Fancey v. Keni Inc., 2023 NSSC 75

SUPREME COURT OF Nova Scotia Citation: Fancey v. Keni Inc. , 2023 NSSC 75 Date: 20230228 Docket: Bwt. No. 514190 Registry: Bridgewater Between: Matthew Ray Fancey Appellant v. Keni Inc. (Ken A. Parker) and Ian Millington cob as Ian Millington Automotive Respondents Judge: The Honourable Justice Diane Rowe Heard: December 14, 2022, in Bridgewater, Nova Scotia Counsel: Michael Power, K.C. on behalf of Matthew Fancey Ken A.

Parker on behalf of Keni Inc., self represented Ian Millington on behalf of Ian’s Automotive, self represented By the Court: [ 1 ] This is the appeal of an Adjudicator’s decision made March 8, 2022, dismissing a Small Claims Court claim made by Mr. Matthew Fancey as against the defendants, Keni Inc. and Millington Automotive. [ 2 ] The Appellant sets out two grounds of appeal: (

a) The Adjudicator erred in law by dismissing the claim for want of prosecution; and (

b) The Adjudicator failed to follow the principles of natural justice in allowing “technological barriers” to override access to justice. [ 3 ] The Appellant requests this Court order that the dismissal be overturned, and the matter sent back for a hearing before the Small Claims Court. [ 4 ] The Respondents, while un-represented by counsel, appear to submit in oral argument that there was no breach of natural justice due to any technological barriers, as they were each able to participate in a teleconference scheduled with Adjudicator Raffi Balmanoukian on March 8, 2022.

The Respondents also submit that they should not be prejudiced if the order of dismissal is overturned, as they considered the matter to have been concluded. Teleconference Appearance before Small Claims Court [ 5 ] The Appellant, Matthew Fancey filed a Form 1, Notice of Claim, claiming damages against the Respondents, Keni Inc. and Ian Millington Automotive, on February 1, 2022.

Court staff then handwrote in a date for appearance in the Small Claims Court as March 8, 2022, with the dial-in coordinates for a teleconference to take place at 5:00 pm. [ 6 ] The Respondents were served with the Form 1. [ 7 ] On February 14, 2022, one of the Respondents emailed a PDF copy of a Form 2, Defence and a Form 3, Counterclaim, to Mr. Fancey. [ 8 ] The teleconference proceeded on March 8, 2022. The Respondents were able to join, however, the Appellant did not. The Adjudicator dismissed the claim. [ 9 ] On a preliminary motion, Mr.

Fancey moved for the admission of fresh evidence at the appeal, which he submitted was

essential to the ground of appeal concerning a breach of natural justice, with the evidence to demonstrate he was unable to join theteleconference. The Court considered the motion. The admission of fresh evidence on an appeal is unusual, however, as Justice Arnoldobserved at paragraph 14 of Luke v. Chopra, 2019 NSSC 145: [14] Justice McDougall considered the admission of fresh evidence on a Small Claims Court appeal in Patriquin v. KillamProperties Inc, 2011 NSSC 338 , 2011 N.S.J. No. 502.

He stated: [6] With regard to affidavit evidence, clearly, the Small Claims Court Act appeal provisions do not provide for the submission ofany new evidence. The appeal is not a hearing de novo. It is a hearing based on the record. By record, I mean the contents of the SmallClaims Court file which is requested and provided to our court when a notice of appeal is filed. The entire record, including any exhibitsfiled in the hearing before the Small Claims Court, are all included in that file and they are all open to review by this Court. In addition tothat, the adjudicator is requested to provide a

summary report of findings of law and fact made on the case on appeal. So, in addition tothe decision or order of the adjudicator, the

summary report is also provided to this court and is used in determining the merits of theappeal. [7] As Justice Beveridge indicated in his decision of Lacombe v. Sutherland, … there are occasions when additionalaffidavit evidence may be admitted. Again, I use the word “may” because it is a discretionary thing. It depends on theparticular judge who hears the appeal. A request has to be made to that particular judge to adduce fresh evidence. If it isevidence that would help to establish a jurisdictional error or a breach of natural justice the request might be found to havemerit.

Any additional type of affidavit evidence would only be admitted if truly exceptional circumstances exist. [8] The Small Claims Court Act and its Regulations do not contemplate an appeal by way of trial de novo. It is based on therecord. This is not a carte blanche refusal to admit additional evidence but it would only be in very rare and exceptional circumstancesthat further affidavit evidence would be admitted. There are good policy reasons for this. If affidavits were routinely accepted the appealwould soon morph into a trial de novo. It would be tantamount to an appeal based on a transcript.

The Small Claims Court is not requiredto record the evidence. There is no transcript. To allow affidavit evidence to be filed on appeal to the Supreme Court would addunnecessarily to the expense of the proceeding. It would also defeat the principle purpose for the Small Claims Court which is to providean inexpensive and informal venue for people to present cases without the need to incur the expense of legal representation. [Emphasis added] [10] Mr.

Fancey’s affidavit, dated April 11, 2022 (“Fancey Affidavit”), places into evidence his repeated failed attempts to join theSmall Claims teleconference, and is relevant to establishing the appellate grounds of either jurisdictional error or breach of naturaljustice. The Fancey Affidavit, as it provided evidence related to the grounds for appeal, was admitted. Portions of the Fancey Affidavitwere inadmissible, though, where those paragraphs contained argument in law (specifically paragraphs 28-33), were inadmissiblehearsay, or irrelevant to the appeal. [11] Mr.

Fancey was cross examined on his affidavit, upon admission by the Court. The evidence before the Court concerning hisefforts to join the call, considered in conjunction with the documentary evidence attached to his affidavit, was credible and reliable. [12] On February 22, 2022, Mr. Fancey’s firm emailed Bridgewater Court to confirm the purpose of the March 8, 2022 appearance,enquiring whether this was the trial. A response email was received from the Court indicating the appearance was only to “…set Hearingdates.” [13] On March 8, 2022, Mr. Fancey dialled in on the common 1-800 conference line at 5:00pm.

All matters before the Small ClaimsCourt that evening used the 1-800 conference line, with each individual matter assigned a unique conference number for litigants. [14] As Mr. Fancey was then employed as an articling clerk, he was also required to call in on a client’s Small Claims matter, thatwas also scheduled to come before the Bridgewater Small Claims Adjudicator at 5:00pm. [15] The Adjudicator chose to start the Small Claims teleconference docket with this matter, now under appeal, rather than with Mr.Fancey’s client’s matter. [16] When Mr.

Fancey called into the common conference line, he chose to use the unique conference number for his client’smatter. At the same time, the Respondents joined the call with the Adjudicator using the unique conference number for this matter. Theywere placed in separate “rooms”, although initially all had dialled in on the general teleconference line. [17] Mr. Fancey received a generic automated response that he was “in the conference” and was to wait on the line until theAdjudicator, acting as the call moderator, opened the call. Mr. Fancey waited until about half an hour had passed without any activity onthe call.

He hung up, and dialled into the common 1-800 conference line, but this time used the unique conference number for his ownclaim. More than an hour passed without an appearance, and another attempt to call in was made without success. [18] The Adjudicator, finding the Respondents present on the docketed teleconference appearance but the Appellant absent,dismissed the claim. [19] Then, the Adjudicator simply moved on to the next matter on the docket, and entered into the other teleconference “room”,which was Mr. Fancey’s client’s matter. Mr.

Fancey, however, was by then waiting on this claim, that had been dismissed earlier. [20] The next day, Mr. Fancey instructed his assistant to contact Bridgewater Court staff to enquire about his difficulty getting ontothe teleconference. Court staff responded that the next date for appearance on this matter was set to April 13, 2022. [21] Mr. Fancey’s evidence was that he then chose to file a Quick Judgement Application on March 22, 2022.

[22] On March 29, 2022, Mr. Fancey received a message from the Adjudicator advising that this claim, and the client matter that hehad also attempted to call in on, required a written explanation to the Adjudicator concerning his absences. Mr. Fancey immediatelyreplied, canvassing his attempts to join the teleconference on March 8, 2022. [23] On April 5, 2022, Mr. Fancey received the Form 7 Order dismissing this claim. The Form 7 is a part of the court file, and wasunattached to the

Summary Report of Findings, dated May 17, 2022, submitted by the Adjudicator. [24] I considered both the

Summary Report of Findings and the Order. The Order references law relied upon by the Adjudicator inmaking the decision to dismiss that was not referenced in the

Summary Report. That portion of the Order provides: “It being incumbent upon the Claimant to have and verify proper attendance information, and it appearing that there were no technical orelectronic impediments preventing him from doing so, and upon this being corroborated by the fact that the defendants were able toappear and actually did so, the claim is dismissed for want of prosecution, without prejudice to the Claimant to re-file and re-serve,should he choose to do so (see Nakrayko v Nakrayko, 2002 SKQB 283 at para 9).” [25] The Order does not dismiss the counterclaim filed by the Respondents, and advises the Respondents are to obtain legal advicebefore proceeding. However, the

Summary Report of Findings indicates the Adjudicator thought it possible that he did not havejurisdiction to consider the counterclaim. [26] The purpose of the March 8, 2022 teleconference was to set down procedural steps for the parties, two of whom were selfrepresented persons, in advance of the trial. [27] The

Summary Report of Findings, though, indicates that the Adjudicator, on his own motion, “provisionally dismissed theaction for want of prosecution, subject to any reasonable explanation by counsel, such as technological issues.” [28] The Adjudicator references the Nova Scotia Civil Procedure Rule 82.18, as well as Malloy v. Atton, 2004 NSSC 110 atparagraph 14, and Brown v. Newton, 2009 NSSC 388 at paragraph 27, as support for the exercise of a discretionary power to dismiss theclaimants action for want of prosecution. [29] The Adjudicator also indicates that he had first directed Court staff to inform Mr.

Fancey he was holding both the file, and theother file involved in that evening’s teleconference docket, “pending any immediate explanation as to failure…to appear…and absentsame I would dismiss for want of prosecution. If there is a reasonable justification or excuse offered…which I accept, this would bescheduled for a subsequent pre-hearing…”. [30] Mr. Fancey, though, was informed by Court staff that this matter was set over to April 13, 2022. He then filed a QuickJudgement Application. [31] This Quick Judgement Application, as noted in the

Summary Report, prompted the Adjudicator to again request an explanationfrom the Appellant concerning his absence via Court staff, on March 28, 2022. Mr. Fancey provided his response immediately, but thiswas not to the Adjudicator’s satisfaction, as he found the failure to appear to be an error of Mr. Fancey’s solely, and not caused by thetechnology. [32] The Adjudicator states that the Quick Judgement was also dismissed, based on his review of the filing. [33] In conclusion, the

Summary Report noted that the Adjudicator had exercised his discretion to dismiss this claim for want ofprosecution on a provisional basis. Further, as the explanation for failure to appear was not given in a timely manner to him and was nota failure of the technology, the Adjudicator had ultimately dismissed the claim, but in doing so did not prejudice the right of the claimantto re-file, given the Adjudicator’s calculation that the limitation period had not expired. [34] The Respondents were all of the understanding that the claims against them were dismissed on March 8, 2022. [35] Mr.

Parker, for Keni Inc., spoke to the appeal, although his written submission referred only to the merits of the original claimand was not considered. After listening carefully to the grounds, and reflecting on the proceeding to date, Mr. Parker remarked in his oralsubmission to the Court that he thought the “whole claim” was dismissed by the Adjudicator during the teleconference appearance. Theother Respondent echoed the this when he addressed the Court.

There was no argument offered in relation to the grounds of appeal, butin general, it was submitted that they were successful in joining on the call, and then considered the matter finished as a result of theAdjudicator’s decision that evening. In that sense, without using the words “res judicata”, the meaning of the term was invoked. Theydid not refer to making a request on their own to dismiss this claim for want of prosecution. Analysis A. Error of Law [36] The Supreme Court’s appellate jurisdiction in regard to the Small Claims Court is set out in

section 32 of the Small ClaimsCourt Act, RSNS 1989, c. 430, providing that a litigant may appeal to the Supreme Court on three grounds: jurisdictional error; error oflaw; or failure to follow the requirements of natural justice. [37] Paragraph 14 of Brett Motors Leasing Ltd. v. Welsford, (NS SC), 1999CanLII 1121 (NSSC) summarizes thescope of jurisdiction for the Supreme Court on appeal for an error of law, noting that: One should bear in mind that the jurisdiction of this Court is confined to questions of law which must rest upon findings of fact as foundby the adjudicator. I do not have the authority to go outside the facts as found by the adjudicator and determine from the evidence my

own findings of fact. “Error of law” is not defined but precedent offers useful guidance as to where a superior court will intervene toredress reversible error.

Examples would include where a statute has been misinterpreted; or when a party has been denied the benefit ofstatutory provisions under legislation pertaining to the case; or where there has been a clear error on the part of the adjudicator in theinterpretation of documents or other evidence; or where the adjudicator has failed to appreciate a valid legal defence; or where there is noevidence to support the conclusions reached; or where the adjudicator has clearly misapplied the evidence in material respects therebyproducing an unjust result; or where the adjudicator has failed to apply the appropriate legal principles to the proven facts.

In suchinstances this Court has intervened either to overturn the decision or to impose some other remedy, such as remitting the case for furtherconsideration. [38] Further, an error of law will be found where the Adjudicator has reached an unreasonable or untenable conclusion (BrettMotors, supra at paragraph 16; as cited in The Rendezvous Sports Bar and Lounge v. OnShore Construction Ltd., 2020 NSSC 319, andMJM Energy Ltd. v.

Shana Muise, 2021 NSSC 73). [39] The Adjudicator referenced Nova Scotia Civil Procedure Rule 82.18 as the basis for his dismissal of the claimant’s action forwant of prosecution at the pre-hearing conference. [40] Adjudicators may consult the Nova Scotia Civil Procedure Rules for guidance in the absence of an applicable Small ClaimsCourt rule, as set out in the Act or Regulations (Murphy, J., in Malloy, supra at paragraph 14).

Further, it has been held that unless thereis an express provision in the Act or the Regulations to the contrary, the Civil Procedure Rules may be used for guidance, or evendirection, on procedural issues in keeping with the stated purpose of the Act (MacDougall, J., in Brown, supra at paragraph 27). [41] Civil Procedure Rule 82.18 provides as follows: 82.18 Dismissal for want of prosecution A judge may dismiss a proceeding that is not brought to trial or hearing in a reasonable time. [42] In regard to recent jurisprudence concerning Rule 82.18, and the principles governing dismissal for want of prosecution, theCourt considered Justice Cindy Bourgeois’ decision in Young v.

Merrill Lynch Canada Inc., 2013 NSSC 225, at paragraphs 24 and 25,where she wrote: [24] In Braithwaite v. Bacich, 2011 NSSC 176, this Court opined that the jurisprudence developed under former Rule 28.13 hadcontinuing applicability to motions brought pursuant to current Rule 82.18.

Having been presented with no authorities to the contrary,and having rejected the Defendant’s proposition as noted above, I reach the same conclusion herein. [25] The considerations on a motion for dismissal for want of prosecution are summarized in Braithwaite, supra, as follows: 7 In my view, the factors to be considered in relation to such a motion, are well established, and not controversial. As stated byHamilton, J.A. in MacMillan v. Children's Aid Society of Cape Breton, 2006 NSCA 13: [5] The test for dismissal of an action for want of prosecution is well established. It is summarized in Clarke v.

Sherman et al.(2002), 2002 NSCA 64 , 205 N.S.R. (2d) 112; 643 A.P.R. 112 (C.A.): [8] Thus, to summarize, in order to succeed the onus is upon a defendant to show: first, that the plaintiff is to blame for inordinatedelay; second, that the inordinate delay is inexcusable; and third, that the defendant is likely to be seriously prejudiced on account of theplaintiff's inordinate and inexcusable delay.

If the defendant is successful in satisfying these three requirements, the court, beforegranting the application must, in exercising its discretion, go on to take into consideration the plaintiff's own position and strike abalance -- in other words, do justice between the parties. 8 It is clear that in addressing such a motion, the Court must consider not only all three of the enunciated factors, but must alsoundertake balancing of justice between the parties, most notably, considering the plaintiff's position (See Brogan v. RBC DominionSecurities Inc., 2009 NSSC 351).

It is equally clear that each case must be determined on the basis of its own particular circumstances. 9 The Defendants have asserted however, that in some circumstances, the third factor as outlined above, may be presumed,resulting in a plaintiff carrying the burden of establishing there has been no serious prejudice. This approach has clearly been adopted, inappropriate circumstances (see Martell v. McAlpine Ltd. (1978), (NS CA), 25 N.S.R. (2d) 540), and recently re-articulated by the Court of Appeal in MacMillan, supra, as follows: [19] The case law indicates prejudice may be presumed in some circumstances.

The judge referred to this case law and found that in thecircumstances of this case they should presume serious prejudice rather than require the respondents to prove it: [23] Mr. Justice Chipman of our Court of Appeal in Saulnier v. Dartmouth Fuels Ltd. (1991), (NS CA), 106N.S.R. (2d) 425, ... confirmed the Cooper test in Martell on the question of onus at page 430...

I quote: All that can be said generally about onus is that while the onus is initially upon the defendant as applicant to show prejudice,there may be cases where the delay is so inordinate as to give rise in the circumstances to an inference of prejudice that falls upon theplaintiff to displace. The strength of the inference to be derived from any given period of delay will depend upon all the circumstances inthe case.' [24] And finally in Moir v. Landry (1991), (NS CA), 104 N.S.R. (2d) 281 (N.S.C.A.), this was a case

involving a three year delay. Mr. Justice Hallett, of the Court of Appeal, writing for the Court, noted that the onus to establish prejudice falls on the defendant except in cases of unusual long delay, such as the ten years in Martell. Justice Hallett said at page 284 in Moir v. Landry , supra ...: A plaintiff has a right to a day in Court and should not lightly be deprived of that right.

Therefore, it is only in extreme cases of inordinate and inexcusable delay that a Court should presume serious prejudice to the defendant in the absence of evidence to support such a finding. [Emphasis Added] [ 43 ] I must note that Civil Procedure Rule 82.18 does not provide, on its face, authority for a Justice to dismiss a claim on their own motion for want of prosecution. Neither does the common law associated with the Rule appear to support an

interpretation in which a Justice would dismiss an action or application on their own motion. [ 44 ] The common law requires a defendant seeking dismissal for want of prosecution to put forward supporting evidence demonstrating that the plaintiff is to blame for inordinate delay that is inexcusable, with serious prejudice likely to result on account of the delay.

As a result, there is usually a high evidentiary threshold to be met by the defendant who has advanced the motion. [ 45 ] The Court must balance the interests of the litigants when considering a motion to dismiss for want of prosecution, as it is a decision informed by equity, and the motion may be refused if dismissal would result in a patent injustice. [ 46 ] In Grosvenor v. Whalen , 2002 NSSC 18 , Justice Gruchy considered an appeal from an Adjudicator’s order dismissing a claim for want of prosecution. In that matter, there were scheduling difficulties over the course of a full year to conclude a trial.

In the interim, the defendant approached the Adjudicator, without the claimant present, to request if the Adjudicator would consider dismissal of the claim for want of prosecution. The Adjudicator proceeded to hear the motion to dismiss at the next scheduled appearance, without hearing evidence that was then available, and dismissed the claim for want of prosecution.

The Appellant was successful, with the Court finding there was also a breach of natural justice in the circumstances, with Gruchy, J., literally underlining in the decision the fact that the claimant was not present before the Adjudicator when dismissal for want of prosecution was first put before them.

Further, the Court found there was no evidence of prejudice to the defendant caused by delay of the plaintiff before the Adjudicator to support granting the order, and it was set aside. [ 47 ] While Grosvenor, supra comments broadly on the applicability of the former Civil Procedure Rule 37.12 regarding want of prosecution in the Small Claims Court context, it is since settled law that an Adjudicator may look to the Civil Procedure Rules for guidance on procedural issues. However, correctness in law is the standard of appellate review.

The common law principles in this appeal concerning dismissal for want of prosecution in the Small Claims Court are guided by the jurisprudence of Hallett JA, in Moir v. Landry

(1991) CanLII 2572 at paragraph 11, cited in Grosvenor , supra under the former Civil Procedure Rule 37.12 and as cited more recently in Young , supra , in relation to the current Civil Procedure Rule 82.18.. [ 48 ] The Nakrayko, supra decision, was apparently cited by the Adjudicator to support a finding in law in that a dismissal of a claim for want of prosecution may not result in prejudice, as dismissal is not a bar to a later action for the same relief. Such a finding would have to be based on evidence, though, in support of a motion. [ 49 ] That is not the situation in this appeal.

There was no motion before the Adjudicator by the defendant seeking dismissal for want of prosecution. The claimant was not involved in any hearing concerning a dismissal. There was no evidence before the Adjudicator that would support a dismissal for want of prosecution. [ 50 ] I find that the dismissal of the claim for want of prosecution in these circumstances is an error in law and would result in an injustice, as the claimant is deprived of their ability to proceed.

The dismissal of the claim on the basis of want of prosecution was unreasonable and untenable in the circumstances. [ 51 ] The Appellant was engaged in prosecuting their claim in a timely manner. Even accounting for a shortened timeline, in recognition of the time periods set out in the Small Claims Act and Regulations , would not result in a reasonable finding of inordinate delay. Repeated attempts by the Appellant to contact the Court to clarify, explain or remedy the failure to appear on the teleconference occurred, but were not successful.

The Appellant had proceeded to file a Quick Judgement within weeks of the initial failed attempt to join the organization teleconference, although the claim was dismissed. [ 52 ] The Respondents submission concerning res judicata is not supportable. There was no motion with evidence put forward by the Respondents seeking that the Adjudicator dismiss this claim for want of prosecution. There was no hearing on the merits of the claim as a result of the claim’s dismissal. B. Breach of Natural Justice [ 53 ] Warner, J. in Kemp v.

Prescesky , 2006 NSSC 122 , first recognized that the requirements of natural justice and procedural fairness in Small Claims Court proceedings were heightened in light of the increased monetary jurisdiction of the Small Claims Court and mandate ( Kemp , supra at paragraph 27 ; cited in Caughey v. Gulliver , 2021 NSSC 306 , at paragraph 23 ). [ 54 ] The Appellant submits the claim was dismissed, in their absence and without notice.

It is clear this was not procedurally fair ( Grosvenor, supra ). [ 55 ] The Appellant also submits that their inability to be “present” in the correct teleconference room constituted a breach of natural justice as they were not able to access the Court. This was characterized as a difficulty with technology, and that natural justice requires the physical presence of litigants in the room.

[ 56 ] With respect, the concept of “presence” with the aid of media, whether video or audio, cannot be reduced to physical presence in a room before an impartial decision maker only.

If the Court were to accept this submission, then opportunities for litigants to access justice by innovative means would become limited, at a time when technology may improve and expand access to justice. [ 57 ] It appears to the Court that “presence” in this matter still comes down to the opportunity to be heard, in keeping with the principles of natural justice. [ 58 ] In the Court’s view, the Adjudicator committed a breach of natural justice by not offering an adjournment when it was apparent that the claimant was not “in the room” of the teleconference and proceeded to dismiss the claim, when the teleconference was organizational. [ 59 ] The form of an appearance before the Adjudicator via teleconference does not constitute a breach of natural justice.

It was the inability of the litigant to notice and to participate meaningfully in the disposition of the claim that is the breach of natural justice. [ 60 ] While Marshall McLuhan famously remarked that “the medium is the message” an appearance, whether via telephone or video, is still a court appearance and a step in the proceeding. In this matter, what was a scheduling exercise before the Adjudicator became a disposition on the claim, without notice to the claimant or their participation, and resulted in the improper dismissal of the claim.

Decision [ 61 ] The appeal is granted for the reasons set out above, and the Adjudicator’s order dismissing the claim is set aside. The Court orders that the matter be remitted for adjudication, with the claim to be heard by another Adjudicator of the Small Claims Court. Rowe, J.