R. Green, QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 162 Date: 2016 05 05 Docket: QBG 94 of 2015 Judicial Centre: Moose Jaw BETWEEN: SASKATCHEWAN GOVERNMENT INSURANCE APPELLANT (DEFENDANT) and BRYAN SCOTT YOUNG RESPONDENT (PLAINTIFF) Appearing: Donald J. Harmon for the appellant (defendant) Talon Regent, Student-at-law for the respondent (plaintiff) JUDGMENT MEGAW J. MAY 5, 2016 INTRODUCTION [1] mystery has occurred on this file. The transcript from the small claims trial was not filed within the six month period set forth in ss. 39(5) of The Small Claims Act, 1997, SS 1997, S-50.11 [Act]. Why the transcript was not filed is unknown. What is known is the failure did not occur through the fault of the appellant. [2] Because of this non-filing, the respondent argues the appeal must be dismissed based on ss. 39(5) of the Act. The appellant, however, says it did nothing wrong here and it would be an affront to the administration of justice to simply determine the appeal to be dismissed. [3] small claims trial was conducted before Judge Kovatch. decision was rendered on April 30, 2015 and certified judgment on May 28, 2015. The appellant, Saskatchewan Government Insurance [SGI], then served and filed notice of appeal on June 26, 2015. Accompanying that notice of appeal was copy of the request for transcript which the solicitor for the appellant had forwarded to the Provincial Court of Saskatchewan. [4] On the same date as the notice of appeal was filed with the Local Registrar, June 26, 2015, the Local Registrar’s office forwarded correspondence to the Provincial Court advising of the notice of appeal and requesting the material on the trial be forwarded to the Court of Queen’s Bench and that the “tapes” be sent to Transcript Services. copy of that letter was sent to Transcript Services. Presumably the reference to tapes means the recording of the trial proceedings in whatever form they exist. [5] By letter dated August 17, 2015, Transcript Services provided letter to the Local Registrar enclosing the transcript of evidence in the small claims trial. The letter advised Transcript Services was also forwarding two copies of the transcript to the appellant for their use and for forwarding to the respondent. That letter is not copied to either the appellant or the respondent. There is no indication the appellant or the respondent received copy of this correspondence. [6] On February 11, 2016, counsel for the respondent reviewed the file in the Local Registrar’s office and discovered no transcript had been filed. He advised the solicitor for the appellant of the lack of transcript and took the position the appeal was deemed dismissed pursuant to the provisions of ss. 39(5) of the Act. [7] This advice caused flurry of activity. The solicitor for the appellant contacted the Local Registrar’s office to inquire what had gone wrong with the filing of the transcript. In addition, he arranged for the transcript to be actually filed on March 4, 2016. [8] The manager for Transcript Services deposed the August 17, 2015 letter and transcript was sent to the Local Registrar’s office via interoffice mail. She has reviewed the initial letter and saw it contained an incorrect postal code. However, she says that would not have mattered because interoffice mail was being utilized. Further, her office did not receive any notification or return mail to suggest the August 17 letter and transcript had not been delivered. It is understood “interoffice mail” is mail delivery service utilized exclusively by the provincial government. It does not involve Canada Post. [9] The Local Registrar, when advised of the dispute between the parties, directed the matter should be set down for appeal. It was determined, correctly, the resolution of the dispute regarding the filing of the transcript would need to be resolved by the court. The respondent has brought this application to have the appeal dismissed due to the failure to have the transcript placed on the court file in accordance with ss. 39(5) of the Act. [10] The Small Claims Act provides as follows: 39(1) party may appeal judgment made pursuant to this Act to the Court of Queen’s Bench within 30 days after the date of judgment, or within any further time, not exceeding 150 days, that the Court of Queen’s Bench may allow. (2) An appeal is commenced by filing with the local registrar of the Court of Queen’s Bench at the judicial centre nearest to the place where the trial was held: (a) notice of appeal; (b) proof of service of the notice of appeal on the opposite party or the party’s lawyer; (c) copy of the certificate of judgment; and (d) copy of the request for transcript of the proceedings. (3) notice of appeal must set out the grounds of the appeal, and: (a) where the appeal is by defendant who did not serve and file notice of counterclaim before trial, must set out briefly the details of the defendant’s defence and of any counterclaim; and (b) where the appeal is by third party, must set out briefly the details of the third party’s defence. (4) Subject to subsection (9), the appellant shall file with the local registrar at the judicial centre mentioned in subsection (2) transcript of the evidence heard by the judge. (5) Where the transcript mentioned in subsection (4) is not filed within six months after the day on which the notice of appeal is filed, the appeal is deemed to be dismissed unless an order extending the time for filing the transcript is made before the expiration of the six-month period by judge of the Court of Queen’s Bench on an application by the appellant (6) If judge of the Court of Queen’s Bench extends the time for filing the transcript pursuant to subsection (5) and the transcript is not filed before the expiration of that extended period, the appeal is deemed to be dismissed. (7) On receipt of the transcript, the local registrar of the Court of Queen’s Bench shall enter the appeal for hearing at the judicial centre where the appeal is filed. (8) When an appeal is filed pursuant to this section, execution of the judgment and all other proceedings in the action are stayed until the appeal is determined unless judge or judge of the Court of Queen’s Bench orders otherwise. (9) Where judge of the Court of Queen’s Bench is satisfied that transcript cannot be provided for the appeal, the judge, on application by the appellant, may: (a) order that the matter be returned to the court for new trial; or (b) make any other order that the judge considers appropriate. 47 No proceedings pursuant to this Act are to be considered invalid for informality if there has been substantial compliance with this Act. [11] The respondent rests his argument on the provisions of ss. 39(5) combined with the direction of this court in Saskatchewan Kodokan Black Belt Association Inc. Bergey, 1999 CanLII 12695 (CanLII) (QB) [Saskatchewan Kodokan] and Polar Air Auto Ltd. Kevin Tarabawka, QB 153/02 (August 27, 2002, unreported). [12] The appellant argues it made no error here and should not be denied its right of appeal by virtue of problem, quite beyond its control. It argues the letter of August 17, 2015 should determine the transcript to have been filed, or, alternatively that s. 47 provides the authority to now allow the transcript to be filed. [13] I have determined to allow the transcript to be filed and to allow the appeal to proceed. The starting point is to attempt to interpret the statutory provision set forth in ss. 39(5). The Court of Appeal in Ballantyne Saskatchewan Government Insurance, 2015 SKCA 38 (CanLII), 457 Sask 254 has recently provided guidance with respect to proper statutory interpretation: 19 The leading case with respect to statutory interpretation is the Supreme Court of Canada's decision in Re Rizzo Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] SCR 27 [Rizzo Shoes]. number of principles set out in that case are applicable to the case at hand, namely: 1. The words of an Act are to be read in their context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, its objects, and the intention of the legislature (See: Rizzo Shoes at para. 87). (See also: Saskatchewan Government Insurance Speir, 2009 SKCA 73 (CanLII) at para 20, 331 Sask 250; and Acton Rural Municipality of Britannia, No. 502, 2012 SKCA 127 (CanLII) at paras 16-17, [2013] WWR 213 [Acton]). 2. The legislature does not intend to produce absurd consequences. An interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent or if it is incompatible with other provisions or with the object of the legislative enactment (See: Rizzo Shoes at para. 27). 3. Any statute characterized as conferring benefits must be interpreted in broad and generous manner (See: Rizzo Shoes at para. 21). This principle is enshrined in s. 10 of The Interpretation Act, 1995, SS 1995, c. I-11.2 (See: Acton at paras. 16-18). 4. Any doubt arising from difficulties of language should be resolved in favour of the claimant (See: Rizzo Shoes at para. 36). 20 In Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) at 28-29, Ruth Sullivan sets out three propositions that apply when interpreting the plain meaning of statutory provision: 1. It is presumed that the ordinary meaning of legislative text is the meaning intended by the legislature. In the absence of reason to reject it, the ordinary meaning prevails. 2. Even if the ordinary meaning is plain, courts must take into account the full range of relevant contextual considerations including purpose, related provisions in the same and other Acts, legislative drafting conventions, presumptions of legislative intent, absurdities to be avoided and the like. 3. In light of these considerations, the court may adopt an interpretation that modifies or departs from the ordinary meaning, provided the interpretation adopted is plausible and the reasons for adopting it are sufficient to justify the departure from ordinary meaning. 21 In sum, in interpreting s. 123(1) of the Act, the ordinary meaning of the words of that provision must be read in the context of the Act as whole and in the context of Part VIII in particular. It is also important to keep in mind the purpose of the Act and the legislature's intention in enacting the provision. The provision is benefit conferring and accordingly must be given broad and purposive interpretation. It must also be interpreted in manner that will not lead to absurdities. With this background in mind, turn to the Commission's decision in this case. [14] The purpose of the small claims court is to provide litigants with cost effective, efficient mechanism by which disputes, limited in dollar value, may be resolved. In many respects, the Small Claims Court, and the decisions it renders, may be viewed as being on the front lines of the public’s access to justice. As part of that ongoing mandate to ensure justice is delivered effectively and efficiently, the process of appeal must also be effective and efficient. This ensures neither party is prejudiced or benefited by delay in the processing of the appeal. [15] The provisions of s. 39 of the Act are designed to cause the appellant to perfect its appeal. It provides for the manner in which an appeal is commenced; what must be set forth in the notice of appeal; and, how to perfect the appeal by the filing of transcript of the evidence from the trial. Subsection mandates the filing of the transcript but is made specifically subject to subsection 9. Subsection imposes the sanction for the failure to file but, it is referring to the transcript from ss. 4. [16] It appears for an appellant to “file the transcript” there is no action required beyond the request to Transcript Services. That agency then prepares the transcript and files it with the court. Accordingly, and practically speaking, the appellant plays no role in the physical filing of the transcript. Rather, the appellant must ensure the notice of appeal is properly served and filed and requisition is made for the transcript to be prepared and filed. [17] In the Saskatchewan Kodokan decision, the facts presented to MacLeod J. need to be carefully reviewed. There, the appellant had failed to both file the notice of appeal with the Local Registrar and, further, had failed to provide requisition for the transcript: [3] The respondent, Saskatchewan Kodokan Black Belt Association Inc. (the "Association") appealed the judgment but neglected to requisition the transcript of evidence presented at the trial. That transcript is to be filed with the local registrar within six months after the day on which the notice of appeal was filed (ss. 39(4) and 39(5)). [6] letter dated September 15, 1998, from the office of the transcript co-ordinator is as follows: Local Registrar Court of Queen's Bench 2425 Victoria Avenue Court House REGINA, SK S4P 3V7 Dear Sir: Re: Sask. Kodokan Black Belt Assoc. versus Kimberly Bergey Small Claims Hearing APPEALED Our File: 98.1011 Volumes and II Further to your request dated August 04, 1998, enclosed please find the transcript of the above matter, along with our invoice, #11046. Please forward your payment directly to the address listed on the invoice. In addition, we have not received any notification from the Local Registrar that you have filed Notice of Appeal. Once our office receives such notification, the transcripts will be distributed and you will be billed for such service. [18] The letter referred to in para. appeared to MacLeod J. to have been misaddressed and was actually sent to the solicitor for the appellant. At least, it appears this was the logical conclusion to draw from the material before him. [19] In the case before me, the appellant has done everything required of it pursuant to the Act. The respondent is not suggesting anything more could or should have been done by the appellant. Indeed, the respondent fairly recognizes the end result of his submission is an unfortunate result because neither party could be said to be “at fault” for what took place. [20] Should the appellant have done things differently? For example, should the appellant have been expected to follow up with the Local Registrar’s office to see if the transcript had, in fact, been filed? This would require conclusion the appellant must go behind both the practice of Transcript Services and the correspondence from Transcript Services. Alternatively, should there be requirement the appellant check, as matter of course, to ensure Transcript Services has not only done that which they obligated to do and that the interoffice mail system has not malfunctioned? answer both of these queries in the negative. [21] While the appellant did not see the letter from Transcript Services dated August 17, 2015, do not conclude it is required of party to follow up on the actions of the public service. The clear intent of the provisions of s. 39 is to compel the appellant to do all that it is required to do to advance the appeal. This necessarily means it cannot sit on its hands and allow delay to build without any consequence. Rather, by putting the onus on the appellant to do what it is required to do, the Legislature is assured of speedy small claims process. This achieves one of the principle goals of the entire small claims system of administering justice. [22] However, in those cases where flaw occurs through no fault of the appellant, the legislation provides this Court with the ability to exercise discretionary remedy to fix that flaw and ensure justice is done as between the parties. This discretionary remedy is set forth in ss. 39(9). That subsection provides for remedy in the event transcript cannot be provided for the appeal. This is part of s. 39 and therefore must refer both to the absence of transcript and the failure to file within the six month provision, through no fault of the appellant. In that case, the court may make “any other order that the judge considers appropriate.” [23] To allow an appeal to be struck without the appellant having done anything incorrectly leads to an absurd result. Were it to be allowed, the appellant would lose right of appeal, and judicial determination of the claim, without fault. In my view, the administration of justice cannot allow such an absurd result. [24] Interpreting the legislation in manner which requires the appellant to take all required steps and then allowing for court intervention when matters arise beyond the control of the parties is consistent with intention of the Act and is an interpretation allowed by the wording used in the section. Furthermore, it avoids an absurd and unintended consequence. [25] The Act in ss. 39(9) provides wide discretion to justice, always acting judicially, to do that which is required to be done to ensure justice is achieved between the parties. am satisfied the transcript could not be provided within the six month period. However, this occurred through no fault of the appellant and accordingly the right of appeal should be preserved to allow the matter to be heard on its merits. In the result, I therefore determine that pursuant to ss. 39(9) of the Act, the transcript may now be filed and this appeal shall proceed to be argued and determined on its merits. The setting of the appeal date is confirmed. [26] There will be no order as to costs in the circumstances. J. M. T. MEGAW
HELD: The application was dismissed. The court held that pursuant to s. 39(9), it ordered that the transcript should be allowed to be filed and the appeal to proceed. The appellant had done everything required of it pursuant to the Act. The provisions of s. 39 did not require the appellant to follow up with the local registrar’s office to see if the transcript had been filed. In a case such as this, s. 39(9) of the Act provides the court with the ability to exercise its discretion to remedy the problem and ensure that justice is achieved where a transcript could not be filed within the six-month period.