Claim No. SCCH 300753
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Clarke Estate v. Frenken, 2009 NSSM 11
BETWEEN:
THE ESTATE OF BARRY CLARKE, JEFFREY R. CLARKE and KEVIN JOHN CLARKE, Administrators of the Estate of Barry Clarke
Claimant
- and –
BEN FRENKEN
Defendant
ORDER
Adjudicator: David T.R. Parker
Heard: November 6, 2008
Decision: January 12, 2009
Counsel:
Wayne Francis represented the Claimant
Joshua Martin represented the Defendant
This matter was originally commenced in the Supreme Court of Nova Scotia and has subsequently been transferred to the Small Claims Court.
Pleadings
The Claim:
The Claimant stated that on December 29, 2004, the property of the Claimant suffered water damage as a result of a pipe under the upstairs sink freezing and bursting. The Claimant claims this was caused by the negligence of the Defendant which among other things including leaving the property unattended for an extended period of time when the back door was not secure and leaving the heat turned off. The Claimant also pleads the provisions of the Residential Tenancies Act, R.S.N.S. 1989, s. 40, in particular breach of Statutory Condition Number 4.
The Defence:
The Defendant denies negligence and stated that any damage, if any, was caused by the Claimant’s failure to secure the property when he knew or ought to have known that the Defendant was away from the property for an extended period of time and that the downstairs entry was secured as against both uninvited intruders and significant weather conditions. The Defendant denies he was in breach of the lease agreement.
The part of the pleadings related to the Residential Tenancies Act was dropped as this Court does not have primary jurisdiction in that area. The issue of negligence remained and the matter proceeded accordingly.
The original owner of the property has passed on and the action in the Supreme Court was commenced by the owner’s estate and his administrators.
Facts
The evidence presented on behalf of the Claimant was through the adjuster Greg Potten, and a statement of the now deceased Claimant Barry Clarke. The statement was taken by Mr. Potten on Thursday, December 30, 2004.
In his statement, the adjuster led Mr. Clarke to discuss the back door area and Mr. Clarke stated,
“Yup. The back door was opened which caused the cold air to enter the apartment which has caused the break. How the door opened I don’t know. I really don’t know. There is no key. The tenants have gone since the 18th of December. That’s a two week span. I still¼there is no sign of an entry¼”
The adjuster said it did not appear that there was a break in. He stated that “the temperature control for heating was set at, turned off, when I arrived a the property (the day after the leak)” The adjuster stated he was told by the Claimant Clarke that he was notified by an adjoining tenant to his property that water was coming from the Defendant’s leased unit and that when he arrived on the scene, the back door was opened and the pipe under the sink was frozen and water spraying everywhere.
Mr. Potten on cross examination indicated that Mr. Clarke had contacted the Defendant and the Defendant swore up and down that he locked the door. Mr. Potten said Mr. Clarke said he though it might be a possibility there was a break in.
After hearing from the adjuster, the Claimant closed the case and the Defendant’s Counsel moved for a non-suit.
In an earlier decision I commented on the Law related to motion for non-suit.
The Law
I will first layout the law on non‑suit motions.
The case of Walker v. Scotia Career Academy Ltd. 117 N.S.R. (2d) 316 was submitted by Counsel which I thank him for, and deals with a Small Claims Court matter that was appealed to the Supreme Court wherein the Small Claims Court refused a motion for non‑suit. The motion for non‑suit would succeed only if the evidence before the Small Claims Court would show there was a fundamental breach of contract that would lead to a total lack of consideration on the part of the Appellant. The Supreme Court looked at the facts as determined by the Small Claims Court and said those facts did not amount to a fundamental breach and since it had to exist in order for the Respondent (Claimant) to succeed the motion for non‑suit should have been granted.
The case Knox v. Maple Leaf Homes [2002] N.S.J. No. 555, Justice LeBlanc of the Supreme Court of Nova Scotia discusses the parameters of a non‑suit motion.
At paragraph 18, Justice LeBlanc referencing other cases stated,
18 The test on a non‑suit motion is whether the plaintiff has established a prima facie case, or, as it is sometimes described, "whether a jury, properly instructed on the law could, on the facts adduced, find in favour of the plaintiff": MacDonell v. M & M Developments Ltd. 1998 CanLII 4675 (NS C.A.), (1998), 165 N.S.R. (2d) 115 (C.A.). A trial judge considering whether to grant a non‑suit must consider the sufficiency of the evidence, not weigh it or evaluate its believability. The question is whether the inference the plaintiff suggests could be drawn from the evidence if the trier of fact so chose: Sopinka et al., The Law of Evidence in Canada (2d edn.)(Butterworth's, 1999) at para. 5.4. The decision depends "on all the circumstances of the case, including the issues of fact and law raised by the pleadings": J.W. Cowie Engineering Ltd. v. Allen, [1982] N.S.J. No. 39 (S.C.A.D.) at para. 15.
I also refer to Justice Nathanson's decision David v. Halifax (Regional Municipality) [2003] N.S.J. No. 10 where he refers to Cross on evidence (4th Edition), para 66:
"...questions of the sufficiency of evidence are usually raised on a submission that there is no case to answer made by the opponent of the issue. When ruling on such a submission, the judge assumes that the proponent's witnesses are telling the truth in cross‑examination, as well as in their evidence‑in‑chief, and on matters which are unfavourable to the proponent, as well as those which are in his favour. He may rule in favour of the submissions either because the proponent's evidence discloses no case as a matter of law or else because of the weakness of the proponent's evidence." [emphasis added]
The case of Colford vs. Randell et al. (1975) 20 N.S.R. (2d) 195 (S.C.T.D.) sets out the test for a non‑suit motion and has been accepted by the Supreme Court of Nova Scotia in Pino v. Wal‑Mart Canada Inc. [1999] N.S.R. No. 514 at page 1 where Justice Robertson stated:
The defendant has moved for dismissal of the case, pursuant to Rule 30.08, on the ground that upon the facts and the law no case has been made out. The case of Colford & Randall et al (1975), 20 N.S.R. (2d) 195 (S.C.T.D.) sets forth the test:
"In my opinion the changes in this rule were made merely to clarify the right of defence counsel to move for dismissal at the end of the plaintiff's case without electing whether or not to call evidence. I do not believe there was any intention to change the grounds for the motion and I interpret the rule to mean that the motion ... will only be granted if there was no evidence upon which a jury properly instructed could find for the plaintiff. If a prima facie case has been made out then the weight of the evidence is for the Court."
The case of Allied Signal Canada Inc. (c.o.b.) Allied Aerospace Canada v. Atlantic Electronics Ltd. [1998] N.S.J. No. 423. (N.S.S.C.) summarized the law on motions for non‑suit when it references Sopinka and Lederman's views in their test The Laws of Evidence in Civil Cases (Toronto Butterworths, 1974) at pages 521‑522 as follows:
If a plaintiff fails to lead sufficient material evidence, he may be faced at the close of his case by a motion for a non‑suit by the defendant. If such a motion is launched, it is the judge's function to determine whether any facts have been established by the plaintiff from which liability, if it is in issue, may be inferred. It is the jury's duty to say whether, from those facts when submitted to it, liability ought to be inferred. The judge, in performing his function, does not decide whether in fact he believes the evidence. He has to decide whether there is enough evidence, if left uncontradicted, to satisfy a reasonable man. He must conclude whether a reasonable jury could find in the plaintiff's favour if it believed the evidence given in trial up to that point. The judge does not decide whether the jury will accept the evidence, but whether the inference that the plaintiff seeks in his favour could be drawn from the evidence adduced, if the jury chose to accept it. This decision of the judge on the sufficiency of evidence is a question of law; he is not ruling upon the weight or the believability of the evidence...
I have spent some time on this issue as to the law on a motion for non‑suit as the Court is thought by some as the "people's court" and it often involves self‑represented litigants. Often a case involves substantial monetary claims, such as is the case here and my sense is that Claimants are more and more being faced with such motions, particularly by Defendants who are represented by Counsel, as is the case here. I did come across one case where the judge decided not to grant the motion it would appear simply because the Claimant was self‑represented and allowed the matter to proceed. However I am more comfortable with the law as outlined above.
The Court of Appeal in this Province has said:
"We must therefore in addressing the issues keep in mind whether having regard to the law and the facts which were induced in evidence, the judge was correct in concluding there was insufficient evidence, if believed, to satisfy a reasonable person that the case could be resolved in the appellant's favour." ‑ Turner‑Lienaux v. Nova Scotia (Attorney General) [1993] N.S.J. No. 201.
This coupled with the notion that the facts induced in evidence which the Court of Appeal refers to is based on the premise that the Claimant's witnesses are telling the truth. It is not my role at this stage to make a determination of the weight of the evidence but rather has a prima facie case been made out. That is has there been a sufficiency of evidence to show a case in law exists or is the evidence insufficient and discloses no case in law. Further is the evidence just too weak to disclose any case upon which a decision can be made.
What I must consider here is is there sufficient evidence before this Court to make a determination on this issue of negligence. That is to say is there enough evidence if left uncontradicted to show the Defendant was negligent in law. I have not considered whether I believe the evidence nor have I given any weight to the evidence. I mention this last point as I have admitted evidence under the generous provisions of section 28 of the Small Claims Court Act.
28 (1) An adjudicator may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(b) any document or other thing,
relevant to the subject-matter of the proceedings and may act on such evidence, but the adjudicator may exclude anything unduly repetitious.
(2) Nothing is admissible in evidence at a hearing that
(a) would be inadmissible in a court by reason of any privilege under the law of evidence; or
(b) is inadmissible by any statute.
(3) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceedings. R.S., c. 430, s. 28.
What are the facts before this Court that may establish a prima facie case of negligence.
_ The property in question was owned by the deceased.
_ The Defendant and his roommate lived in and were renting the property.
_ There was a water leak in December when a pipe burst under the sink in the apartment rented by the Defendant.
_ The water caused damage to the apartment.
_ The Defendant had left the apartment on Christmas leave from University on December 19th. The leak was noticed by an adjoining tenant on December 29th.
_ The back door was open when the owner arrived at the apartment on December 29th.
_ The owner was aware the apartment would be empty over the Christmas break.
_ A brick propped open the back door.
_ The thermostat in the apartment was turned off.
It is my view that there is a prima facie case of negligence without hearing further from the Defendant. Therefore in this particular set of circumstances I am going to deny the Defendant’s motion. I would ask that the Clerk of the Small Claims Court set the matter down for a continuation of this matter and to advise Counsel accordingly.
Dated at Halifax, on the 19 day of January, 2009
___________________________
David T.R. Parker
Small Claims Court Adjudicator