims Court hearing, did suggest that it appeared that Mr. Boone was "largely successful" on his case.

It is also suggested in the correspondence that Mr. Greene had been negligent in the performing of services, and as such, Mr. Boone may be entitled to an additional award. Mr. Boone was encouraged to bring an appeal, should he wish to have his concerns regarding the outcome as determined by the Adjudicator further addressed. 27 . What is apparent, is that in responding to Mr. Boone's correspondence (which was not before this Court), Mr. Giles did not have the

Summary Report prepared by the Adjudicator which fully explained the findings made, and how the ultimate disposition was determined. At best, Mr. Giles would have had the Order issued February 17, 2011, along with Mr. Boone's concerns. It is accordingly understandable why Mr. Giles may question the outcome, however, his comments were premature, and quite certainly not intended to be determinative of any subsequent appeal.

d) the Adjudicator failed to make a determination within 60 days of the hearing, as is required by Small Claims Court legislation. The decision was rendered on the 61st day, and it is submitted that the Adjudicator therefore "rushed" his determination, and did not take the necessary time to appropriately consider the case. 28 . I adopt the reasoning of Edwards, J. in MacNeil , supra . The delay of one day in rendering a decision, did not serve to nullify the outcome as determined by the Adjudicator.

Further, there is nothing before me to establish that the decision was "rushed" or otherwise improper because the Adjudicator found himself "up against" the 60 day deadline. Such would be pure speculation, and certainly not the grounds for appellate intervention.

e) the Adjudicator failed to file his

Summary Report within the time frame required. 29 . The Adjudicator did provide his

Summary Report later than the time frame outlined in the legislation. However, I view this situation as virtually identical to that faced by the Court of Appeal in Langille v. Midway Motors Ltd. 2002 NSCA 39 . The

Summary Report was filed, and served to outline the rationale for the decision rendered. Based on the authorities cited, I am not prepared to find that the Adjudicator lost jurisdiction due to the lateness of the Report.

f) the Adjudicator was biased. 30 . Mr. Boone points to the concerns previously addressed herein, as well as the Adjudicator's conduct during the hearing as strong indicators that he was biased. Given the determinations outlined above, none of the concerns should be considered indicators of any bias.

31 . The conduct which is of concern to Mr. Boone, is the Adjudicator's alleged failure to prevent Mr. Greene from interrupting Mr. Boone in the course of his presentation, but failing to permit him to interject when Mr. Greene was misstating evidence. Undoubtedly, parties want, and deserve to be treated fairly before the court. One party should not receive a particular procedural benefit, while another is denied without very good justification. Assessing this concern is difficult given the lack of a transcript from Small Claims Court proceedings.

The Court cannot review the comments of the Adjudicator, or put them in context in terms of the overall proceedings. 32 . The burden is on Mr. Boone to establish bias or a reasonable apprehension thereof. It is a high burden and impartiality is presumed. Even if a transcript disclosed that the Adjudicator may have permitted Mr. Greene to interject, such would certainly not be conclusive of bias, or a reasonable apprehension of bias. Such would in my view, fall significantly short of the criterion set by the Supreme Court of Canada in the authorities noted above. CONCLUSION: 33 .

For the reasons outlined above, the appeal is dismissed. J.