Forsythe v. Her Majesty the Queen, 2020 BCPC 235

Citation: Forsythe v. Her Majesty the Queen 2020 BCPC 235 Date: 20201209 File No: 18162 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Civil Division) BETWEEN: MABEL FORSYTHE AND MELANIE FORSYTHE CLAIMANTS AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.J. GOVE Appearing on their own behalf: Mabel Forsythe and Melanie Forsythe Counsel for the Defendant: A. Glen Counsel for the Defendant: R. Watmough Place of Hearing: Smithers , B.C. Dates of Hearing: November 2, 3, 4, 2020 Date of Judgment: December 9, 2020 INTRODUCTION

INTRODUCTION [ 1 ] The Claimants, Mabel Forsythe, and her daughter Melanie Forsythe, are suing Her Majesty the Queen (British Columbia) for what they allege was the negligence of the Court Registry staff in Smithers, BC. For the alleged negligence they seek damages for money that they say they should have received at an earlier trial for products (mostly moccasins) that they produced and were sold by the ‘Ksan Association, a consignee. They had attempted to appeal the decision of the earlier trial but had their appeal dismissed. They blame the Court Registry staff for this.

They also seek an order to enforce an award for the shame that they endured by the way that the Court Registry staff treated them. They quantify the claim as: Damages for moccasins $25,866.71 and damages for shame $8,946.29 for a total of $34,813.00. [ 2 ] British Columbia seeks a dismissal of the claim on the basis that: (1) the Claimants have failed to advance a claim that is not an abuse of process; (2) court registry staff have the benefit of a statutory immunity when acting in good faith; and (3) there are strong policy reasons not to recognize a private law duty of care.

BACKGROUND [ 3 ] Mabel Forsythe is a hereditary chief of the Wet’suwet’en Nation. She prefers to be referred to by her name Timberwolf. She is known as a skilled artisan making moose hide moccasins amongst other craft items. For many years she sold her products through the ‘Ksan Association gift shop, much of it on consignment.

Melanie Forsythe is Timberwolf’s daughter and also produced crafts which she sold at ‘Ksan. [ 4 ] ‘Ksan leased property on Gitanmaax Band land for a number of purposes, including running the gift shop. ‘Ksan was in arrears paying Timberwolf and Melanie Forsythe (the Claimants Forsythes) for their products that they had sold. ‘Ksan was also in arrears on its rent to Gitanmaax. After a period of time, Gitanmaax decided to cancel the lease and take over the gift shop. An issue arose as to the accounting for money owed to the Forsythes for products that ‘Ksan sold but for which the Forsythes had not been paid.

When Gitanmaax took over the ‘Ksan gift shop there was inventory and monies that also need to be accounted for. This led to a law suit by the Forsythes. They sued ‘Ksan and Gitanmaax. ‘Ksan did not reply and eventually was dissolved as a society. Gitanmaax defended the suit. After a trial in 2015, The Honourable Judge Sudeyko, awarded damages against both ‘Ksan and Gitanmaax to the benefit of the Forsythes. [ 5 ] The Sudeyko judgment was filed with the Smithers Registry on February 9, 2016, (the “Trial Decision”).

It was not until January 18, 2017, that it was mailed to the Forsythes and they became aware of the decision. The judgment held in favour of the Forsythes and ordered ‘Ksan and Gitanmaax to pay monies to them in compensation for merchandise that had not been paid for. [ 6 ] The Forsythes decided to appeal the Trial Decision claiming that The Honourable Judge Sudeyko had misunderstood the evidence when calculating what they were owed. They say that it should have been greater than the amount ordered. They attempted to commence proceedings in Supreme Court of British Columbia at the Smithers Registry.

Melanie Forsythe testified that they consulted with “about 30 lawyer’s overtime”, however, it is clear that she was pursuing the actions on behalf of herself and her mother as self- litigants. They commenced or attempted to commence a number of actions in Supreme Court. They were told by Court Registry staff and by Supreme Court Justices through the Assistant District Registrar that they either had not named the defendants correctly or had commenced the wrong proceeding.

They did not want to include Gitanmaax in the Supreme Court proceedings and were told that they must as they were seeking an order on appeal that would affect the band. They tried to proceed by Notice of Claim, Petition and Notice of Appeal before finally filing a Notice of Application for Direction on Appeal. Melanie Forsythe attended the Smithers Registry numerous times and prepared all of the documents herself.

Court Registry staff testified that she came to the Registry approximately 100 times. [ 7 ] Because they were considerably out of time to appeal, they brought an application to extend time to file the appeal. This application came before Supreme Court Master Baker on June 14, 2017. He determined that the Forsythes had, “… practically speaking, no likelihood of success on an appeal. As a consequence, I have to dismiss the application to extend the time”. They did not take further steps in either the Supreme Court or the Court of Appeal.

This effectively ended their appeal. [ 8 ] The Forsythes were very upset by this decision. It was particularly offensive to them that the Gitanmaax was awarded costs for their lawyer to attend the hearing before Master Baker as they did not want Gitanmaax to even be involved in the appeal. The awarded costs equalled the monies they were awarded from Gitanmaax in the Trial Decision. ‘Ksan was by this time no longer in existence. Therefore, the Forsythes were in a position where they were to get nothing from either ‘Ksan or Gitanmaax for their merchandise.

They say that this was due to mistakes made by the Registry. [ 9 ] After hearing submissions from the Forsythes and Gitanmaax, on December 27, 2017, The Honourable Judge Sudeyko, issued an amendment (a corrigendum ) to his Trial Decision, increasing the damages payable by ‘Ksan and Gitanmaax to the Forsythes. CLAIMS IN THIS ACTION [ 10 ] The Forsythes then brought this action. They are suing Her Majesty the Queen in Right of the Province of British Columbia because they claim that mistakes made by the Court Registry staff in Smithers amounted to negligence.

This, they say, cost them their “award” or total claim against ‘Ksan and Gitanmaax Band. They believe, had they been allowed to proceed with an appeal, they would have been successful and would have been awarded greater damages. [ 11 ] The Wet’suwet’en have a system of laws that goes back to very early times. Under their system, a person can be compensated for “shame” if they can satisfy the chiefs of conduct that warrants such. If the amount awarded is not paid by certain time periods, interest is added.

The Forsythes claim that by November 3, 2020, the amount owed to them by British Columbia for “shame” is $12,882.58, with interest continuing to accrue at 20% per annum. [ 12 ] The Claim in this lawsuit originally included other grounds and allegations. British Columbia brought an application to dismiss the Claims. This application was heard by The Honourable Judge J.T. Doulis who, on June 24, 2019, ordered that the claim “… is dismissed in its entirety except for Mabel Forsythe’s and Melanie Forsythe’s claim for damages in negligence arising out of the alleged

errors of the Court Services Registry Staff.” Forsythe v. British Columbia (Attorney General), 2019 BCPC 129 . [ 13 ] The British Columbia Crown Proceeding Act provides at s. 2 that the Province is “subject to all the liabilities to which it would be liable if it were a person”. There are certain exceptions. Section 3(2) provides one of the exceptions:

(2) Nothing in

section 2 does any of the following: (

a) authorizes proceedings against the government for anything done of omitted to be done by a person acting in good faith while discharging purporting to discharge responsibilities (

i) of a judicial nature vested in the person, or (ii) that the person has in connection with the execution of judicial process; [ 14 ] The Province argues that “The Registry staff in this case enjoy the benefit of this statutory immunity if they were: (1) acting in good faith; and (2) discharging or purported to discharge responsibilities that are either of a judicial nature or that they have in connection with the execution of judicial process.” [ 15 ] On all of the evidence, I am satisfied that the Court Registry staff were at all times acting in good faith when dealing with the Forsythes and their court proceedings.

It is not an exaggeration to say that they went out of their way to help the Forsythes file the proper documents and advance their case. [ 16 ] The only action that causes this Court concern is the length of time that it took to distribute The Honourable Judge Sudeyko Trial Decision to the Forsythes and the other parties. The evidence of Registry staff was that normally a judgment would be sent to parties within days of being filed. Here, this practice was not followed and it took many months for the judgment to be distributed.

I am satisfied that what happened here was an honest error in the length of time distribution took. The delay in distribution was to all of the parties. There was no bias. I am satisfied that this error is not evidence of bad faith. By the time that the Forsythes received the judgment, they were out of time to appeal. They sought leave to extent the time limit. This was the case before Master Baker. His dismissal of their application for an order to extend the time was not based on how long it had taken to bring the appeal but rather on the merits.

If the Forsythes were of the opinion that Master Baker was in error, their remedy was to appeal his decision. They did not. [ 17 ] Aside from their allegation of negligence claimed by the Forsythes due to the length of time they took to distribute the Trial Decision, they claim that Registry staff acted improperly by how they treated them: the requests to change documents filed as evidenced in the return notices, the information that Gitanmaax was required to be named as a party, and various other assistance offered during the numerous attendances at the registry.

This series of complaints seem to be the basis for the Claim for damages for shame. [ 18 ] Whether the actions of the Registry staff are seen by the Claimants as negligence or the basis of the shame damages, there is no basis on the facts for either. Court Registry staff went beyond what was required in order to assist these two self-represented litigants. On approximately one hundred occasions, Melanie Forsythe came to the Registry where staff did their best to assist her. There is no evidence of negligence.

There is no evidence of any conduct that could arise to a shame award for damages. [ 19 ] I am satisfied that when Court Registry staff carry out their duties, they exercise responsibilities “of a judicial nature” or “in connection with the execution of judicial process”.

It is clear from the wording of the Crown Proceeding Act s. 3(2) and from cases on similar statutes throughout Canada and the Commonwealth that the scope of the immunity is not restricted to judicial functions, but include administrative functions such as those performed by Court Registry staff “in connection with the execution of judicial process”. As the cases discuss, “execution” means implementation such as giving effect to court orders.

The “judicial process” includes the commencement of a case to the end. [ 20 ] The only conduct of the Court Registry staff that could amount to negligence was the length of time it took to distribute the Trial Decision. As discussed above, I am satisfied that this was an unfortunate error. An error is not necessarily negligence. The Court Registry staff do not have a private law duty of care to the public, including the Forsythes.

Their conduct is included in their “judicial” functions. [ 21 ] On the evidence, every action that Court Registry staff performed in relation to the Forsythes was done in good faith and British Columbia is protected from liability pursuant to the Crown Proceeding Act s. 3(2). [ 22 ] Even if there was a duty of care, I agree with the Province that the damages claimed are not, nor could they be, attributed to any acts or omissions of the Court Registry staff. The Forsythes are not satisfied with how The Honourable Judge Sudeyko calculated the money owed to them by ‘Ksan and Gitanmaax.

This forms one of their two claims for damage. An appeal of this decision was dealt with by Master Baker. They appear to assume that had their appeal been allowed to proceed that they would have been successful. That was not the decision of Master Baker.

Although the Forsythes do not like the outcome of those proceedings it has nothing to do with the Court Registry staff. [ 23 ] Similarly, assistance given to the Forsythes by the Court Registry staff does not amount to a claim for shame. [ 24 ] Therefore, even if the Court Registry staff were not covered by the immunity of the Crown Proceeding Act , s. 3(2), which I find they are, there has been no negligence proved here and even if there was, the damages sought do not follow. [ 25 ] The claim is dismissed. [ 26 ] Under all of the circumstances, I suggest that British Columbia might not seek an order of costs.

If necessary, I will receive written submissions on this issue.

_____________________________ The Honourable Judge T.J. Gove Provincial Court of British Columbia