C.A. No. 121062
NOVA SCOTIA COURT OF APPEAL
Bateman, Hart and Flinn, JJ.A.
Cite as: Pozzebon v. McPhee, 1996 NSCA 166
BETWEEN:
MARY COLLEEN POZZEBON and )
JOHN CHARLES POZZEBON )
) no one appeared ) for the Appellants
)
Appellants )
) Robert W. Wright, Q.C.
- and - ) for the Respondents
)
)
HARVEY McPHEE and )
RICHARD BUREAU )
) Appeal Heard:
) September 18, 1996
Respondents ) )
) Judgment Delivered:
) September 26, 1996
)
)
) ) )
)
THE COURT: Appeal dismissed with costs to the respondents in the amount of $500.00 inclusive of disbursments per reasons for judgment of Bateman, J.A.; Hart and Flinn, JJ.A. concurring.
BATEMAN, J.A.:
The appellants appeal the decision of the Chambers judge striking their Statement of Claim.
Background:
In 1989 the appellants brought suit against the Catholic Episcopal Corporation of Antigonish for damages arising out of a slip and fall accident, which fall occurred in 1979. After a three day trial in Supreme Court, the presiding judge dismissed the appellants' action. The appellants appealed that order and changed their counsel from Harvey McPhee, who had represented them at trial, to Richard Bureau. On March 26, 1990, the appeal was discontinued by consent of the parties.
On March 20, 1995, by Originating Notice (Action) and Statement of Claim, the appellants brought suit against the two lawyers. While the Statement of Claim is unclear, it appears that the basis of the appellants' action against the two solicitors is their alleged failure to properly represent the appellants in the slip and fall action and the subsequent appeal.
By Interlocutory Notice filed July 18, 1995, the respondents made application, to a judge of the Supreme Court in chambers, pursuant to Civil Procedure Rule 14.25(1), to have the Statement of Claim struck as disclosing no reasonable cause of action. After an adjournment of the originally scheduled hearing date, to provide the appellants with an opportunity to retain counsel, the application proceeded on September 6, 1995. The appellants had not retained counsel. After hearing the appellants and the respondents, the Chambers judge issued an Order striking the Statement of Claim. It is from that Order that the appellants now appeal.
The respondents have applied, pursuant to Civil Procedure Rule 62.18, to quash the appellants' Notice of Appeal. By direction of a judge of this court it was determined that the application would be heard by the panel at the same time as the appeal.
Request for Adjournment:
On the day that this appeal was scheduled to be heard the Court received a telephone request from Mrs. Pozzebon, seeking an adjournment. Mrs. Pozzebon suffers from epilepsy. She advised that she had been seen at the hospital the night before, was under treatment for epilepsy, was required to remain at rest for three days and was to have blood tests the morning of the hearing. The telephone call was followed by a faxed letter, on hospital letterhead, signed by a person, presumably a doctor, although not identified as such, confirming the above. Counsel for the respondents objected to the adjournment.
Some review of the history of this matter is appropriate. The file reveals that the Notice of Appeal was filed on October 5, 1995, although not served upon the respondents until November 1. On December 6, 1995, by Chambers telephone conference, the hearing of the appeal was set for May 15, 1996. At that time counsel for the respondents advised the Court and the appellants of his intention to make application to quash the Notice of Appeal. The appellants requested that he defer making that application until February 1, 1996. The respondents' solicitor agreed. By letter dated January 22, 1996, from the appellants to counsel for the respondents, they again requested that he delay the application until the latest possible date in March. In that letter Mrs. Pozzebon advised that she an her husband were both under a doctor's care and unable to travel to Halifax. Counsel for the respondents accommodated. On March 18, 1996 the respondents' solicitor filed documents in support of an application to quash the Notice of Appeal, the application to be heard on March 28. On March 11, 1996, however, the Registrar's office had received a letter, dated March 5, from Mrs. Pozzebon advising the court that she was unable to file her factum by the appointed date, which was March 20, and requesting an adjournment of the date for the appeal hearing. She cited health reasons, advising that she was scheduled for an emergency hysterectomy on March 12. This court advised counsel for the respondents of that request on March 20, 1996. By letter to the Court counsel for the respondents responded that he would not be objecting to the assignment of a new hearing date, on the understanding that his own application for an Order quashing the Notice of Appeal would be set down in a timely way.
A conference call with the Chambers judge was scheduled for March 27, 1996. During that conference call a new hearing date was assigned, that date being September 18, 1996. At the same time the application to quash the Notice of Appeal was rescheduled to June 27, 1996. On June 27, at 9 a.m., Mrs. Pozzebon called the court to advise that she and Mr. Pozzebon could not attend the hearing. According to the information that she provided, Mrs. Pozzebon's mother had been in intensive care at the Cape Breton Regional Hospital since the preceding Friday. Her mother's admission to the hospital had triggered Mrs. Pozzebon's epileptic seizures thus she was unable to leave Cape Breton. Mr. Pozzebon could not attend because he had to stay to look after Mrs. Pozzebon. She requested an adjournment. The application was adjourned to July 27, 1996. On July 25, 1996, counsel for the respondents received a letter, by fax, from Mr. and Mrs. Pozzebon advising that she had suffered a seizure on July 23 and could not make the trip to Halifax nor be left alone. The accompanying note, again, presumably from a doctor although not indicating such, said that Mrs. Pozzebon was seen at the hospital on July 23, 1996, that she had an increase in the frequency of her seizures "and requires investigation". The application to quash was again adjourned, to be heard on September 18, 1996 along with the appeal.
In light of this background, the panel determined that a further adjournment would not be granted. While reasonable requests for adjournment will generally be looked upon with favour and some additional latitude is provided to unrepresented litigants, it was the panels' view that the request in this instance was not reasonable, given the many past accommodations. Additionally, the court was provided with no explanation as to why Mr. Pozzebon, the co-appellant, could not attend the hearing.
Rather than dismiss the appeal, however, the panel considered the appeal, taking into account the written submissions of the appellants.
Issues:
The issues are:
1. Should the Notice of Appeal be quashed?
2. Did the Chambers judge err in law in finding that the Statement of Claim disclosed no reasonable cause of action?
Analysis:
The test to be applied by this court when reviewing a discretionary order made by the Chambers judge, which order has the effect of terminating the proceeding, was stated by Roscoe, J.A. in Purdy Estate v. Frank (1995), 142 N.S.R. (2d) 50. She concluded that the issue is whether "there was an error of law resulting in an injustice".
Civil Procedure Rule 14.25(1) provides:
14.25(1) The court may at any stage of a proceeding order any pleading, affidavit or statement of facts, or anything therein, to be struck out or amended on the ground that,
(a) it discloses no reasonable cause of action or defence;
. . .
(2) Unless the court otherwise orders, no evidence shall be admissible by affidavit or otherwise on an application under paragraph (1)(a).
In Barkhouse v. Steele (1995), 142 N.S.R. (2d) 397 at p. 399, Roscoe, J.A., writing for the Court, cited with approval the test established in Vladi Private Islands Ltd. v. Haase et al (1990), 96 N.S.R. (2d) 323 as the that to be applied by a judge on an application pursuant to Rule 14.25. That test is set out at p. 325 of Vladi:
The proper test to be applied when considering an application to strike out a statement of claim has been considered by this Court on numerous occasions. It is clear from the authorities that a judge must proceed on the assumption that the facts contained in the statement of claim are true and, assuming those facts to be true, consider whether a claim is made out. An order to strike out a statement of claim will not be granted unless on the facts as pleaded the action is 'obviously unsustainable. . . .
While the Chambers judge did not refer specifically to the Barkhouse and Vladi cases, he did rely upon a number of authorities to the same effect. His decision reveals that he carefully reviewed the Statement of Claim and found only two paragraphs which might possibly set out the basis for a claim. In this regard he said, however:
It is my view that both of those paragraphs fall far short of establishing any sort of a real cause of action . . . The Statement of Claim is not a summary of facts which gives rise to a cause of action. It is a narrative of certain events which seem to be strung together but with no discernable pattern and really do not assist this Court. The Statement of Claim rambles and does not state any particulars of the claim and does not identify a claim. I am not able to see that it discloses a reasonable cause of action . . . It simply says that they believe Mr. MacPhee did not represent them in a professional manner due to his lack of knowledge and experience. His lack of knowledge and experience seems to me would not translate into a cause of action unless it was followed by serious mistakes. There are no allegations of serious mistakes whatsoever alleged. That particular paragraph also refers to the fact that Mr. MacPhee had only been admitted to the Bar for approximately one year but that, obviously, in itself is not an act of negligence.
In this analysis the Chambers judge did not err. The Statement of Claim does not disclose the basis for an action against the respondents.
The Chambers judge instructed himself properly. He expressly recognized that the power to strike a Statement of Claim should be used sparingly and only in the clearest of cases.
There was no error of law made by the Chambers judge. His decision does not result in an injustice.
In view of this finding it is unnecessary to consider the application to quash the Notice of Appeal.
Disposition:
I would dismiss the appeal with costs to the respondents in the amount of $500 inclusive of disbursements.
Bateman, J.A.
Concurred in:
Hart, J.A.
Flinn, J.A.
C.A. No.121062
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
MARY COLLEEN POZZEBON and
JOHN CHARLES POZZEBON
)
Appellants )
- and - ) REASONS FOR
) JUDGMENT BY:
HARVEY McPHEE and RICHARD )
BUREAU )
) BATEMAN,
) J.A.
Respondents )
)
)
)
)
)
)