SummationSmall Clams<strong>No</strong> MoreIvividly remember arrivingat Stewart MacKeen& Covert for my firstday of articles in June 1987.The first thing I rememberfrom that day, was that a filethat had been assigned to meby senior partner David R.Chipman, Q.C. (as JusticeChipman was then known).You can imagine mytrepidation as I reviewed thematter for approximately anhour before concluding thatit was really a ResidentialTenancy claim. With kneesknocking and mouth dry, I went to speak to Mr. Chipman.Kevin A. MacDonaldCrowe Dillon RobinsonHow to diplomatically raise theissue with him? My concernwas unfounded as he was mostgracious in quickly agreeingwith me. I will never forget the discussion that ensued. Among otherthings, I asked how I should refer to the adjudicator. He wisely observedthat “a court, is a court, is a court” and therefore it would be appropriatefor me to refer to the presiding adjudicator as “Your Honour”.A simple observation, but it helped me considerably; not onlyduring my appearances in Small Claims Court (SCC), but also byunderscoring that the goal of advocacy is to persuade. Knowing yourjudge (or audience) is a universal truth not just confined to the “big”case, or, for that matter, court work.It used to be that a typical night in Small Claims Court would start at7 pm and often not finish until 12:00 am. The claims were many andvaried, but in those days, most were brought forward by individualsfor things as simple as dry cleaning complaints, damage to goods,return of engagement rings, and the like. The filing was $10, and assuch, not a barrier. Claims in the range of $100 were common, andthe use of lawyers was the exception, not the norm.A recent discussion with trusted veteran Halifax SCC Clerk, TanyaPellow, confirmed my suspicion that the sharp decrease in personal andtruly “small” claims corresponded with the increase in the filing fees.A testament to the fact that a lawyer was not necessary in SCC wasbrought home to me in the early 1990s. It wasn’t funny at the timebut is now. I had a defence I was handling for an insurer, and throughan error on my part, missed the hearing.I was extremely surprised but pleased to receive a decision noting wehad won. I suspected the fact that our insured was a nun probablyhelped. You can imagine my embarrassment when I called the insurer(an insurance company) to “fess up”. They were most gracious andrather than damaging our relationship, my confession (consideringtheir comment that they wouldn’t have known any different had Iremained silent) actually strengthened it.When I contacted my insured (the nun) to pass along my apologies,the plot thickened. She told me that she had explained to theadjudicator that I was not present, but was reassured when he said “Iknow Mr. MacDonald and I don’t think his not being here will makeany difference.” (meaning of course, that a lawyer being present wasnot really necessary)This is not the only humorous mistake I’ve made. I recall sending aletter to a client in which I failed to note that the “re” line read Small“Clams” Court. My client and I had a great chuckle over this, as itseemed to work on so many levels. Of course, this mis-descriptionwas more apt when the jurisdiction was $3,000. At $<strong>25</strong>,000 one ishard pressed to say that is “small clams” anymore. $<strong>25</strong>,000 is a lot ofclams by anyone’s measure.You see some very interesting claims in SCC that would take days ifheard in Supreme Court, and yet are compressed into a night. Alongwith a raft of dog cases I have run into, there are many other bizarrestories from SCC.I once had to sue a horse in SCC (well, really the owner, but it makesa better “war story” this way). Thanks to having accidentally stumbledacross the “Fences and Impounding of Animals Act” while researchingthe issue, I was able to establish that the fence in question did notmeet the required standard and therefore the loss caused to my clientby the errant Nelly was compensable.This April’s increase to $<strong>25</strong>,000 has triggered judicial comment andhas been the matter of considerable discussion among practisinglawyers; neither has it gone unnoticed by the public. The Provincehas struck a Committee (Small Claims Court Option DevelopmentCommittee) to wrestle with the balancing act between the monetaryjurisdiction and the procedure that is available.It is difficult to know where SCC will end up. It is obviously a courtthat, since 1981, has greatly served <strong>No</strong>va <strong>Scotia</strong>ns. Some would saythat the SCC has come of age and perhaps others would say it’s gottentoo big for its britches. Time will tell what comes of our “little, bigcourt”. In the meantime, more clams anyone?38 The <strong>Society</strong> Record
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