nan Q.B. A.D. 1998 No. 1878 J.C.S. IN THE QUEEN‘S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: CHAD KOCHAN and STANLEY CHUBACK and TROY CHUBACK, o/a SPORTS PAGE BAR GRILL RESPONDENTS None of the parties were represented by counsel JUDGMENT BAYNTON J. March 19, 1999 [1] The appellant/plaintiff‘s claim in Small Claims Court was dismissed by the learned Provincial Court judge for want of prosecution. The small claims summons was returnable on August 6, 1998 and the respondents/defendants appeared in court on that date in response to it. The appellant/plaintiff appeared in court to present his claim on August 7, 1998, the day following the day it had been dismissed. The appellant/plaintiff was aware that the date on the summons was August 6. But he appeared in accordance with the particulars of a note previously given to him by court staff indicating that the trial of his claim would take place on August 7, 1998. It appears the misunderstanding occurred because the date and court room number were inverted on the note. The respondents/defendants declined to consent to an order directing a new trial even if the order awarded costs to them. [2] A plaintiff should not be deprived of his day in court because of an institutional scheduling error which arose through no fault on the plaintiff‘s part. defendant in the circumstances should consent to an order directing new trial so that the claim can be presented and its merits determined by the court. plaintiff in such circumstances has no recourse but to appeal to this court and incur the attendant expense to obtain the relief to which he is entitled. [3] Although the facts of the appeal before me are somewhat different, the principles set out in Horosko v. Huber (1993), 1993 CanLII 8893 (SK QB), 108 Sask. R. 303 (Q.B.) are applicable. [4] The appeal is allowed and a new trial is ordered in Small Claims Court. There is no order as to costs.
The appellant's claim was dismissed for want of prosecution. The date and courtroom number for the trial on the note given to him by court staff were inverted and he appeared in Small Claims Court the day following its dismissal. The defendants declined to consent to an order directing a new trial. HELD: The appeal was allowed and a new trial ordered in Small Claims Court without order as to costs. A plaintiff should not be deprived of a trial because of an institutional scheduling error. The principles set out in Horosko v. Huber were applicable.