Grosvenor v. Whalen

Grosvenor v. Whalen Court Supreme Court Date 2002-01-16 Citation 2002 NSSC 18 Docket SH 174065 A Judge/Registrar/Adjudicator Gruchy, David W. (Honourable Justice) Document Type Decision Relations Library Sheet - Grosvenor v. Whalen - 2002 NSSC 18 - 2002-01-16 - Library Sheet Decision Content Date: 02/01/16 Docket: S.H. No. 174065A IN THE SUPREME COURT OF NOVA SCOTIA (On appeal from the Small Claims Court of Nova Scotia) [Cite as: Grosvenor v. Whalen, 2002 NSSC 018] BETWEEN: MICHELLE GROSVENOR APPELLANT - and - JEAN WHALEN RESPONDENT D E C I S I O N HEARD BEFORE: The Honourable Justice David W. Gruchy PLACE HEARD: Halifax, Nova Scotia DATE HEARD: January 11, 2002 DECISION: January 16, 2002 (Orally) WRITTEN RELEASE: January 22, 2002 COUNSEL: Mark V. Rieksts for Michelle Grosvenor Jean Whalen, personally GRUCHY, J. (Orally): [1] This is an appeal from a decision of a learned adjudicator of the Small Claims Court of Nova Scotia, which was rendered on June 14, 2001. The adjudicator, subsequently, on October 23, 2001, filed his "summary report of findings". The learned adjudicator dismissed the action for want of prosecution on the basis of delay. The summary report filed by the learned adjudicator sets forth a chronology of the various delays. There is dispute between the parties as to what were the causes for the delays but they agreed in submission before me that in some particulars the learned adjudicator's chronology was inaccurate. There was, however, disagreement as to the causes for the adjournments. There is no question that there were many of them, but it does not seem to me to be helpful simply to count the numbers of adjournments and attempt to assign correlative fault. [2] The trial of the matter had in fact commenced by the time of the eventual dismissal of the action. The action was commenced on February 9, 1999, and the defendant filed her statement of defence on March 16, 1999. Following commencement there were several consent adjournments, some at the request of the appellant and others at the request of the respondent. The trial eventually commenced on May 25, 2000. Evidence was called at that time, but the hearing was adjourned so as to allow the appellant an opportunity to call expert evidence. There then followed a further series of delays, some on consent, some contested, some as a result of the respondent's unavailability due to an injury in a car accident, some as a result of administrative foul ups in the Small Claims Court administration and some as a result of the unavailability of the learned adjudicator. [3] On November 8, 2000, after various attempts to set a date for the conclusion of the trial the learned adjudicator wrote to counsel for the appellant and to the respondent. He said: I have had a number of discussions with Ms. Pellow with respect to the scheduling issues arising in this matter. As I had made it clear all along, I have very little time in the coming months to address it. More to the point, I am now seized with jurisdiction and as such, no other adjudicator can now step into the breach. My understanding was of a tentative hearing scheduled for this coming Thursday (November 9th). That date is not suitable to Mr. Reiksts. I was next given to understand that Ms. Whalen had available dates on November 16th, 20th, 21st and 23rd. Unfortunately, I am not available on November 16th and Mr. Reiksts appears not to be available on either of November 20th, 21st or 23rd. The next possible available date was November 29th. Unfortunately, not all of Ms. Whalen's witnesses are available on that date. In the circumstances, it would appear that we have little choice but to abandon the matter until well into the new year. I am now fully involved in trial preparation for a three month civil trial which is scheduled to start on January 8th and run until March 27th. I accordingly suggest that we all turn our attentions to our late April, 2001 schedules with a view to finding one additional day. Once selected, I intend to start with any of the Claimant's remaining witnesses, move on to any defence motions, move from there to any required defence witnesses, any rebuttal witnesses and, finally, to summations. [4] The adjudicator had set a potential trial date some four months later. In May, 2001, the learned adjudicator requested a scheduling of the adjourned hearing "not later than the week of June 25". The hearing eventually resumed on the evening of June 14. [5] In the meantime, it appeared to me during submissions, the respondent approached the learned adjudicator directly and asked if he would be prepared to consider an application to dismiss for want of prosecution. I underline that the appellant was not present during that conversation. The learned adjudicator apparently agreed that he would consider it. [6] On June 14 the trial was convened for conclusion, but the adjudicator heard the application to dismiss without hearing evidence then available. He dismissed the action for want of prosecution in an oral decision, later supplemented by the "summary report of findings". [7] I have to remark on the content and tone of the summary report. [8] Section 32(4) of the Small Claims Court Act, R.S.N.S. 1989, c.430, as amended reads: Transmission of report (4) Upon receipt of a copy of the notice of appeal, the adjudicator shall, within thirty days, transmit to the prothonotary a summary report of the findings of law and fact made in the case on appeal, including the basis of any findings raised in the notice of appeal and any interpretation of documents made by the adjudicator, and a copy of any written reasons for decision. [9] In view of the fact that the Small Claims Court is not a court of record the purpose for the section is clear. The grounds for an appeal from an adjudication are limited to jurisdictional error, error of law or failure to follow the requirements of natural justice. In order to exercise the Supreme Court's jurisdiction written reasons are essential. But in my view the summary should not take the form of an apologia, as this decision appears to be. Rather, it should be an objective recitation of findings of fact, of credibility when appropriate and an application of the adjudicator's understanding of the law relative to the issues. [10] In his decision, the learned adjudicator correctly concluded that Civil Procedure Rule 37.12 was not applicable in an application for dismissal in the Small Claims Court. Rather, he appears to have addressed the matter by reference to the common law, although he did not expressly state that. He held, in part, as follows: 20. The Claimant's counsel argued, fundamentally, that a series of either consensual or ordered adjournments cannot add up to a fatal delay. I declined to accept that view. I held that the essential purpose of a small claims court was to effect justice as between the parties before it on the basis of uncomplicated procedure and limited time lines. I held that the procedures employed by the Claimant were inconsistent with this objective and that the delays resulting from the Claimant's inability to move her case forward resulted in prejudice to the Defendant. [11] The learned adjudicator did not specify the prejudice suffered by the respondent. [12] The adjudicator further concluded: ... that the delay could not help but be an impingement on natural justice and contrary to the purpose provisions of Section 2 of the Small Claims Court Act. [13] In the adjudication of an application for dismissal for want of prosecution a two-step test is to be applied. Cooper, J.A. in Robert McAlpine Ltd. v. Martell (1978), 86 D.L.R. (3d) 481 (N.S.S.C.,A.D.) at p.484: I now direct my attention to the principles which should govern the exercise of a Judge's discretion in deciding whether or not an application for dismissal of an action for want of prosecution should be granted. There must first have been inordinate and inexcusable delay on the part of the plaintiff or his lawyers and, secondly, as put by Russell, L.J., in William C. Parker Ltd. v. F.J. Ham & Son Ltd., [1972] 3 All E.R. 1051, at p. 1052: ... that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants ... [14] Justice Bateman applied the above in Savoie v. Fagan et al. (1998), 165 N.S.R. (2d) 276 (C.A.) and in addition referred to cases to the same effect: Moir v. Landry (1991), 104 N.S.R. (2d) 281 (A.D.). In addition, I refer to Farrar v. McMullen, [1971] 1 O.R. 709 (Ont. C.A.). [15] As the headnote in Robert McAlpine Ltd. v. Martell accurately summarized: To dismiss an action for want of prosecution there must have been inordinate and inexcusable delay on the part of the plaintiff, and such delay must give rise to a substantial risk that it is not possible to have a fair trial, or be such as is likely to have caused serious prejudice to the defendant. In the present case, there had been inordinate and inexcusable delay which had not been explained and which raised in itself a presumption of prejudice to the defendant. [16] I also refer to: Saulnier v. Dartmouth Fuels Ltd. (1991), 106 N.S.R. (2d) 425 (A.D.); Canada (Attorney General) v. Foundation Company of Canada Ltd. et al. (1990), 99 N.S.R. (2d) 327 (A.D.) and Ross v. Canada (Attorney General) et al. (1999), 180 N.S.R. (2d) 266 (C.A.). [17] It is clear that a defendant who applies to dismiss an action for want of prosecution has the onus to show (firstly) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers and (secondly) that the delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants. [18] As Justice Hallett said in Moir v. Landry (above) at p.284: [11] A plaintiff has a right to a day in Court and should not lightly be deprived of that right. Therefore, it is only in extreme cases of inordinate and inexcusable delay that a Court should presume serious prejudice to the defendant in the absence of evidence to support such a finding. [19] The learned adjudicator, as I have set forth above, found that delay was inconsistent with the provisions of s.2 of the Small Claims Court Act. While it is clear that there was, perhaps, an inordinate delay I am not convinced that the delay was inexcusable. At least a considerable portion of the delay should not have been attributed to the appellant. [20] In addition, the conclusion by the learned adjudicator that "... the delays resulting from the claimant's inability to move her case forward resulted in prejudice to the defendant" does not appear to have been based upon any specific facts. At the time of the dismissal, upon the directions of the learned adjudicator, the appellant was standing ready to complete the trial as, presumably, was the respondent. In such circumstances I am unable to conclude that there was any evidence of prejudice to the respondent. [21] The conclusion of the learned adjudicator that the delay was "an impingement on natural justice and contrary to the purpose provisions of s. 2 of the Small Claims Court Act" appears, rather, to be an impingement upon the right of the appellant to a fair trial of the issues. [22] While the delays were undoubtedly and understandably frustrating to the adjudicator the sum total of the delays was not such that would give rise to the presumption of prejudice. The delays addressed in the various cases to which I have referred above were much more extreme than that considered herein. Even though an appropriate time frame of delay in a Small Claims Court setting may be somewhat less than that considered appropriate in a Supreme Court setting the delay herein was not such as to give rise to a conclusion of prejudice. In the absence of the invocation of such a presumption and in the absence of specific evidence of prejudice, the conclusion of the learned adjudicator that there was such prejudice appears to be unfounded. [23] Accordingly, I overrule the decision of the adjudicator and order a new trial by the Small Claims Court before a different adjudicator. [24] In addition, the order with respect to costs is hereby vacated and costs of this appeal and of any subsequent trial will be in the cause. J.