McKay v. Erickson, 2015 SKCA 12

• Judge: Klebuc, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 28, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 12;(2015), 451 Sask.R. 262 (CA)

McKay v. Erickson (2015), 451 Sask.R. 262 (CA);

    628 W.A.C. 262

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. FE.006

Vincent McKay (prospective appellant) v. Mervin Erickson (prospective respondent)

(CACV2657; 2015 SKCA 12)

Indexed As: McKay v. Erickson

Saskatchewan Court of Appeal

Klebuc, J.A.

February 9, 2015.

Summary:

The plaintiff's action related to a minor automobile collision. The Small Claims judge dismissed the action. The plaintiff appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at [2014] Sask.R. TBEd. DE.103, dismissed the appeal. The plaintiff applied for leave to appeal.

The Saskatchewan Court of Appeal, per Klebuc, J.A., dismissed the application.

Courts - Topic 555

Judges - Powers - To intervene in examination of witnesses - The Small Claims judge dismissed the plaintiff's action - The plaintiff's appeal was dismissed - He sought leave to appeal, asserting that the appeal judge had erred in interpreting the evidence, had failed to consider the whole of the plaintiff's written submissions and had erred in not finding that the Small Claims trial was unfair due to the intervention in examination by the Small Claims judge - The Saskatchewan Court of Appeal, per Klebuc, J.A., dismissed the application - Under s. 45 of the Small Claims Act, the right to appeal was limited to a question of law - Section 47 limited the extent to which an appellate court was entitled to take procedural shortcomings into account - These limitations were imposed to advance the Act's objectives - As there was some evidence on which the trial judge could have based his decision, it could not be said that the appeal judge had erred in law concerning a finding of fact - The trial judge's intervention was of concern because his comprehensive examination reflected his perception of how the examination should be conducted - The trial judge had not merely asked supplementary questions - However, given s. 47 and the Act's objectives, the appeal judge had not erred in holding that the trial judge's questioning had not rendered the trial unfair.

Practice - Topic 5010

Conduct of trial - General principles - Power of judge to intervene - [See Courts - Topic 555 ].

Practice - Topic 9762.1

Small claims - Appeals - Scope of review - [See Courts - Topic 555 ].

Practice - Topic 9762.2

Small claims - Appeals - Procedure (incl. leave to appeal) - [See Courts - Topic 555 ].

Counsel:

Vincent McKay, for himself;

Mervin Erickson, for himself.

This application was heard in Chambers on January 28, 2015, by Klebuc, J.A., of the Saskatchewan Court of Appeal, who delivered the following reasons for judgment on February 9, 2015.