D'Arcy v. McCarthy Roofing Ltd.,

• Jurisdiction: Nova Scotia
• Judge: O'Hara
• Neutral Citation: 2015 NSSM 6
• Subject Matter: COURTS,PRACTICE,EVIDENCE
• Date: 06 January 2015
• Court: Small Claims Court of Nova Scotia (Canada)
• Citation: 2015 NSSM 6,(2015), 356 N.S.R.(2d) 280 (SmCl),356 NSR(2d) 280,(2015), 356 NSR(2d) 280 (SmCl),356 N.S.R.(2d) 280

D'Arcy v. McCarthy Roofing Ltd. (2015), 356 N.S.R.(2d) 280 (SmCl);

    1126 A.P.R. 280

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MR.026

Kim Ann D'Arcy (claimant) v. McCarthy Roofing Limited (defendant)

(432504; 2015 NSSM 6)

Indexed As: D'Arcy v. McCarthy Roofing Ltd.

Nova Scotia Small Claims Court

O'Hara, Adjudicator

March 2, 2015.

Summary:

On December 2, 2014, a small claims matter was heard. No written defence had been filed and the defendant did not appear. The Adjudicator allowed the claim, although he reduced the damages by approximately $5,000 (December 8 order). The defendant learned of the order on December 11. On December 15, he instructed counsel, who filed an application to have the judgment set aside on the ground that the defendant had an honest but mistaken belief that the claim was being defended on its behalf by its counsel.

An Adjudicator of the Nova Scotia Small Claims Court dismissed the application. The Adjudicator held that he had no jurisdiction after December 8, in which case the order stood and could not be further considered or challenged at this level. Alternatively, even if he had authority under s. 23 of the Small Claims Act to set aside the December 8 order, the defendant had not met the necessary tests to have that discretion exercised.

Courts - Topic 6204

Provincial courts - Nova Scotia - Small Claims Court - Appeals - [See Courts - Topic 6209 ].

Courts - Topic 6209

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Adjudicator - A small claims matter was heard - No written defence had been filed and the defendant did not appear - The Adjudicator allowed the claim, although he reduced the damages - The defendant applied to have the judgment set aside on the ground that it had an honest but mistaken belief that the claim was being defended on its behalf by its counsel - An Adjudicator of the Nova Scotia Small Claims Court dismissed the application, holding that he lacked jurisdiction - Where a defendant neither filed a defence nor appeared at a hearing, there was no jurisdiction at all in s. 23 of the Small Claims Act to set aside the court's decision - Further, it was not a situation where the parties could somehow attorn or agree to jurisdiction - See paragraphs 39 to 44.

Evidence - Topic 2305

Special modes of proof - Judicial notice - Particular matters - Computers and computer programs - Email - A small claims matter was heard - No written defence had been filed and the defendant did not appear - The Adjudicator allowed the claim, although he reduced the damages - After learning of the order, the defendant promptly instructed counsel to apply to have the judgment set aside on the ground that it had an honest but mistaken belief that the claim was being defended on its behalf by its counsel - An Adjudicator of the Nova Scotia Small Claims Court dismissed the application on the ground that he lacked jurisdiction - Alternatively, the defendant did not have a reasonable excuse for failing to file a defence where the evidence did not convincingly show that a lawyer had been consulted - The defendant's President (McCarthy) testified and acknowledged that he had been served with the notice of claim - He stated that he gave it to his office manager (Mills) with instructions to email it to their lawyer - Mills did not testify - McCarthy testified that Mills emailed it to the lawyer and that Mills later confirmed this to him when questioned - However, there was no email confirmation of this - The court concluded as a fact, partly on taking notice of how email transmissions operated, that no email had been sent on this matter to an external lawyer by Mills or anyone else - The Adjudicator was not satisfied that McCarthy took "ownership" to the minimum required - There was no documentation that he had passed this matter on to Mills and no evidence of follow-up - A minimal degree of due diligence would have seen someone appear on the hearing date on the defendant's behalf - See paragraphs 17 to 38.

Practice - Topic 6187

Judgments and orders - Setting aside judgments - Grounds for - [See Evidence - Topic 2305 ].

Practice - Topic 8991

Appeals - When appeal available - Small claims - [See Courts - Topic 6209 ].

Cases Noticed:

Mitchell (George L.) Electrical v. Rouvalis, [2010] N.S.R.(2d) Uned. 159; 2010 NSSC 203, refd to. [para. 22].

Consumer Impact Marketing Ltd. v. Rzepus, [2003] N.S.R.(2d) Uned. 153; 2003 NSSM 9, refd to. [para. 34].

Stewiacke Home Hardware v. Leighton (2012), 316 N.S.R.(2d) 315; 1002 A.P.R. 315; 2012 NSSC 184, folld. [para. 39].

Statutes Noticed:

Small Claims Court Act, R.S.N.S. 1989, c. 430, sect. 23 [para. 7].

Counsel:

Claimant, Kim D'Arcy;

Katie Archibald, for the defendant.

This application was heard on January 6, 2015, by O'Hara, Adjudicator, of the Nova Scotia Small Claims Court, who delivered the following decision on March 2, 2015.