Clarke v. Our Neighbourhood Living Society,

• Jurisdiction: Nova Scotia
• Judge: O'Hara
• Neutral Citation: 2004 NSSM 32
• Citation: 2004 NSSM 32,(2004), 258 N.S.R.(2d) 1 (SmCl),258 NSR(2d) 1,(2004), 258 NSR(2d) 1 (SmCl),258 N.S.R.(2d) 1
• Date: 27 February 2004
• Court: Small Claims Court of Nova Scotia (Canada)

Clarke v. Our Neighbourhood Living Soc. (2004), 258 N.S.R.(2d) 1 (SmCl);

    824 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. AU.023

Arthur Hugh Clarke (claimant) v. Our Neighbourhood Living Society (defendant)

(Claim No: SCCH 213734; 2004 NSSM 32)

Indexed As: Clarke v. Our Neighbourhood Living Society

Nova Scotia Small Claims Court

O'Hara, Adjudicator

April 30, 2004.

Summary:

Clarke sued the defendant in Small Claims Court for unpaid wages for the provision of residential services in respect of a resident named R.F. at the "Gerrard location". An existing claim in the Supreme Court between the same parties related to services at the Orchard Drive location and to residents D.W. and J.S. The defendant's counterclaim in the Small Claims Court related entirely to the Orchard Drive location and to monies allegedly owed by Clarke to the defendant in respect of D.W. and J.S. At issue was whether the situation fell under s. 15 of the Small Claims Court Act, which provided that "The court does not have jurisdiction in respect of the claim where the issues in dispute are already before another court unless that proceeding is withdrawn, abandoned, struck out or transferred".

The Nova Scotia Small Claims Court held that it could not rule on the counterclaim matters without making a ruling on whether the contract to which it related was terminated for proper cause and whether the contract had been renewed. Those issues were squarely before the court in the Supreme Court action. The court concluded that the counterclaim dealt with a separate matter such that the defendant's set-off claims could be severed from the main claim and it ordered that the counterclaim be severed from the proceeding.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 6204.1

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - General - [See Practice - Topic 9768 ].

Practice - Topic 1836

Pleadings - Counterclaim and set-off - Counterclaim - Severability - Circumstances when counterclaim may be severed from original claim - [See Practice - Topic 9768 ].

Practice - Topic 9768

Small claims - Jurisdiction - Bars - Clarke sued the defendant in Small Claims Court for unpaid wages for the provision of residential services in respect of a resident named R.F. at the "Gerrard location" - An existing claim in the Supreme Court between the same parties related to services at the Orchard Drive location and to residents D.W. and J.S. - The defendant's counterclaim in the Small Claims Court related entirely to the Orchard Drive location and to monies allegedly owed by Clarke to the defendant in respect of D.W. and J.S - At issue was whether the situation fell under s. 15 of the Small Claims Court Act, which provided that "The court does not have jurisdiction in respect of the claim where the issues in dispute are already before another court unless that proceeding is withdrawn, abandoned, struck out or transferred" - The Nova Scotia Small Claims Court held that it could not rule on the counterclaim matters without making a ruling on whether the contract to which it related was terminated for proper cause and whether the contract had been renewed - Those issues were squarely before the court in the Supreme Court action - The court concluded that the counterclaim dealt with a separate matter such that the defendant's set-off claims could be severed from the main claim and it ordered that the counterclaim be severed from the proceeding.

Cases Noticed:

Haines, Miller and Associates Inc. v. Foss (1996), 153 N.S.R.(2d) 53; 450 A.P.R. 53 (S.C.), refd to. [para. 18].

Llewellyn (R.) Building Supplies Ltd. v. Nevitt (1987), 80 N.S.R.(2d) 415; 200 A.P.R. 415 (Co. Ct.), refd to. [para. 18].

American Home Assurance Co. et al. v. Brett Pontiac Buick GMC Ltd. et al. (1991), 105 N.S.R.(2d) 425; 284 A.P.R. 425 (T.D.), refd to. [para. 19].

Statutes Noticed:

Small Claims Court Act, R.S.N.S. 1989, c. 430, sect. 15 [para. 2].

Counsel:

None disclosed.

This matter was heard on February 27, 2004, at Halifax, Nova Scotia, before O'Hara, Adjudicator, of the Nova Scotia Small Claims Court, who delivered the following decision on April 30, 2004.