Cadden v., 2020 BCPC 96

Citation: Cadden v. 0938492 BC Ltd. 2020 BCPC 96 Date: 20200501 File No: 02352 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Civil BETWEEN: MAUREEN CADDEN CLAIMANT AND: 0938492 BC LTD. dba ROYSTON ESSO; 0809444 BC LTD. dba ROYSTON ESSO; SEUNG SAOK CHOI; JAE HEE KWON; U-HAUL CO. (CANADA) LTD.; U-HAUL CO. (CANADA) LTEE.; and U-HAUL INT'L DEFENDANTS RULING ON APPLICATION FOR URGENT HEARING OF THE HONOURABLE JUDGE FLEWELLING

Date of Judgment: May 1, 2020 [ 1 ] The claimant, Maureen Cadden, applies for an urgent hearing during which she will request a Default Order. She bases her request for a Default Order against the defendants for “failure to reply to the revised claim served February 25 and 26, 2020 to all existing and new defendants". [ 2 ] There is a lengthy history in this matter and I will briefly summarize that history by way of background. Ms. Cadden initially filed a Notice of Claim on September 30, 2016.

Her Notice of Claim was amended on November 3, 2016 and again most recently on February 24, 2020. [ 3 ] Her claim arises from allegations that the numbered company defendants, the personal defendants Choi and Kwon and what I will classify as the U-Haul Canada defendants, are responsible for causing her loss and damage including personal injury as a result of an incident when a U-Haul trailer attached to her vehicle became detached causing a collision between the trailer and Ms. Cadden's vehicle.

This is alleged to have occurred on or about December 23, 2014. [ 4 ] Because a settlement conference had already taken place on September 29, 2017, Ms. Cadden applied to the court for an order allowing her to file an Amended Notice of Claim. The application was before the honourable Judge Hutcheson who ordered that she be granted leave to make amendments to her claim by adding "Kwon or any other defendants". [ 5 ] In the initial and first Amended Notice of Claim, Ms. Cadden had included a defendant named as "John Doe".

John Doe is alleged to have been the individual who attached the U-Haul trailer to her vehicle and this person's exact identity was unknown to Ms. Cadden for a period of time. [ 6 ] In the most recent Amended Notice of Claim, she has struck out the name "John Doe" and made the notation "resolved as Kwon" beside it. The second amendment appears to be adding an additional cause of action, although it is not perfectly clear. In the narrative describing what happened she has added the sentence "Hitch and lifetime warranty installed by U-Haul International".

Related to this she also added another defendant – “U-Haul International”. [ 7 ] The final amendment increases the original claim of non-pecuniary damages for pain and suffering from $22,000 to $32,000 bringing the total amount claimed, prior to filing fees, to $34,655.59. [ 8 ] Ms. Cadden ostensibly served her Amended Notice of Claim on U-Haul International by sending it registered mail to the law firm representing the other defendants – Alexander Holburn et al. She also served the defendant Kwon by registered mail to what appears to be a residential address.

She also mailed a copy of the Amended Notice of Claim to an address in Burnaby, British Columbia. Along with the Amended Notice of Claim, she included a Reply form in each case. [ 9 ] The documents were delivered to Alexander Holburn on February 26, 2020, and on the defendant Kwon on February 25, 2020. [ 10 ] No additional Replies have been filed. It is on this basis that Ms. Cadden asserts that she ought to have a Default Order against, or so it appears, all defendants including the newly added defendant U-Haul International. [ 11 ] Kwon is the sole director of the defendant 0938492 BC Ltd.

These defendants have always been included in the pleadings and, in fact, a Reply was filed by Kwon and the numbered company on November 25, 2016. [ 12 ] The claim as against U-Haul International appears to relate to a purchase on July 28, 2010 of a trailer hitch from a U-Haul dealership in Bellingham, Washington. Ms. Cadden references this in the type of written

summary attached to her Application for Urgent Hearing. She also attached a copy of a service invoice for the purchase and installation of a trailer hitch on July 28, 2010 with U-Haul Moving and Storage. She has also attached a copy of what is described as a U-Haul "Lifetime Unlimited Hitch Warranty" related to the same contract. [ 13 ] U-Haul International has not filed a Reply to date.

There was no order by Judge Hutcheson respecting service of this new defendant and I do not know if the purported service of the Amended Notice of Claim upon U-Haul International by registered mail to Alexander Holburn was by consent. [ 14 ] Ordinarily, if a defendant is served with a Notice of Claim that defendant must reply within fourteen days after service if served in British Columbia or within thirty days after service if service occurred outside British Columbia.

This must occur before the registrar has made a default order or set a date for hearing. [ Small Claims Rule 3 (4)]. [ 15 ] Ordinarily, if a defendant does not file a Reply within the required time limit and the claim is not for a debt, as is the situation in this case, the registrar must set a date for a hearing to determine the amount the claimant is entitled to if the claim is for money, and in any other case, the terms of an appropriate order. [ Small Claims Rule 6 (9), (10)]. [ 16 ] However, if any other defendant has filed a Reply and a date is set for a trial conference or a trial of the claim, the hearing regarding the default order must be held at that time, unless a judge orders otherwise. [ Small Claims Rule (6)]. [ 17 ] As a result of the state of emergency which has been declared in British Columbia due to COVID 19, the normal operations of the Provincial Court of British Columbia have been suspended. [ 18 ] As a result of this situation, only applications respecting urgent matters will be heard by a Judge by telephone or video.

On

April 14, 2020, Chief Judge Gillespie issued a Notice to the Profession and Public to provide some guidance as to what would be considered urgent in small claims matters. Those include applications:

a) Regarding outstanding warrants;

b) To preserve limitation periods if required;

c) To extend the time for filing pleadings where permitted under the small claims rules; and

d) To renew notices of claim. [ 19 ] This list is not exhaustive and is meant to provide guidance to judges who must determine which matters ought to have an urgent hearing. Ultimately, whether or not a matter is urgent will depend on all the circumstances of the case including whether there would be irreparable harm to a party if an urgent hearing is not held. Urgency may also be made out if it is established that serious and severe financial harm could occur if a hearing does not take place. [ 20 ] Ms. Cadden says that her application for a default order is urgent.

She alleges that the defendants have disposed of assets in the past and she is afraid that this "may be repeated now that they have been served with the revised claim.” [ 21 ] This case was originally scheduled to proceed to trial on March 11 and 12, 2019. By consent of all parties, including Ms. Cadden, that trial was adjourned. As I understand it, the reason the trial was adjourned was that none of the parties were ready to proceed. Currently, a pretrial conference is scheduled to take place on July 8, 2020 and a two day trial on October 6 and 7, 2020. [ 22 ] I reviewed the materials filed by Ms.

Cadden relating to the adjournment of the first trial a year ago and she made no mention of concern about any of the defendants disposing of assets at that time. In any event, I am not satisfied that in and of itself this allegation is enough to satisfy me that she would suffer irreparable or severe harm if she does not receive a hearing now. [ 23 ] Furthermore, it appears to me that Ms. Cadden's application for a Default Order against all defendants is misconceived. The defendant Kwon, has always been a defendant in these proceedings and is not new.

I understand that there may now be confirmation that this defendant was the individual who attached the U-Haul trailer to Ms. Cadden's vehicle but that is an issue in relation to the need to clarify pleadings or agree on certain facts and is not the addition of a new defendant requiring a new and separate Reply. [ 24 ] When served with an Amended Notice of Claim it is not necessary for a defendant to file an Amended Reply and they may simply choose to rely on the originally filed Reply. [Rule 8 (3.1)].

In addition, no default order can be made only because a party relies on a previously filed Reply instead of changing that Reply. [Rule 8 (3.2)]. [ 25 ] Pursuant to the Small Claims Rules , where other defendants have filed Replies and a trial conference or trial is scheduled, as is the case here, the application for a Default Order must take place on the day of the trial. [ 26 ] Finally, increasing the amount of the claim so that it is in line with the current monetary jurisdiction of Small Claims Court would likely not require any of the defendants to file an Amended Reply. [ 27 ] I am not satisfied that, in all the circumstances, Ms.

Cadden's need for a hearing is urgent. However, I am the of the view that because a trial is fast approaching, it would assist all the parties to clarify what needs to occur in relation to the most recently added defendant, U-Haul International. [ 28 ] To that end, I refer this matter to the Judicial Case Manager to arrange a telephone conference before me with Ms. Cadden and counsel for the defendants. [ 29 ] Ms. Cadden’s Application for Urgent Hearing is dismissed. ______________________________ The Honourable Judge Flewelling Provincial Court of British Columbia