SUPREME COURT OF Nova Scotia
Citation: Inter Lake Reality Ltd. v. Harvey, 2023 NSSC 89
Date: 20230307
Docket: Bwt. No. 514127
Registry: Bridgewater
Between:
Inter Lake Reality Ltd. cob as EXIT Reality Inter Lake
Appellant
v.
Stacey Harvey
Respondent
| Judge: |
The Honourable Justice Diane Rowe |
| Heard: |
January 23, 2023, in Bridgewater, Nova Scotia |
| Counsel: |
Michael Power, K.C., for the Appellant Stacey Harvey, self represented |
By the Court:
[1] This is an appeal of the dismissal of a claim by the Adjudicator, as decided in Small Claims Court on March 8, 2022.
[2] The Appellant, Inter Lake Reality Ltd., seeks that the decision be set aside, with the claim to be remitted back for a hearing before an Adjudicator of the Small Claims Court. The Respondent, Stacey Harvey, submits that as she was able to join the teleconference that the matter was correctly dismissed by the Adjudicator, and that she has considered the matter is at an end.
[3] The factual underpinning of this appeal is concurrent with the facts concerning another teleconference appearance in a matter that was also scheduled to come before Adjudicator Raffi Balmanoukian, at 5:00 pm on March 8, 2022. In that matter, as in this one, the Adjudicator dismissed the claim for want of prosecution as the claimant was unable to join the pre-hearing conference scheduled for that evening.
[4] The appeal in one of the matters has been addressed by the Court in Fancey v. Keni Inc. et al, 2023 NSSC 75.
[5] At issue in this matter, as well, is whether the Adjudicator made an error in law upon a dismissal for want of prosecution in the matter, and whether the inability of the litigant to join the March 8, 2022 teleconference was a breach of natural justice.
Teleconference Appearance before Small Claims Court
[6] At the outset of the appeal, there was a motion for the Court to accept the affidavit of counsel for the litigant, setting out the procedural steps undertaken in the matter that evening to join the call, and subsequently to address the claim.
[7] As in Fancey, supra, the Court considered the test for admission of fresh evidence on appeal.
[8] The admissibility of fresh evidence on an appeal of the Small Claims Court was canvassed by Arnold, J. in Luke v. Chopra, 2019 NSSC 145, in which he referenced the principles set out in R v. Palmer, [1980] 1S.C.R. 759.
[9] Further, in R v. Wolkins, 2005 NSCA 2, Cromwell J.A. (as he was then) addressed the two types of fresh evidence that a party may seek to admit upon appeal; first, evidence regarding an issue decided at trial and second, evidence directed to matters that go to the regularity of the process (Wolkins, supra at paragraph 58).
[10] The evidence went directly to the issue concerning the regularity of the process, and met the Palmer, supra factors. Portions of the affidavit were struck for relevance and hearsay, with the core statements concerning process remaining.
[11] The affiant was cross examined by the Respondent, and the evidence was accepted as credible and reliable concerning attempts to join the correct teleconference “room” during the March 8, 2022 appearances.
[12] As in Fancey, supra, each party dialled into a common 1-800 teleconference line. Then, the Respondent used a unique conference identifier for this matter, while the Appellant’s counsel used the unique conference identifier for another matter scheduled at the same time.
[13] The Adjudicator entered the conference room, discovered the Respondent on the line and the Appellant absent. He then proceeded to dismiss the claim, provisionally, pending an explanation by the litigant.
[14] While the Fancey, supra matter and this appeal are not factually linked, the Court did note that the Summary Report of Finding filed in this matter was largely identical to the Fancey, supra matter.
[15] Further, the evidence accepted by the Court in the fresh evidence motion canvassed the efforts by Mr. Fancey, acting as counsel for the Appellant, to address the issues created by the dismissal of the claim and the difficulties in accessing the teleconference.
[16] The Summary Report of Finding, at paragraph 4, states that the teleconference was “for a pre-hearing conference”. It was not set down for a hearing.
Analysis
A. Error of Law
[17] As in Fancey, supra, Nova Scotia Civil Procedure Rule 82.18, providing for the discretionary power of a justice to dismiss a claim for want of prosecution, was relied upon as informing the dismissal of the claim.
[18] It is apparent that, on consideration of the application of Civil Procedure Rule 82.18, and the common law referenced in Fancey, supra, a motion for dismissal of a claim for want of prosecution falls upon the defendant, rather than on a judge’s own motion.
[19] The motion for dismissal of a claim for want of prosecution by a defendant is the obverse of a motion for summary judgement by a plaintiff. Each motion, when successful, results in a serious prejudice to a litigant, and requires the moving party to support the motion to disentitle a litigant of a claim, or defence, with both law and evidence before a judge may proceed to dismiss.
[20] In this matter, there was no motion seeking dismissal of the claim by the defendant. Further, there was no notice to the claimant that the Adjudicator was considering dismissal of the claim for want of prosecution on the teleconference, as the appearance was for organizational purposes.
[21] Therefore, as in Fancey, supra, I find that the dismissal of the claim for want of prosecution was an error of law. The Adjudicator proceeded on his own motion, without a motion or evidence before him concerning want of prosecution, and then dismissed the claim without a basis in the law.
B. Breach of Natural Justice
[22] As I have determined that the Appellant is successful on the first ground set out in this appeal, I will note only that the remarks in the companion appeal of Fancey, supra on the issue of breach of natural justice are broadly applicable to this appeal.
Decision
[23] The appeal is granted fir the reasons set out above, and the Adjudicator’s order dismissing the claim is set aside. The Court orders that this matter be set down, with the claim to be heard by another Adjudicator of the Small Claims Court.
Rowe, J.