Nasone v. Weinberg, Indian Brook Adventures Inc.

Nasone v. Weinberg, Indian Brook Adventures Inc. Court Supreme Court Date 2021-05-04 Citation 2021 NSSC 275 Docket Syd No. 503169 Judge/Registrar/Adjudicator Murray, Patrick J. (Honourable Justice) Document Type Decision Relations See also - Nasone v. Weinberg Indian Brook Adventures Inc. - 2021 NSSC 276 - 2021-04-07 - Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Nasone v. Weinberg, Indian Brook Adventures Inc., 2021 NSSC 275 Date: 20210504 Docket: Syd No. 503169 Registry: Sydney Between: Elodie Nasone Appellant v. Paul Weinberg, Indian Brook Adventures Inc. Respondent Judge: The Honourable Justice Patrick J. Murray Heard: March 9, 2021, in Sydney, Nova Scotia Written Decision: May 4, 2021 Counsel: Elodie Nasone Paul Weinberg, Indian Brook Adventures Inc. By the Court: Introduction [1] This is an Appeal by the Appellant, Elodie Nasone, of Sydney Mines, N.S., from an Order of the Small Claims Court issued on December 3, 2020. [2] The Respondent is Paul Weinberg, Indian Brook Adventures Inc. (dba Cabot Shores Wilderness Resort) of Englishtown, N.S. [3] The decision of the Small Claims Court Adjudicator awarded the sum of $2,425.03 to the Appellant, Ms. Nasone. She had claimed the total amount of $8,179.65 under terms of an Employment Contract. As Claimant in the Small Claims Court the Appellant alleged a breach of that contract by the Respondent. [4] The Adjudicator’s Order read as follows: On November 25, 2020 a telephone hearing was held and the following Order was made by the Adjudicator: I find for the Claimant and order the Defendant to pay to the Claimant the following: 1. Reimbursement of the flight from France to Sydney $1,235.12 2. Reimbursement of the Travel Health Insurance $990.56 3. Court Filing Fee $199.35 Total $2425.03 The Order was filed with the Small Claims Court on December 3, 2020 and was sent out to both parties on December 4, 2020. Grounds of Appeal [5] The grounds stated in the Notice Of Appeal: (a) a jurisdictional error; and (b) an error of law. [6] The particulars of the those grounds read: Appellant appeals in part, the decision of the Adjudicator where he found that there was no breach of the contract. Particulars (a) The Adjudicator stated he was unable to consider Labor Standard Code, that it was not his jurisdiction. But under the Small Claims Court Act, there is no mention of unconsideration (sic) of this. (b) The Adjudicator applied the wrong legal principle to the facts, misinterpreted the laws (Labour and IRPR). Position of the Parties at the Hearing in Small Claims Court [7] The Claimant (Appellant) gave personal testimony attesting to the terms of the employment contract and that the claim was for payment of funds and general damages in the amount of $8,179.65. Her testimony was that the basis of the claim was a breach of the employment contract. [8] The Defendant (Respondent) gave personal testimony in regard to the terms of the contract and a restatement of the defence filed. The Defence filed on the Notice of Claim was that there was no breach of the employment contract. Further, he alleged, the original contract was amended with the mutual consent of both parties. The Audio Recording (Exhibit #23) [9] One of the grounds of appeal argued by the Appellant involves an evidentiary ruling by the learned Adjudicator. He ruled as inadmissible an audio recording tendered by the Appellant at the trial. His reasons were two fold. In the stated case the Adjudicator said the recording was made: 1) without the knowledge; and 2) without the consent of the party being recorded. The reasons given in the summary of findings read as follows: All of the exhibits were considered as the Claimant entered each one and testified as to their relevance to the issue. Some exhibits were denied or disregarded by the Adjudicator as they were not part of the claim by the Defendant and related to a third person whose permission had not been sought or the person was not available to be cross examined. These were Exhibit 5 (not really determinative of any term or breach of the contract), 6 (not a letter that was sent to the claimant), 10 (duplicate), 20 (information belonging to a 3rd party and not part of the claim), 22 (information only), 23 (USB of secretly recorded conversation between the Claimant and the Defendant which the Defendant had no knowledge of being recorded and permission was not granted by the Defendant to make this recording) and 25 (not really relevant to the claim). [10] The Appellant has argued on appeal that it was “unfair and unethical” for the Adjudicator to “disregard” this conversation. She had requested permission to do so by letter and was advised by the Clerk that the Adjudicator agreed as long as the Defendant was able to play the USB, which she said she confirmed. She submits the recording was legal “as long as you are a party to the conversation’, citing certain provisions of the Criminal Code. The Appellant therefore states that the Adjudicator erred in “removing from consideration”, Exhibit 23. The Respondents Position - Exhibit 23 [11] The Respondent says the Appellant’s claim that Exhibit #23, a USB of the audio recording was admissible is not clearly set out in the notice of Appeal, but instead was included as submissions in her brief. [12] Further, the Respondent submits, the Appellant did not provide a transcript of the “secretly recorded conversation”. The Respondent says, it was well within the Adjudicator’s discretion to make the ruling to exclude this evidence, and that the Adjudicator properly exercised his discretion. [13] The Adjudicator summarized in his findings the hearing process as follows: Before the hearing was started the Claimant had requested that they be allowed to submit additional voice/audio evidence and the Adjudicator responded back that they could so long as the audio/voice evidence was transcribed and that confirmation was done to ensure that the Defendant was able to play/listen to the audio/voice recording on an USB. [14] Having reviewed the law on this issue, I am satisfied, with due respect, that the Adjudicator was in error with respect to the legal principles he applied to the admissibility of the recording. The law does not require that both parties to a “surreptitious recording”, consent to the recording, or even be aware it is being made. [15] In Evans v. Teamsters Local Union No.31, 2006 YKCA 14, the Yukon Court of Appeal held that a surreptitious recording of a phone conversation in an employment law case should have been considered by the trial judge (see YKCA at paras 8, 31, 37-38; affirmed by majority of SCC without specific comment on this point.) [16] Also in Cook v. Kang, 2020 BCSC 575, at para 51 , the Court stated: [51] I agree with plaintiff’s counsel that it is not illegal for a person to surreptitiously record a private conversation to which that person is a party and therefore consents to the recording as contemplated in s. 184(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46. There are indeed a host of cases in which surreptitious audio recordings made by non-state agents have been admitted and relied upon as evidence in civil and proceedings... [17] A key finding made by the Adjudicator, in deciding the merits of the claim, is that the parties made a “significant modification” to the terms of their labour/employment agreement with respect to the number of hours per week agreed upon between the parties. The Adjudicator’s finding reads: The Adjudicator made the following determinations: that the original contract was a bare and had minimal terms, basically a promise of employment as a restaurant manager, the promise of 40 per week at $15.00 per hour. The Adjudicator read into the contract the statutory requirements of transportation coverage and health insurance. No real breach of the contract from April to September. In September there was a significant modification of the contract, with a higher rate of pay and the original promise of 40 hours a week was changed to an honest expectation of trying to provide this but not able to guarantee it. [18] The Appellant has submitted three (3) excerpts from this recording (of a meeting between the employer and the Appellant on September 27, 2019) that she believes are relevant to this finding. The Respondent submits there was other evidence to support the Adjudicator’s finding such as meetings and discussions other than that recorded on this single audio tape. Further the Respondent states that modification of the terms is exactly what was discussed during the meeting on September 27, 2019. As such, the Respondent says, the Adjudicator’s decision should be accepted as final on this Appeal. [19] The hearing of this evidence is something which may or may not have made a difference in the overall decision of the Adjudicator. Nonetheless, this evidence, on its face, was relevant to an issue at trial. I conclude that the Adjudicator was required to determine whether the recordings were admissible on the basis of the principles of relevance and admissibility, including the discretion over admission of evidence provided by section 28 of the Act. I am not satisfied that the Adjudicator adequately considered whether the recordings should be admitted, given his refusal to admit the evidence on the stated grounds that the recording was done without the Defendant's knowledge or consent, with no further analysis. The implication of the Adjudicator's reasons was that these considerations alone mandated that the evidence be excluded, as a matter of law. As discussed above, I conclude that it was an error of law to refuse to admit them on these grounds, standing alone. (To be clear, this is not to say that those factors are necessarily irrelevant to the broader considerations of relevance and admissibility, or that the evidence is necessarily admissible. I am not pre-judging the question of admissibility, only directing that correct legal principles be applied.) [20] It is often the case on Appeal that, if an error of law is made, the matter is remitted back to a different Adjudicator for further consideration. [21] This was a rather complex case, in the Small Claims Court involving a large number of exhibits. I take guidance from the provision of the Small Claims Court Act which states in s. 2 that the purpose of the Court is to allow parties to “adjudicate their claims informally and inexpensively”. This was a narrow issue of law, involving a single piece of evidence. Requiring the entire matter to be heard by a different Adjudicator would not be just and inexpensive or serve the ends of justice. [22] In addition, there is authority in the caselaw for this disposition of the appeal. In Markus v. Ryan MacIntosh Landscaping & Construction Services, 2015 NSSC 295, Justice Hood held at paragraphs 15 and 17 as follows: [15] As a result of that error of law, Joseph Markus was denied the opportunity to give evidence about the cost to remedy the deficiencies to which the adjudicator referred. [17] In the result, the appeal is allowed and the issue of setoff only be remitted to the same adjudicator to determine the setoff to be allowed for the deficiencies to which I have referred above. [23] The matter is remitted back to the Adjudicator, Mr. Young, for further consideration, after applying the correct legal principles to admissibility of the audio tape. Depending on what the Adjudicator ultimately decides in this matter there may be a further avenue of appeal available to each of the Appellant and the Respondent. [24] A brief word in regard to the failure of the Appellant to specifically include the admissibility of the recording issue in the grounds of appeal, I find that rejection of the Appeal for those reasons would not be in keeping with the intent and purpose of the Act as set out in section 2. The Respondent was aware of this ground as is evident by his brief in reply (see paragraph 6). Error in Jurisdiction [25] With respect to the jurisdiction of the Small Claims Court, in matters involving the Labour Standards Code, I am satisfied the Appellant can seek a remedy in the Small Claims Court but cannot also choose to proceed under regime of the Labour Standards Code. The Claimant must choose one forum or the other but not both (see Fredericks v. 2753014 Canada Inc., 2008 NSSC 377, at paras. 40 - 43). [26] In this case, the Appellant chose to adjudicate in Small Claims Court and, therefore, must accept that the Court has jurisdiction, having herself, originated her claim in that Court, as opposed to filing a complaint under the legislative regime of the Labour Standards Code. The Adjudicator therefore correctly assumed jurisdiction, which is a separate issue from whether or not he made an error of law by denying a party the benefit of statutory provisions under legislation pertaining to the case. (Brett Motors Leasing Ltd. v. Welsford, (1999), 181 N.S.R. (2d) 76) [27] The Appeal is allowed in part and remitted back to the Adjudicator on the narrow point of the admissibility of the audio recording as provided herein. Murray, J.