Kemp v. Prescesky, (2006) 244 N.S.R.(2d) 67 (SC)

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 21, 2006
• Jurisdiction: Nova Scotia
• Citations: (2006), 244 N.S.R.(2d) 67 (SC);2006 NSSC 122

Kemp v. Prescesky (2006), 244 N.S.R.(2d) 67 (SC);

    774 A.P.R. 67

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. AP.040

Douglas J. Kemp/Country Stoves & Sunrooms Ltd. (appellant) v. Michael Prescesky and Lorene Prescesky (respondents)

(S.K. 260730; 2006 NSSC 122)

Indexed As: Kemp v. Prescesky

Nova Scotia Supreme Court

Warner, J.

April 18, 2006.

Summary:

The claimants sued the defendant in the Small Claims Court and served him with the claim two weeks before the hearing date. The defendant did not file a defence within 10 days of service as required by s. 5(1) of the regulations under the Small Claims Act. Nor did he appear at the hearing. The Small Claims Court Adjudicator heard the claimants' evidence and entered judgment in their favour. The defendant appealed.

The Nova Scotia Supreme Court allowed the appeal, set aside the Adjudicator's decision and ordered a new hearing.

Courts - Topic 6210

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Natural justice - The claimants sued the defendant in the Small Claims Court and served him with the claim two weeks before the hearing date - The defendant did not file a defence within 10 days of service as required by s. 5(1) of the regulations under the Small Claims Act - Nor did he appear at the hearing - The Small Claims Court Adjudicator heard the claimants' evidence and entered judgment in their favour - The defendant appealed - The Nova Scotia Supreme Court allowed the appeal, set aside the Adjudicator's decision and ordered a new hearing - The court held that the requirements for natural justice in the Small Claims Court had increased with the increase in the court's monetary jurisdiction to $25,000 - Civil Procedure Rule 12.06 provided a remedy for any injustice that might result when deadlines were missed in the Supreme Court and the court held that the same principle of fairness should apply in the Small Claims Court - The defendant had an arguable case regarding the quantum of damages, a reasonable excuse for the default and there was no prejudice to the claimants.

Practice - Topic 6197

Judgments and orders - Setting aside default judgments (incl. noting in default) - Grounds - [See Courts - Topic 6210 ].

Practice - Topic 9755.2

Small claims - Limitation period - [See Courts - Topic 6210 ].

Practice - Topic 9766.3

Small claims - Hearings - Failure to appear - [See Courts - Topic 6210 ].

Cases Noticed:

Chediac v. Desmond (1996), 148 N.S.R.(2d) 198; 429 A.P.R. 198 (C.A.), refd to. [para. 10].

Rhyno v. Ideal Concrete Ltd. (1992), 118 N.S.R.(2d) 118; 327 A.P.R. 118 (Co. Ct.), refd to. [para. 10].

Shannon v. Forsyth et al. (1995), 145 N.S.R.(2d) 118; 418 A.P.R. 118 (S.C.), refd to. [para. 10].

Ives v. Dewar, 1948 CarswellNS 24 (C.A.), refd to. [para. 15].

Temple v. Riley (2001), 191 N.S.R.(2d) 87; 596 A.P.R. 87; 2001 NSCA 36, refd to. [para. 16].

Logic Alliance Inc. v. Jentree Canada Inc. (2005), 229 N.S.R.(2d) 127; 725 A.P.R. 127; 2005 NSSC 2, refd to. [para. 17].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 12.06 [para. 14].

Authors and Works Noticed:

Canadian Bar Association, Report of the Task Force on Court Reform in Canada (1991), pp. 31, 46 [para. 11].

Counsel:

Appellant, self-represented;

Respondents, self-represented.

This appeal was heard on March 21, 2006 at Kentville, Nova Scotia, before Warner, J., of the Nova Scotia Supreme Court, who delivered the following decision on April 18, 2006.