Cite as: Trimper v. McClement, 1989 NSCO 5 • C.D. No. 2582 S.C.C.D. -No. 1651 IN THE COUNTY COURT OF DISTRICT NUMBER THREE BETWEEN: DOUGLAS LEROY TRIMPER RESPONDENT - and -DAVE McCLEMENT and NORTH GATE AUTO and COR-DEM INDUSTRIES LTD. APPELLANT HEARD: At Digby, Nova Scotia, on the 4th day of January, A.D. 1989 BEFORE: The Honourable Judge Charles E. Haliburton, J.C.C. DECISION: The lOth day of January, A.D. 1989 COUNSEL: Douglas L. Trimper, the Respondent, for himself Yvonne R. LaHaye, for the Appellant D E C I S I 0 N 0 N APPEAL
• HALIBURTON, J.C.C. This is an appeal from a L. Outhouse, Esq., Adjudicator of Digby County, arising from an Order made by him in favour of the Plaintiff, Douglas LeRoy Trimper, against Dave McClement, Gate Auto and COR-DEM Industries Claim discloses that the Plaintiff alleged misrepresentation by McClement in ·connection with a Trimper from the Defendants, or one of them. The Appellant has appealed Adjudicator on the basis that it constitutes a denial of natural justice. The issues raised involve the question of whether or not the Defendants had been served with the "Notice of Claim". Certain relevant facts found by summarized as follows: That the claim was issued on the 14th day of July, 1988, and gave notice scheduled for 7:00 p.m. August, 1988. The Adjudicator found that the claim form allowed 20 days for service the 14th day of July. The first attempt at registered mail but the envelope was returned undelivered after being held 15 days without acceptance by the addressee. envelope was sent by deli~ery was accepted by one Ronald Bleakney on August 11th. "On the advice of the Clerk, the Claimant re-served the same claim form by certified mail on August would appear that the forwarded by certified delivered, this time signature is not legible. determination made by James the Small Claims Court for North Limited. The Statement of motor vehicle purchased by the decision of the the Adjudicator may be of a hearing on the 30th of from service was by A further certified mail and 19th, 1988". It second envelope mail was also to a person whose
- 2 The Adjudicator further states: 8. · That I found that service effected by the first certified mail service (August 11, 1988); that was superfluous and that in services allowed sufficient filing of a defence. 9. That I further found that was effective on Dave Auto and Cor-Dem Industries Limited. The Adjudicator, in his decision of my brother, H. J. MacDonnell, Court for District Number Five, MacDonnell & MacDonald v. Gerald Andrew Francis, reasons from that, that delivery completed- return card is as effective registered mail. Section 23 of the Small Claims Court Act Where the defendant does hearing and the adjudicator is satisfied that the defendant has been served ... makes it clear that the effectiveness of servlce is one of those matters to be determined by the Adjudicator. in his decision herein, specifies that he concerned himself with whether or not service had been effected. portion of the Stated Case makes it apparent that there evidence before him on which he reached his conclusions. is, of course, no evidence before me. Stated Case itself were to reveal that the Adjudicator erred in law in reaching those conclusions, which to find his conclusion to be in error. -was properly the second service any event, both time for the such service McClement, Northgate Stated Case, refers to the Judge of the County in the case Macintosh, C P 11,007 and by certified mail with the under the Act as not appear at the The Adjudicator, A review of that was There Therefore, unless the I would have no basis on
- 3 Insofar as service is concerned, Section 21(3) of the Act provides: Service of all documents service, registered mail, service in the manner regulations. The only regulation applicable is 3: The time for serving Defendant shall be 10 days from the date from which the claim is filed or such additional time as the Clerk or Adjudicator may allow. It is important to bear in mind the concept behind the implementation of the Small Claims Court system. the Small Claims Court Act provides: Purpose of Act 2. It is the intent and purpose of this Act to constitute a court wherein but not exceeding the monetary of the court are adjudicated informally and inexpensively in accordance with established principles of law and natural justice. The Legislature has provided that, Court proceedings, the Notice of registered mail or by some method of substituted service should the Adjudicator so order. The Appellant takes the_ position that the term "registered mail" is specific absence of an order for substituted service understand correctly, that if the Legislature had intended that certified mail could be substituted, then that would have specifically provided in the statute .. -may be by personal or substituted prescribed by the the claim on the Section 2 of claims up to jurisdiction in Small Claims Claim may be served by and exhaustive in the and argues, if I been Registered mail and
- 4 ~ certified mail have one significant distinguishes both methods from posting by ordinary mail. both registered and certified mail, sign for the envelope, thus acknowledging receipt. thereof is either sent automatically sender. On the other hand, registered mail and certified mail are different in that the postal service maintains a register of registered mail and various officers responsible for tracking that particular item. mail, no such registers are maintained. between the post office and the sender of a registered letter is different from certified in that, service assumes some special liability while with the latter, between the sender and the addressee, is the same- in both cases, and the addressee must receipt in writing. It was held in Blenkhorn v. Burke, 1985, MacDonnell, J.C.C., that mere proof service where registered mail has been used, case, Visser v. Blackie, 1984, CAM held that, where the Adjudicator registered mail had been returned to the sender, proof of service. It is clear from looking at those cases that the precedent has been established that strict compliance with Section 23 by the "sending" of deemed to be effective service unless there is evidence to the contrary before the Adjudicate~. - common element which With the receiving party must Confirmation or on request to the along the route are With certified The relationship then with the former, the postal responsibil_i ty and perhaps such is not the case. As however, the relationship acknowledge CAM No. 5336, of mailing is proof of while in another No. 4988, Judge MacDonnell was aware that the unopened there was no a registered letter will be
- 5 The Appellant argues for of "registered mail". In my view, it is clear requested to do so, might have authorized substituted service by such methods as "posting" the claim on the business premises or even by ordinary mail. What had the Legislature in mind Act? It had in mind primarily the need to arbitrate minor claims without major expense. major expense, particularly where the Defendant is not happy to be served. It had in mind the requirement that there be "reasonable" assurance that the proceedings, and that notice be sufficiently timely to give reasonable opportunity to respond principle of law). That "notice" will someone assumes the responsibility of "accepting" the notice 1n the Defendant's name. It is that aspect of the "registered" letter that is significant. The quality of that notice is equally fulfilled by the "certified" letter. The existence of when the envelope departed the Digby postal station, through the Halifax postal station, would be entirely irrelevant to that essential consideration. I am reinforced in that view by the finding in Visser v. Blackie (supra) which confirms my own view that it is not the -a restrictive interpretation that the Adjudicator, if when approving the Personal service can be a a Defendant had notice of the a or appear (established surely be assured if a register recording or passed
- 6 act of "sending" the registered mail and not the tracking of its travels which will effect "service", presumption that the party who signed for and "received" it was the addressee, or someone under his authority. This, as I understand it, by the Adjudicator herein. After considering the intent of the Act and the cases cited, I am of the view that the finding that the service "was properly effected" mail. Counsel for the Appellant service could not have been effective, because the claim form included the caveat that that claim is to (;., be served within "20 days of the 14th of July, 1988". Regulation 3 cited above, claim is to be served within 10 days "or such additional time as the Clerk or Adjudicator may allow". intent of Section 2 of the Act, the intended to be a Court in which specious or technical arguments will prevail. The Adjudicator, in his Stated Case, found that the Clerk had extended the found the claim was "received" by the Defendants on August 11th, 1988 which by this time was a few days beyond the 20 days set forth by the Clerk on the claim form. the Clerk, the Claimant claim form by certified mail on·August 19th, 1988. but rather it is the was the conclusion reached Adjudicator did not err in by certified argues further that the even if delivered, however, provides that the Again referring to the Small Claims Court is not implicitly time for service. He On the advice of re-served the same
- 7 As the Adjudicator observes in any event, effected on August ll~h or on sufficient time for the. filing of Court, no less than any other Court, has the power and authority to control its own processes. The time when the service was effected conclusion as to whether or not before the date fixed for the concluded that it was. As an Appeal position to say that he erred in so finding. The Appellant argues corporate defendants was not effective because it was on the recognized agent of the respective corporations. observe only the opening paragraph submission, which says: The Appellant, Mr. David owner/operator of the COR-DEM Industries Limited, owner/operator of the company that was as North Gate Auto. As the Adjudicator observes in his Stated Case, the existence of recognized agents is not a fact of general unless claimants retain legal counsel, they are unlikely to have any knowledge of the requirement of effecting service recognized agents. In this case, the Adjudicator made a finding of fact that the Plaintiff had McClement who had the apparent authority to contractually bind Cor-Dem Industries Ltd." In -whether service was August 19th, it "allowed a defence". The Small Claims Adjudicator considered the and reached his own service .19 days or 11 days hearing was adequate. He Court, I am not in a finally that service on the not made I would of the Appellant's McClement, is the company known as and was the known knowledge and that through dealt primarily with "Dave any event, the Corporations
- 8 Registration Act provides for service on corporations, giving a much greater latitude than that Appellant and would, in the context of the Act, clearly permit service on author-ized to pick up his mail. It is perhaps worth noting that the file reveals that the Order granted by the Adjudicator at the conclusion of the hearing was mailed to the same original claim forms of the Plaintiff. decision brought a response within Defendants. That reaction of the confirm that the Adjudicator did, fairly reliable evidence about the service and delivery of the (., claim form before making a determination Plaintiff's claim. The file does.not reveal any basis for allowing costs to the Respondent on the appeal. dismissed without costs. The Plaintiff/Respondent is entitled to his judgment. DATED at Digby, Nova Scotia, this lOth day of January, A.D. 1989. ~ES E. JUDGE OF DISTRICT NUMBER -claimed by counsel for the Small Claims Court the "owner /operator" or those two addresses as were the The Adjudicator's seven days from the Defendants would seem to in fact, have before him some on the merits of the Accordingly, the appeal is HALIBURTON FOR THE COUNTY COURT THREE
- 9 -TO: Clerk of the County Court P.O. Box 668 Digby, Nova Scotia BOV lAO Mr. Douglas L. Trimper R.R. #1 Mount Pleasant Digby County, Nova Scotia BOV lAO Ms. Yvonne R. LaHaye Scaravelli & Garson Barristers & Solicitors Suite 156 1869 Upper Water Street Halifax, Nova Scotia B3J lS9 Solicitor for the Appellant CASES AND ACTS CITED: MacDonnell & MacDonald v. Gerald Andrew Francis, C P 11,007 Small Claims Court Act, R.S.N.S. 1980 Blenkhorn v. Burke, 1985, CAM No. 5336 Visser v. Blackie, 1984, CAM No. 4988 Corporations Registration Act, R.S.N.S. 1967, c. 59
C.D. NO. 2582 S.C.C.D. NO. 1651 IN THE COUNTY COURT OF DISTRICT NUMBER THREE . BETWEEN: DOUGLAS LEROY TRIMPER RESPONDENT -and-DAVE MCCLEMENT and NORTH GATE AUTO AND COR-DEM INDUSTRIES LTD. APPELLANT CASE STATED by James L. Outhouse, an Adjudicator of the Small Claims I ' Court of Nova Scotia. 1. On the 30th day of August, 1988, I rendered a Decision with respect to a claim between the above parties, a copy of which is (_;tached hereto. . . 2. The Appellant is appealing on the following grounds: That it constitutes a denial of natural justice, in that, he did not receive notice of the claim or service thereof upon which the Order is based, nor did any officer, Director or Registered Agent of the Appellant companies receive such Notice or service of the Statement of Claim thereof. 3. On the attached pages I set out the stated case for the consideration of this Honourable Court. DATED at Digby, Nova Scotia this day of November, 1988. c---@~ AMES L. OUTHOUSE ~----~--- r~ ··-·~--·---_. .. :··""""'~ .ADJUDICATOR .. / \. ., ; .... - .. ' .. : ... ,.;.·. i L ~ __ -----------:
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.