Corradini v G. Muttart Law Corp. Inc., 2022 NSSC 35

SUPREME COURT OF Nova Scotia Citation: Corradini v G. Muttart Law Corp. Inc., 2022 NSSC 35 Date:2022-02-01 Docket: Ken. No. 505265 Registry: Kentville Between: Richard Corradini Appellant v. G. Muttart Law Corp. Inc. Respondent Judge: The Honourable Justice Gail L. GatchalianHeard: October 12, 2021Final Written Submissions: October 26, 2021, Appellant November 10, 2021, Respondent Counsel: Patrick Eagan, for the Appellant Geoff Muttart, for the Respondent BY THE COURT: Introduction [1] The Appellant, Richard Corradini, hired a lawyer from the Respondent law firm, G. Muttart Law Corp. Inc.

On March 16,2018, Muttart Law filed a claim against Mr. Corradini in the Small Claims Court for unpaid legal fees. Mr. Corradini did not file adefence. On May 8, 2018, the Small Claims Court adjudicator issued a default judgment, also called a Quick Judgment, against Mr.Corradini under s.23(1) of the Small Claims Court Act. Almost three years later, on March 30, 2021, Mr. Corradini filed a motion askingthis court to extend the time for filing an appeal under the Act. Muttart Law argues that this court lacks jurisdiction to hear the appealbecause Mr.

Corradini could have asked the adjudicator to set aside the default judgment under s.23(2) of the Act. Muttart Law says thatinterpreting the Act in this way avoids overlapping jurisdiction between the Small Claims Court and the Supreme Court and best achievesthe purpose of the Act, which is access to justice. Mr. Corradini says that there is nothing explicit in the Act that deprives this court of thejurisdiction to hear an appeal of a default judgment. Counsel asked that I determine this question of jurisdiction first. [2] To determine whether this court has the jurisdiction to hear Mr.

Corradini’s appeal, should his motion to extend the time toappeal be granted, I will consider the purpose of the Act and the relevant words of the Act. The Purpose of the Act [3] When interpreting the Act, I must read the words of the Act in their entire context and in their grammatical and ordinary senseharmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Rizzo & Rizzo Shoes Ltd., (SCC) at para.21 and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para.26, citing Driedger’s Construction of Statutes (2nd ed. 1983), p.87.

I must also be guided by s.9(5) of the

Interpretation Act, which states in part that “[e]very enactment shallbe deemed remedial and interpreted to insure the attainment of its objects …” [4]

Section 2 of the Act states that the intent and purpose of the Act is “to constitute a court wherein claims up to but not exceedingthe monetary jurisdiction of the court are adjudicated informally and inexpensively but in accordance with established principles of lawand natural justice.” [5] Muttart Law asserts that one of the ways in which the Act achieves the informal and inexpensive adjudication of claims within

its monetary jurisdiction is by avoiding overlapping jurisdiction, relying on the discussion by Professor W.H. Charles, Q.C. of thehistorical factors leading to the development of the Small Claims Court in “Small Claims Disputes in Nova Scotia and Access to Justice,”(2020) 43:2 Dal LJ 963 at p.983. Muttart Law says that the Act should be interpreted to avoid overlapping jurisdiction between this courtand the Small Claims Court over the setting aside of default judgments.

The Relevant Words of the Act [6] It may be that interpreting the Act as depriving this court of the jurisdiction to hear an appeal directly from a default judgmentwould best achieve the informal and inexpensive adjudication of claims. However, I cannot ignore the clear words of the Act. The appealsection refers to an order or determination of an adjudicator.

A default judgment is an order of an adjudicator. [7] Subsection 32(1) of the Act states that a party may appeal to this court “from an order or determination of an adjudicator” onthe ground of jurisdictional error, error of law, or failure to follow the requirements of natural justice.

A default order under s.23(1) is anorder of an adjudicator. [8] Subsection 23(1) of the Act states that an adjudicator may make “an order against the defendant” without a hearing where thedefendant has not filed a defence within the time required and the adjudicator is satisfied that there was proper service and that, based onthe adjudicator’s assessment of the documentary evidence, the merits of the claim would result in judgment for the claimant. [9] Under s.23(2) of the Act, where the defendant appears before the adjudicator who made the default order under s.23(1), theadjudicator “may set aside the order and set the claim down for hearing” if the adjudicator is satisfied that: (

a) the defendant has areasonable excuse for failing to file a defence within the time required, and (

b) the defendant appeared before the adjudicator withoutunreasonable delay after learning of the order. [10] The plain words of the Act indicate that a default order may be the subject of an appeal to this court. This

interpretation is notinconsistent with the objective of informal and inexpensive adjudication, as s.23(2) gives a defendant a less formal and less expensiveoption than an appeal to set aside a default judgment when the defendant has a reasonable excuse for failing to file the defence in time. [11] I must address the decision in Clark v.

PF Collier & Son Limited, (NSSC), where Haliburton J. held that thatthe appellant, who had filed an appeal against a default judgment rather than asking the adjudicator to set it aside, had no right of appeal.Haliburton J. said that the appellant had failed to exhaust all his remedies in the Small Claims Court because a default judgment is notfinal until an application to set aside under s.23(2) has been dismissed.

Clark may be an example of the court exercising its discretion todecline to hear an appeal based on the principle of administrative law that, absent special circumstances, interlocutory decisions of anadministrative tribunal should not be challenged until the tribunal renders its final decision on the merits. This principle has also beenapplied to statutory appeals: see Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2008 NSCA 108 at paras.9and 10.

Muttart Law did not rely on this principle of administrative law in this matter. [12] If Clark stands for the proposition that this court has no jurisdiction to hear an appeal from a default judgment, I respectfullydecline to follow it. Subsection 32(1) of the Act does not require an order or determination to be final for there to be a right of appeal. SeeJamieson (c.o.b. Strait Excavating) v.

LeFrank, 2013 NSSC 420, in which Van den Eynden J. dealt with the merits of an appeal from adefault judgment under s.23(3) of the Act (where a defendant files a defence but does not appear at the hearing) even though the appellantopted not to ask the adjudicator to set aside the default judgment under s.23(4) of the Act. Conclusion [13] The preliminary objection of Muttart Law is dismissed. This court has the jurisdiction to hear Mr. Corradini’s appeal unders.32(1) of the Act. Mr. Corradini will have to first succeed in his motion to extend the time for filing his appeal.

If the parties cannotagree on costs, I will receive costs submissions within 30 calendar days of this decision. Gatchalian, J.