IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Bidart v. MacLeod, 2005 NSSC 100
Date: 20050504
Docket: SC SN NO. 235392
SC NO. 243069
Registry: Sydney
Between:
Stephen Bidart c/o Atlantic Recreation & Marine
Appellant
v.
Harold John MacLeod
Respondent
Judge: The Honourable Justice Frank Edwards
Heard: May 2, in Sydney, Nova Scotia
Counsel: Stephen Bidart, in person
Harold John MacLeod, in person
By the Court:
[1] This is an Appeal from a decision by an Adjudicator of the Small Claims Court.
[2] The Claimant had alleged negligence on the part of the Appellant/Defendant regarding the repair of the Claimant’s boat. The claim was for the difference between the Appellant’s estimated cost of repair ($1,325.00 plus tax) and the actual cost ($4,492.92). In allowing the claim in part, the Adjudicator found that the Appellant’s work “dealing with the trim sender and the shift cable was ineffective in remedying the problem”. He therefore set the Claimant’s damages at $1,000.00 plus costs.
[3] The hearing commenced as scheduled on January 10, 2005. Both parties were self-represented. The Claimant testified on his own behalf. The Appellant then presented his defence which consisted of the evidence of his mechanic and his service writer in addition to his own evidence. (Both parties agreed before me that the foregoing had occurred.) At this point the Adjudicator adjourned the matter in order to give the Claimant an opportunity to call expert evidence. In his Summary Report dated March 18, 2005, the Adjudicator states:
“... I adjourned the hearing on January 10, 2005, to allow the Claimant an opportunity to call expert testimony as to the effectiveness of the repairs conducted by the Defendant. I told the Claimant that without this evidence, his allegations as to the Defendant’s negligence were unsupported. I required the expert testimony to determine whether the Defendant’s repairs were ineffective and unnecessary.”
[4] The hearing resumed on February 14, 2005. At that time, the Claimant called two experts, Mr. Mackley and Mr. King. The Adjudicator subsequently rendered his decision.
[5] The main ground of appeal relates to the adjournment: “The fact is that the case should have been thrown out on January 10....” In effect, the Appellant is alleging procedural unfairness which, if substantiated, would amount to a denial of natural justice. Procedural unfairness is measured against a standard of correctness. While the Adjudicator can control the process of the hearing, he is required to be procedurally fair.
[6] Procedural fairness must be assessed in the context of the Small Claims Court Act which provides that claims are to be “... adjudicated informally and inexpensively but in accordance with established principles of law and natural justice.” (S.2) Even with informality and somewhat relaxed rules of evidence, the Adjudicator is required at all times to maintain the fairness and the appearance of fairness of the hearing.
[7] In this case, I have no doubt that the Adjudicator was acting with the best of intentions. I am satisfied that his intention was to afford the Claimant as full an opportunity as possible to establish his claim. The problem is that, by so doing, the Adjudicator was inadvertently unfair to the Appellant.
[8] The Appellant appeared with his witnesses on January 10, 2005 prepared to meet the claim against him. He heard the Claimant’s evidence and called his evidence in response. Subject to the Claimant’s limited right to call evidence in rebuttal, that should have been the end of the matter. Instead, the Adjudicator effectively allowed the Claimant to re-open his case and have a second chance at establishing his claim.
[9] I recognize that the Adjudicator has a duty to assist unrepresented parties, particularly where a legal or procedural issue of which the party may not be aware is relevant [see Clayton v. Earthcraft Landscape (2002), 210 NSR (2d) 101 (NSSC)]. Here, the unrepresented Claimant was pursuing a claim of negligence, a complex legal concept. If the Adjudicator felt the need to point out the desirability of expert evidence in support of the claim (perhaps while explaining the burden of proof), the time to have done so would have been before the Appellant/Defendant was called upon to present his evidence. In that way, the Appellant would have known exactly the case he had to meet when he called his witnesses. Aside from the inconvenience, the Appellant would not have had much of an argument in opposition to the adjournment.
[10] I also have some difficulty with the advice given by the Adjudicator: “that (the Claimant’s) allegations as to the Defendant’s negligence were unsupported. I required the expert testimony to determine whether the Defendant’s repairs were ineffective and unnecessary. It would have been better if the Adjudicator had not gone beyond telling the Claimant that he had the option to call expert evidence to support his claim and, if he wished to do so, the Adjudicator would consider an adjournment. The Claimant could thus have made his own informed decision about whether or not he would call further evidence and the Appellant could have been heard on the adjournment issue. By giving the advice he did, the Adjudicator may have given the impression that he was assisting the Claimant in the presentation of his case rather than giving some neutral advice. I acknowledge that the difference may be more apparent than real but the perception of the losing party must always be considered. The appearance of fairness can sometimes be as important as fairness itself.
[11] Finally, Adjudicators should keep in mind that this Court does not have a transcript of the Small Claims Court hearing. Consequently, the quality of a party’s right of appeal is dependent upon the content of the Summary Report and the written decision. Here, the Adjudicator provided a three page written decision. Unfortunately, the reason(s) why the Adjudicator found the Appellant’s work ineffective is not clear from the decision. Specifically, having found the Claimant’s evidence inadequate on January 10, he does not say what, if any, expert evidence he relied upon to come to this conclusion. A party is entitled to know why he lost.
[12] The foregoing should not be interpreted as a plea for lengthy, written decisions. Brief reasons for key findings will usually suffice and will at the same time be consistent with the philosophy of the Act.
[13] I am allowing the appeal and ordering a new hearing before a different Adjudicator.
Order accordingly.
J.