Ngyou v. JNS Flooring Ltd., 2023 BCPC 252

Citation: Ngyou v. JNS Flooring Ltd. 2023 BCPC 252 Date: 20231127 File No: C19061 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: KENNETH J. NGYOU CLAIMANT AND: JNS FLOORING LTD. and STEVEN RONALD JOSEPH ALLAIN DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Claimant: L. Vidovich Counsel for the Defendants: J. Kennedy

Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 16 and 17, 2023 Date of Judgment: November 27, 2023 Introduction [ 1 ] On October 26, 2023, I issued a judgment that JNS Flooring Ltd. and Steven Ronald Joseph Allain were jointly and severally liable to pay Kenneth J. Ngyou $20,000 and court costs of $266.00. [ 2 ] I went on to order as follows: Should Kenneth J. Ngyou wish to submit a claim for payment of further reasonable charges, expenses or a penalty relating to the conduct of these proceedings pursuant to Small Claims Rule 20, or for payment of a penalty pursuant to Small Claims Rule 10.1, he will within 21 days of the date of this decision:

a) Submit the claim along with any supporting documentation to this Court for approval, and

b) Provide a copy of those submissions to the Defendants. If the Defendants wish to set out their position about the claim for reasonable charges, expenses, or any penalty, then they must file written submissions with the Court no later than 35 days of the date of this decision, with a copy provided to Kenneth J. Ngyou. [ 3 ] Mr.

Ngyou has now submitted a claim for the following: 1 . $472.50 paid to BC Floor Covering Association for a flooring inspection. 2 . $30.94 for a disbursement cost of e-filing a Form 38 Address for Service ($7.00) and the agent’s filing fee ($22.80 plus GST). 3. $34.80 for mileage. [ 4 ] The Defendants filed a reply. Their position is that I should only allow the claim of $7.00 in relation to a charge for filing with the court a Form 38 Address for Service . [ 5 ] I will address each of these items separately.

The claim for $472.50 paid to BC Floor Covering Association for a flooring inspection [ 6 ] Proof of this expenditure was found in an invoice issued by the BC Floor Covering Association dated August 28, 2021. The invoice refers to an inspection that occurred on August 27, 2021. [ 7 ] The Claimant filed his Notice of Claim on October 12, 2021, and the trial was held on October 16-17, 2023.

At trial, the Claimant relied on the BC Floor Covering Association report. [ 8 ] The Defendants submit that the report costs should have been included in the Notice of Claim since this was an expense that was incurred before the filing of the Notice of Claim. The Defendants submit that this was not an expense that directly related to the conduct of the proceedings because the proceedings had not yet commenced. [ 9 ] Rule 20(2)(

c) states as follows:

(2) An unsuccessful party must pay to the successful party the following expenses, unless a judge or registrar orders otherwise: ….. (

c) any other reasonable charges or expenses that the judge or registrar considers directly relate to the conduct of the proceeding. [ 10 ] I referred to this report in my Reasons for Judgment, citing its conclusion. I relied upon it in determining what was improperly constructed and what areas of the flooring did not display any problems. In my view, the report was relevant to the conduct of the proceedings and the results of the trial. [ 11 ] Had the claim for this cost been included in the Notice of Claim , I would still have had to consider it with reference to Rule 20(2) (c).

As such, the failure to include this cost as a separate item in the Notice of Claim does not prevent me from considering the request under Rule 20(2)(c). [ 12 ] I conclude that Defendants are required to reimburse Mr. Ngyou for the cost of the report. The Claim for $30.94 for a disbursement cost of e-filing an Address for Service ($7.00) and the Agent’s filing fee ($22.80 plus GST) [ 13 ] The Claimant’s law firm used the filing agent Dye & Durham Corporation to file by fax a Form 38 Address for Service .

The invoice issued by Dye & Durham referred to the following charges: Electronic Filing $22.80 plus GST of $1.14 • CSO Submission Fee $7.00

[ 14 ] Court Services Online (CSO) charges an e-filing fee of $7.00. [ 15 ] The charge of $22.80 relates to the fee payable to Dye & Durham for e-filing the Form 38 Address for Service . [ 16 ] This court has previously allowed reasonable disbursements for agent’s fees: see Kelly v. Lam and Ruiz , 2006 BCPC 98 , which cited Gaudet v. Mair ,

(1996) B.C.J. No. 2547 . On the other hand, filing fees were held not to be recoverable in Bagry (Guardian ad litem) v. Rouleau , [1994] B.C.J. No. 1212 . [ 17 ] In my view, a filing agent’s fees may be considered a reasonable charge or expense related to the conduct of the proceedings within the meaning of Rule 20(2)(c). As such, I prefer the view expressed in Kelly v. Lam and Ruiz , which has been cited in subsequent decisions such as Knittel v. Hazco Environmental , 2009 BCPC 158 . [ 18 ] Based on this, I order reimbursement of the $7.00 CSO Submission Fee.

The Defendants conceded that this disbursement is recoverable. [ 19 ] The Electronic Filing charge of $22.80 plus GST was to pay Dye & Durham for e-filing the Form 38 Address for Service . I was not told why the Claimant or his lawyer could not have e-filed the Form 38 Address for Service . Absent such an explanation, I am unable to conclude that this was a reasonable expense and I will not allow it. The claim for $34.80 for mileage [ 20 ] A claim for mileage costs has been disallowed by this court in several cases: Knittel v. Hazco Environmental , 2009 BCPC 158 ; Durack Contracting Ltd. v.

Vanderwiel , 2001 BCPC 41 ; Gaudet v. Mair, [1996] B.C.J. No. 2547 ; Dugdale v. Mead , 2010 BCPC 233 ; Fales v. Wawanesa Mutual Insurance Company , 2020 BCPC 48 . The rationale for disallowing a mileage claim is that such reimbursement would be inconsistent with ss. 2 and 19(4) of the Small Claims Act, and the goal of resolving disputes in a “just, speedy, inexpensive and simple manner.” Although there may be instances where a mileage claim would be reasonable, this is not such a case. [ 21 ] Based on these authorities, I dismiss the mileage claim.

Summary [ 22 ] I order as follows: Pursuant to Rule 20, JNS Flooring Ltd. and Ronald Joseph Allain are jointly and severally liable to pay Kenneth J. Ngyou the sum of $479.50. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia