Cite as: Clarke v. P.F. Collier & Son Ltd., 1993 NSSC 253 .1993 IN THE SUPREME COURT OF BETWEEN: BRYANT CLARKE - P. F. COLLIER HEARD: At Digby, Nova Scotia, on the 8th day of December, A.D. 1993 BEFORE: The Honourable Justice Charles E. Haliburton SUBJECT: Small Claims Court Appeal DECISION: The 21st day of December, COUNSEL: Bryant Clarke, the Appellant, for himself Respondent was unrepresented ·D E CIS ION S.D. No. 0754 NOVA SCOTIA APPELLANT and & SON LIMITED RESPONDENT A.D. 1993 o N A P PEA L
HALIBURTON, J. This appeal was dismissed in a brief oral decision at the time of the hearing. These reasons are supplementary. appeal was against a Default Claims Court. As a result of recent changes in the Small Claims Court Act and the Regulations approved under that Act, it is now possible to obtain a Default Judgment where the Defendant fails to file a defence within 10 days. the Adjudicator was obliged to appointed in the "claim" and no Order could be made against the Defendant except after such a hearing was held. The misunderstanding and/or misinterpretation of applicable law and procedure by the Appellant/Defendant requires some comment. The Appellant had had previous Small Claims Court and was familiar with the which required a hearing. When this claim was made against him, he anticipated appearing on the date fixed for the purpose of defending the claim. He was arrived, the Sheriff arrived under the judgment which had already been entered. APPEAL NOT PERFECTED Upon_ an examination of there was no Affidavit of Service in relation to the Notice of Appeal. Upon an inquiry, the Appellant advised that the Notice of Appeal had been served by facsimile machine and he produced a The Judgment entered in the Small Before the recent amendments, hold a hearing on the date the experience with the former procedure surprised when, before that date with an Execution Order issued the file, I determined that
- receipt indicating service within the 30 day period prescribed. A facsimile transmission is not one of the methods authorized for service under the Act and the Regulations. Section 21(3) and Regulation 17(4) such a method of service were acceptable, the Appellant would be obliged to file an Affidavit in Proof of Service within days of the appeal period. follows: 17(3) The appellant shall file proof of service on the respondent with the prothonotary not later than days after the last day for filing of appeal. The Appellant failed to comply with this requirement. The appeal, not having been perfected, it might been dismissed without further comment. however, I have concluded jurisdiction in any event. APPEAL WAS PREMATURE The Small Claims Court is now an autonomous, statutory court. Section 3 of the Small Claims Court Act establishes it as a separate "court of law and of record". inherent right to control its own processes. Adjudicators must comply with governing its ?peration. If they do so, then no superior court may interfere, except in accordance established by the Legislature. exhaust all the remedies available to him in the Small Claims Court. Before doing so, he clearly has no right of appeal. 2 A reference to makes this clear. Even if seven Regulation 17(3) provides as seven the notice of have In the circumstances, that this Court was without As such, it has an The Court and its the spirit and/or the law wi th the appeal process The Appellant here did not
•• - 3 - " The provision which deals with the granting of default judgments by the Small Claims providing the authority to enter 23(2) provides as follows: 23(2) Where a defendant against whom an order has been made pursuant to subsection (1) appears, upon notice to the claimant, before the adjudicator who made the order and the adjudicator is satisfied that (a) the defendant has failing to file a defence within the time required; and ( b) the defendant appeared without unreasonable delay order, the adjudicator may set aside claim down for hearing. The words of this section provide a full answer to Mr. Clarke on this appeal. The jurisdiction of Court will not have been exhausted application in that Court to aside. To that extent, a Default Judgment is not final until an application under Section 23(2) has been dismissed. is a substantive reason for dismissing the appeal. FORMS 1 & 2 By way of further Appellant would not have misunderstood the process if Forms and #2 had been more precise. been taken in the drafting DEFENDANT(S)", some obvious ambiguities remain. Court is Section 23. After default judgments, Section a reasonable excuse for before the adjudicator after learning of the the order and set the the Small Claims until he has made an have the Default Judgment set This, then, comment, I would add that the #1 In spite of the care that has the two-colour notice, "TO THE While it says,
- "To dispute the claim you must file a it fails to emphasize that there will continues, "If you do not appear shown to defend the claim .. the Court may you" . The proof of the effectiveness of the wording will be proven if Mr. Clarke's problem turns out to be unique. because he was already familiar with the either failed to read the Notice misunderstood it. My own suggestion of the words which might be used to give the Defendant effective process would be: If you fail to file a defence within 10 days, may be made against you before the hearing date. if you do file a defence hearing on the date shown to defend the claim (or make your counter-clairl), the against you. Digby, Nova Scotia December 2lst~ 1993 4 Defence within 10 days", be no hearing when it at the hearing on the date make an Order against Perhaps former procedure, he with sufficient care, or notice of the default an Order Even but do not appear at the Court may make an Order J.
TO: Mrs. Cyndi Gennette Deputy Prothonotary of the Supreme Court P.O. Box 668
Digby, Nova Scotia
BOV lAO
Mr. Bryant A. Clarke P.O. Box 1884
Digby, Nova Scotia
BOV lAO
P. F. Collier & Son Limited
Suite 203
3845 Dutch Village Road
Halifax, Nova Scotia
B3L 4H9
FORM 8
19 93 IN THE SUPREME COURT OF NOVA SCOTIA BRYANT CLARKE - and P. F. COLLIER & SON LIMITED TO: The Prothonotary Summary report of findings by James L. Outhouse, Q.C. Adjudicator of the Small Claims Court of Nova Scotia. 1. On the 13th day of october the above named parties, a copy of which is attached hereto. 2. On the attached pages, I set out for the consideration of this Honourable Court a summary report of the findings of law and fact made in the case on appeal including the basis of any fmdings raised in the Notice of Appeal and any interpretation of documents made by me, and a copy of the written reasons for my decision, if any. DATED at --D ig b y - -------- ,this 19th 19 93 ------- .. S. D. No. 0754 S CCD No. 251 7 APPEllANT RESPONDENT , an ,19 93 I adjudicated a claim between day of --N --o vember ------------ SUPREME couru of N.S. NOV 24 19~1 DIGBY, N. S.
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