Fenelon v. Ford Motor Company of Canada et al Date:, 2014 BCPC 287

Citation: Fenelon v. Ford Motor Company of Canada et al Date: 20141020 2014 BCPC 0287 File No: S70896 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: JOCELYN FENELON CLAIMANT AND: FORD MOTOR COMPANY OF CANADA LIMITED/FORD DU CANADA LIMITEE and DAMS FORD LINCOLN SALES LTD. DEFENDANTS RULING OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Appearing in person: J. Fenelon

Counsel for Ford Motor Company : I. Giroday Counsel for Dams Ford : P. Stibbs Place of Hearing: Surrey , B.C. Dates of Hearing: May 6, August 20, September 17, 2014 Date of Judgment: October 20, 2014 [ 1 ] THE COURT : This is an application jointly by the defendants pursuant to Rule 20 seeking a recovery of fees and expenses.

Rule 20(5) of the Small Claims Court Rules states: A judge may order a party to pay the other party up to ten percent of the amount claimed, or the value of the claim or counterclaim if the party made a claim, counterclaim or reply and proceeded through trial with no reasonable basis of success. In addition, Rule 20(6): A judge may order a party or witness whose conduct causes another party or witness to incur expenses to pay all or part of those expenses. [ 2 ] I will say from the outset as well that it is important that the claimant be aware that legal fees are not recoverable in Small Claims actions.

It is intended to essentially be a people's court. That by all means does not preclude the ability of counsel to appear. Everyone is entitled in the Province of British Columbia to represent his or herself and/or to be represented by counsel. [ 3 ] I have heard the submissions from Mr. Giroday, who has also produced jointly with Dams Ford counsel, Ms. Stibbs, a letter dated September 22nd, 2014 from Ms. Stibbs addressed to the claimant and a letter dated September 22nd, 2014 from counsel for Ford. Mr.

Giroday, in the terms of his application, read into the court record the contents of that letter and it would not be prudent to repeat that. Suffice to say that I do agree with letters from both defendants' counsel. [ 4 ] There is nothing in the claim that supports the contents of the claim that has been steadfastly believed and advanced from the beginning by the claimant. This is a frivolous, vexatious and inappropriate claim. [ 5 ] Mr.

Fenelon as the claimant was offered repeated extensions as I have articulated in the no evidence motion and even offered repeatedly in exhibited letters from 2011 and 2012 requests by counsel for Ford to inspect the vehicle and all parts, and yet Mr. Fenelon absolutely refused to respond or to make that vehicle available for inspection. [ 6 ] The fire occurred in 2009. It is now October 20th, 2014, some five years plus post-purchase of the vehicle and the claimant has had an abundance of time and even free of charge, through Ford Canada, the ability to have a report prepared.

He has repeatedly, steadfastly refused to do so and is convinced that relying upon other court decisions and e-mail data and Internet data would prove his claim. I have decided otherwise. [ 7 ] The claimant brought a frivolous notice of motion on September 17th, 2014, thus, necessitating the attendance of two counsel to respond to that and it bears repeating that while I appreciate Mr.

Giroday was personally affronted by the wording of that notice of motion on September 17th, 2014, took it somewhat to heart, I am reminded, all of us who have been or are lawyers that there are regrettably files from time to time with people who are self-represented who do put into print or verbalize inflammatory accusations and, as I assured Mr. Giroday on September 17th and assure him today, that is regrettable that he and Ms. Stibbs were on the receiving end of that motion on September 17th, 2014. It is no reflection on either of them personally as counsel. [ 8 ] I believe that Mr.

Fenelon has had significant opportunity to produce reports and he has repeatedly failed to do so, and chosen not to do so. The court has been abundantly patient with the claimant and provided him a wide berth in which to advance his claim. He commenced his action almost two years to the limitation date without any report. The matter proceeded to a settlement conference and without addressing, nor am I privy to the contents of what occurred within there, there were no reports produced. He was even afforded by court order an extension to add a party and amend his claim.

A further extension was granted to the claimant, as I have articulated, by Judge Miller to produce reports and documents and he still failed to produce anything to support his claim. [ 9 ] This is the fourth court appearance before me and at the end of it a no evidence motion abundantly succeeded. Even after hearing submissions from the parties as to a Rule 20 order, the claimant still said he was confident he had evidence to move the file to the Supreme Court which would allow him to prove the source of the fire. That is not what an application is to move a file to Supreme Court. Mr.

Fenelon assured me he has legal counsel, and legal counsel, I am confident, would have advised him of that, as to what the threshold is and what would be required to transfer a file to the Supreme Court.

There was nothing even in his verbal application today to support any reports, any documentation regarding the source of the fire in his vehicle to support the quantum that he was claiming or the source of recovery against one or both of the defendants. [ 10 ] Legal fees are not recoverable in a Small Claims Court action; however, when a court action proceeds through this court process on a number of court appearances that continues to be frivolous and vexatious and without merit, despite judges and this court providing a claimant extensions and opportunities to produce reports, an extension of deadlines to provide documentation, and repeated offers in writing from 2011 and 2012 free of charge to have a vehicle inspected, this is a misuse of the court process.

There is no expert report, no

documentation, no evidence as to the value; no opinion or medical documentation to support a portion of the claim for emotional, medical pain and suffering, and psychological harm. [ 11 ] I have carefully considered the amount that the defendants are jointly seeking in accordance with Rule 20(5). I believe that this file is abundantly appropriate that a Rule 20(5) order be made and in doing so there is a wealth of court decisions addressing that. I have considered Arned and Litman , a 1995 decision of the Vancouver Registry of the Provincial Court of British Columbia. I have considered GPM Distributing Ltd. v.

Wong , a 1995 decision of the Quebec Provincial Court. I have considered Yeh v. Ford Credit Canada , a 1995 decision of this Provincial Court which was allowed, in whole or in part, by the British Columbia Supreme Court in 1996. I have considered Chen v. Asia Phone Book , a 1996 decision of The Honourable Judge Werier of the Provincial Court of British Columbia. I have considered Logan v. Progressive Air Service Ltd. , a 1997 decision of The Honourable Judge Shupe of the Provincial Court of British Columbia. I have considered Teng v.

The Insurance Corporation of British Columbia by Her Honour, The Honourable Judge Geddes of the Provincial Court of British Columbia. I have considered Botha and Issaic , a 2001 decision of the Provincial Court of British Columbia, the Vancouver Registry of The Honourable Judge Romilly. I have considered Judge Werier's decision of Sharif v. Vancouver Economic Development Society , a 2005 decision of the British Columbia Provincial Court. I have considered Wittinger v. Nasal Property , a 2007 decision of the now Associate Judge Phillips in the Provincial Court of British Columbia. I have considered Rust v.

BCS Investigation , a 2011 decision of the British Columbia Provincial Court. I have considered the 2013 decision out of the Vancouver Registry of Woo v. 537699 of The Honourable Judge Raymond and I have considered the provided case by counsel to the court of Fillion v. Jeeves , a 1994 decision of 100 Mile Registry of the British Columbia Provincial Court. [ 12 ] While I appreciate that everyone is entitled to their day in court and everyone is entitled to be heard, I am convinced that this is a very frivolous claim. I am convinced, and the facts support it, that Mr.

Fenelon has been afforded opportunity by many judges throughout this process of extension, additional time and, in fact, even a delay of a no evidence motion to allow him to present his claim, and all taking into consideration that he is self-represented and yet he proceeded to continue with his claim. [ 13 ] I am not convinced, however, by the submissions of defence counsel that each should be entitled to a penalty up to the sum of ten percent of the value of the claim, that being each defendant awarded $2,526.63.

For reasons in which the way the defence counsel chose to proceed in attending court, preparing for court, it is clear to me that counsel for Ford Motor Company of Canada bore the bulk of the preparation, exhibited the documentation and conducted not only the cross-examination but took the lead in initiating no evidence motions and responding to the motion.

While I am mindful that counsel for Dams Ford certainly was required to attend, it is clear to me that counsel for Ford Motor Company of Canada bore the bulk of this and took the lead and, thus, it would not be fair that each defendant receive an equal sum awarded under Rule 20(5). [ 14 ] After taking all of this into consideration, I am satisfied that it is appropriate under Rule 20(5) to order that the claimant pay, as set out in the Rules , up to ten percent of the amount claimed or the value of the claim or counterclaim if the party made a claim, counterclaim or reply and proceeded through trial with no reasonable basis of success.

As I stated, ten percent of that claim is $2,526.63. There have been repeated court appearances over and above trial attendance that clearly were not necessary. [ 15 ] After taking all of this into consideration, pursuant to Rule 20(5) I am going to order that the claimant pay the sum of $2,500 to Ford Motor Company of Canada Limited and pursuant to Rule 20(5) that the claimant pay the sum of $1,000 to Dams Ford. Those funds are to be payable within 60 days of today's date. [ 16 ] These are my reasons. (RULING CONCLUDED)