QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 497 Date: 2009 12 18 Docket: Q. B. G. 211 of 2009 Judicial Centre: Regina BETWEEN: STACEY KARDASH PLAINTIFF (RESPONDENT) and DAN LEONARD AUTO SALES LTD. DEFENDANT (APPELLANT) Appearing: S. McLean for the appellant Stacey Kardash, the respondent, self-represented JUDGMENT KRAUS J. December 18, 2009 [1] The appellant appeals the judgment of the Provincial Court made January 19, 2009, pursuant to s. 39 of The Small Claims Act, 1997, S. S. 1997, c. S-50.11, as am. (the “Act”). [2] The notice of appeal asserts the following grounds: ... a) The Judgment is contrary to the law, the evidence and the weight of evidence. b) The learned Judge erred in allowing the Plaintiffs [sic] claim against DAN LEONARD AUTO SALES LTD. body corporate duly registered in the Province of Saskatchewan when it had agreed to honour its warranty by repairing the transmission provided the Plaintiff KARDASH bring the same to the Defendant to have it repaired. c) The Plaintiff and Defendant agreed as term and condition of the sale of the said vehicle, which had an odometer reading in excess of 300,000 kilometers, that the Defendant would reduce the sale price from $4,995.00 to $3,360.00 provided the Plaintiff accept the vehicle which needed some repair to the steering mechanism. d) Such other grounds as may come to the attention of the appellant upon receipt of the transcript of the evidence given at the trial. [3] An appeal is not trial de novo but an appeal on the record and the findings of fact by the trial judge must be given high degree of appellate deference. Kitzul v. Ungar (1991), 1991 CanLII 7678 (SK QB), 90 Sask. R. 239 (Q.B.), Myrowsky v. Smith, 2005 SKQB 177 (Q.B.) (CanLII) and Bentley v. Humboldt Society for Aid to the Handicapped (2006), 2006 SKQB 125 (CanLII), 281 Sask R. 117 (Q.B.) [4] In my view, the findings of fact by the learned trial judge are reasonably supported by the evidence and there is no palpable and overriding error. Coleman and Wachniak v. Saskatoon Car Town Ltd. (1986), 1986 CanLII 2987 (SK QB), 45 Sask. R. 308 (Q.B.) and Regina (City) v. Kivela (2006), 2006 SKCA 38 (CanLII), 275 Sask. R. 271 (Q.B.) [5] Nor did the learned trial judge make a palpable and overriding error in interpreting the evidence and applying the pertinent provisions of The Consumer Protection Act, S. S. 1996, c. C-30.1 to the facts. Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235 (S.C.C.) and Regina (City) v. Kivela, supra [6] The learned trial judge did not make an error of law based on the standard of correctness. Housen v. Nikolaisen, supra [7] The appeal is dismissed. [8] Pursuant to s. 43 of the Act, costs are awarded to the respondent of $150.00 in lieu of taxation based on Schedule “D” of the tariff of costs, The Queen’s Bench Rules. [9] The respondent shall not take any steps to enforce the judgment within 30 days, to enable the appellant to comply with the judgment (including picking up the vehicle), pursuant to s. 36(1) of the Act. J. G. M. KRAUS
The appellant appeals the judgment of the Provincial Court pursuant to s. 39 of The Small Claims Act, 1997. HELD: The findings of fact by the trial judge are reasonably supported by the evidence and there is no palpable and overriding error. The learned judge did not make an error in law.