Madill v. Idar Bergseth Designs Inc., 2010 BCSC 1860

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Madill v. Idar Bergseth Designs Inc., 2010 BCSC 1860 Date: 20101224 Docket: 10 4163 Registry: Victoria Between: Beth Madill Plaintiff And: Idar Bergseth Designs Inc. Defendant Before: Master Bouck Reasons for Judgment Counsel for Plaintiff: J. C. M. Main Counsel for Defendant: M. R. Scherr Place and Date of Hearing: Victoria, B.C. December 14, 2010 Place and Date of Judgment: Victoria, B.C.

December 24, 2010 The Application [ 1 ] The plaintiff applies to transfer these proceedings to the Provincial Court of British Columbia pursuant to s. 15 of the Supreme Court Act , R.S.B.C. 1996, c. 443. [ 2 ] The defendant opposes the transfer but if that order is granted, seeks its costs incurred in defending the action to date. The plaintiff says that a determination of costs should be reserved until the proceedings in the Provincial Court are disposed of either by way of judgment or settlement. The Facts [ 3 ] The plaintiff commenced this action on October 15, 2010.

According to the notice of civil claim, the action relates to the plaintiff’s commissioning of a custom design ring from the defendant. The notice of civil claim sets out, in part, the following facts: 5. The Plaintiff relied on the said representations and entered into a Contract to purchase the ring, the conditions of the Contract being verbal which included the promise that the Plaintiff would be satisfied with the ring. 6. The Defendant completed the ring on or about July 23, 2010, and the Plaintiff paid the sum of $9,738.40 to purchase the ring. 7.

The Plaintiff was unsatisfied with the ring, its design and value. 8. The Defendant warranted verbally and in writing that the replacement cost of the ring for insurance purposes was $10,060.80. 9. In fact, the ring is worth approximately $4,500.00 plus taxes. 10.

The Plaintiff has demanded that the entire purchase price be refunded but the Defendant has declined or refused to do so. [ 4 ] The relief sought by the plaintiff includes rescission, damages, repayment of the amount paid of $9,738.40 and repayment of appraisal costs. [ 5 ] In its response, the defendant pleads that there was never a contract between the parties and that the price paid for the ring represents fair market value.

[ 6 ] Depending on the outcome of this application, the defendant intends to proceed (in early January, 2011) with an application to have the action dismissed on the grounds that the notice of civil claim fails to disclose a reasonable claim. DISCUSSION [ 7 ] The defendant suggests that the plaintiff’s objective in seeking the transfer order is to avoid paying costs when the action is inevitably dismissed.

It is submitted that what the plaintiff should be doing is discontinuing this action, paying the defendant’s costs incurred to date and then proceeding with a claim in Provincial Court if she so wishes. [ 8 ] Plaintiff’s counsel acknowledges that the monetary amount of the claim is within the Provincial Court’s jurisdiction. However, Mr.

Main suggests that it was reasonable to bring the proceeding in the Supreme Court for two reasons: first, to allow the plaintiff the possible opportunity to examine the defendant’s representative for discovery; and second, to ensure that the remedy of rescission is available to the plaintiff. It is suggested that the Provincial Court may not be able to grant this remedy. [ 9 ] The explanation for the timing of this application is found in the affidavit of Mr. Main’s legal assistant.

That explanation is simply that the plaintiff has given instructions to counsel to transfer the proceeding. [ 10 ] Applications to transfer proceedings from the Supreme Court to the Provincial Court are somewhat commonplace. The test to be met is set out in Squamish Ford Sales Ltd. v. Doll , [1997] B.C.J. No. 1562 at paras. 16 and 17 : 16 Reference has been made to the decision of Master Chamberlist in Manley v. Burns Lake Community Development Assn. [1996] B.C.J. No. 2236 . Smithers Registry No. 8953, where the learned master considers some factors which may be applicable on such applications: [10] In Hiebert v.

Brown, [1995] B.C.J. No. 2015 , in dealing with a similar application, I stated that the court in exercising its powers under s. 13.1, must determine whether in all the circumstances it would be just and convenient to order a transfer to Provincial Court after balancing the prejudices to the respective parties. [11] Examples of considerations the court has taken into account in balancing these prejudices include, but are not limited to, the following considerations: (

a) lateness in making the application for transfer; (

b) availability of Supreme Court pre-trial procedures; (

c) number of witnesses and the complexity of the case; and (

d) potential quantum of damages. 17 The plaintiff refers to the decision of Master Horn in Martin v. Tom [1995] B.C.J. No 2342 , I turn for assistance to the decision of Master Powers in Long v. Jackson (1994) 1994 CanLII 2106 (BC SC) , 88 B.C.L.R. (2d) 46. In that judgment he set forth a number of matters which required consideration in relation to an application to transfer to the Provincial Court. I will not repeat all those considerations.

The considerations which most affect me are these: 1) There will likely be no delay in this matter coming for trial if the action is transferred to the Provincial Court. 2) While this is a proper case for the consideration of a jury, being an issue of quantum of damages only, a jury trial would be far more expensive and lengthy. 3) Discoveries have been completed and so neither party will be prejudiced by the paucity of discovery procedures in the Provincial Court. 4) The application is brought well before the trial date. [ 11 ] In this case, the application is brought early in the proceeding; neither party wishes to utilize the Supreme Court pre-trial processes; and there is no evidence of any delay in having the matter adjudicated in Provincial Court. [ 12 ] Nonetheless, at least one authority provides that a transfer order will not be made when such an application is made on the eve of trial and for transparent tactical reasons: Berenjian v.

Primus, 2009 BCSC 883 . [ 13 ] However, I was not referred to any authority which suggests that a transfer of proceedings should be denied in order to allow an application under Rule 9-5 (or its predecessor, Rule 19(24)) . The defendant might be seen as prejudiced by the lost opportunity to recover its costs upon dismissal.

However, the defendant can still recover its costs incurred in this court if the plaintiff’s claim fails in the Provincial Court. [ 14 ] In the circumstances of this claim, the plaintiff has met the onus of demonstrating that it is just and efficient to transfer these proceedings to the Provincial Court. [ 15 ] There is then the secondary issue of the appropriate costs order to be made when proceedings are transferred. [ 16 ] The decision of Master Horn in Day v.

Wilson (1996), 4 C.P.C. (4 th ) 251 (B.C.S.C.) is the leading authority on the issue and has been followed on numerous occasions: see for example, Manley v. Burns Lake Community Development Assn., [1996] B.C.J. No. 2236 (S.C.) ; Thompson River Veneer Products LP v. Hall (c.o.b. Extreme Transportation Inc.), 2008 BCSC 571 ; and Ezer v. Syrjala,

2005 BCSC 1636 . [ 17 ] In Day v. Wilson , the court decided that where a matter is transferred, the question of costs in the Supreme Court should be reserved until the proceedings in the Provincial Court are resolved by settlement or judgment. [ 18 ] The defendant submits that this action should never have been brought in the in this court. Hence, the defendant should receive its costs regardless of the outcome in Provincial Court: Pachini v.

Pietramala (1995), 7 B.C.L.R. (3d) 266 at p. 270, para. 16 ( in obiter ) . [ 19 ] While it is tempting to delve into the issue of whether this action should ever have been brought in the Supreme Court, the court in Day v. Wilson provides cogent reasons as to why the examination of that issue is a “waste of time”: para. 29. [ 20 ] Nevertheless, it might be appropriate to award the defendant its costs thrown away. [ 21 ] For example, in Day v.

Wilson , the court determined that such an order is appropriate when the transfer application was brought subsequent to the defendant setting the matter for trial and filing a notice requiring trial by jury. The defendant was awarded costs thrown away with respect to setting the trial, but to be assessed upon resolution of the action in the Provincial Court. [ 22 ] Following this authority and as an alternative submission, the defendant seeks its costs for preparing the application for dismissal of the plaintiff’s claim: Supreme Court Civil Rules, Appendix B, s. 4(4), Item 21.

It is suggested that an award of 2 units is warranted. [ 23 ] I agree that the preparation of that application can be considered a wasted cost. However, I decline to determine those costs (including determining the appropriate Scale) at this juncture. Consistent with the order made in Day v. Wilson , the defendant is awarded its costs for the preparation of that application to be assessed upon resolution of this action in the Provincial Court. [ 24 ] Costs of this application will follow the event in the Provincial Court. “C. P. Bouck” Master C. P. Bouck