Dickinson v. Love Electric, 2022 BCPC 176

Citation: Dickinson v. Love Electric

(1987) LTD. 2022 BCPC 176 Date: 20220818 File No: 11871 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: BARRY BRIAN DICKINSON CLAIMANT AND: LOVE ELECTRIC

(1987) LTD. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Claimant: E. Murphy appearing by videoconference Counsel for the Defendant: T. Moon appearing by videoconference Place of Hearing: Prince Rupert , B.C.

Date of Hearing: August 18, 2022 Date of Judgment: August 18, 2022 [ 1 ] THE COURT: This is my ruling on a pretrial application by the defendant seeking an order of the court dismissing the claimant’s action against the defendant with reasonable fees, charges, and expenses payable by the claimant to the defendant. [ 2 ] The defendant brings this application pursuant to Small Claims Rule 7(14)(i), 7.5(14)(i), 16(6)(o), and s. 2 of the Small Claims Act . [ 3 ] The matter is currently set for a four-day trial beginning in five weeks’ time.

Facts [ 4 ] At all material times, the defendant was a business doing, among other things, ship repairs. The defendant leased premises for their shop at 1050 Saskatoon Avenue, Prince Rupert, British Columbia. [ 5 ] The claimant alleges that a fire occurred on or about November 9, 2020, at or near the defendant’s shop. The claimant further alleges that the fire destroyed the claimant’s rebuilt marine engine that was in the defendant’s shop. [ 6 ] The defendant believes the fire to have been electrical in nature, possibly caused by a surge in the system when it was being re- energized by B.C. Hydro.

Shortly after the fire started, Prince Rupert Fire Rescue attended the defendant’s shop. The Prince Rupert Fire Rescue fire report states that while the exact cause of the fire is undetermined, it is possible the fire began from an electrical issue and the fire was consistent with “the power being re-energized in the area.” Counsel for the defendant stated that he has produced and provided to the claimant an expert report that will confirm the probable cause of the fire.

The Lawsuit [ 7 ] In his notice of claim, the claimant alleges that he sustained a total loss of $14,035.66. [ 8 ] On or about September 9, 2021, the defendant filed a reply denying liability for the fire. [ 9 ] On or about October 28, 2021, a settlement conference was held.

At the settlement conference, Judge Stewart ordered the defendant to produce the defendant’s policy of insurance to the claimant within 14 days. [ 10 ] On or about November 2, 2021, the defendant provided the claimant a copy of the redacted policy of insurance. [ 11 ] On or about April 20, 2022, the claimant filed an application to a judge seeking an order that the defendant produce an unredacted copy of the policy of insurance. [ 12 ] On or about May 4, 2022, the defendant provided the claimant with a copy of the unredacted policy of insurance. [ 13 ] On January 13, 2022, a further settlement conference with Judge Stewart was held.

At that settlement conference, Judge Stewart ordered that: 1. This matter is to be set for a four-day trial. 2. 120 days before trial the claimant will provide a list of witnesses and a written statement of evidence that that witness will give, including himself, and all documents that each witness will tender as exhibits at trial. 3. If the claimant intends to rely on any expert evidence, written notice of that will be given 90 days before the trial, and the defendant shall do that same. 4. 75 days before the trial, the claimant will provide written notice of any of the reply evidence contemplated. 5.

There will be a case management conference scheduled 60 days before the trial. 6. Subject to any directions given at the pretrial conference, the parties shall prepare the case on the basis that any witness direct evidence will be limited to the written

summary of evidence provided as set out in the case management order and the viva voce will be limited to cross-examination on the written notice. At the pretrial conference, it will be determined whether in the circumstances of any expert witnesses it is necessary they be made available for cross-examination on the written reports, and if so, whether any such evidence shall be given using video conferencing rather than in-person attendance. Issues [ 14 ] The issues for the court to decide are as follows: 1.

In the notice of claim, has the claimant made an allegation against the defendant that gives rise to a cause of action against the defendant? 2. Has the claimant failed to comply with Judge Stewart’s order of January 13, 2022, by not providing the defendant with a list of witnesses, a written statement of the evidence each witness will give, and a copy of all documents that he proposes be tendered as exhibits? 3. Should the notice of claim be dismissed prior to trial? Discussion 1.

In the notice of claim, has the claimant made an allegation against the defendant that gives rise to a cause of action against the defendant? [ 15 ] Based upon the notice of claim, it appears to me that the claimant is relying upon the law of negligence in advancing his claim against the defendant. To succeed in negligence, the claimant must prove: (1) the defendant owed the claimant a duty of care; (2) the defendant breached the applicable duty of care, causing damage to the claimant’s engine; and

(3) the damage to the engine was a reasonably foreseeable consequence of the defendant’s negligent act. In other words, as part of his negligence claim, the claimant must prove that the defendant did something unreasonable to cause the damage to the engine.

I take this to mean that the claimant alleges that: (1) the defendant is responsible, in whole or part, for the fire in the repair shop, which fire caused the damage to the engine; or (2) the defendant did not take reasonable steps to ensure that the engine would be protected from fire damage if a fire did occur at the repair shop. [ 16 ] The claimant indisputably has no direct evidence of the defendant causing the fire or failing to keep the shop in a state of repair such that a fire would not happen.

The claimant is asking the court to draw reasonable inferences, based on the available evidence in this case, that the defendant is the proper defendant and negligent. [ 17 ] It is unclear to me from the filed materials and submissions of counsel if the defendant did anything that would have accelerated the fire or made the fire more likely. The defendant submits that it is not their responsibility to third party B.C. Hydro or the property owner, as the defendant submits it has a 100 percent defence to the claim that has been made.

Furthermore, the defendant argues that the claimant’s theory is speculative and that the true cause of the fire is either unknown or caused by B.C. Hydro. [ 18 ] In a nutshell, the defendant submits that they were in no way, shape, or form responsible for the fire and, as such, were not negligent.

It follows, therefore, that the defendant submits it cannot be held responsible for any damage to the claimant’s engine and since the claimant cannot be successful at trial against the defendant, I should summarily dismiss the claim. [ 19 ] At this stage in the proceedings, I accept that the claimant’s theory of what happened is logical and certainly possible.

It is not for me at a pre-trial conference to decide the merits of the claimant’s case, other than to conclude the claimant has set out a cause of action in the notice of claim which, if the claimant is successful at the trial of proving on a balance of probabilities, could lead to a judgment in the claimant’s favour against the defendant. [ 20 ] Consequently, I am not prepared to dismiss on this ground. 2.

Has the claimant failed to comply with Judge Stewart’s order of January 13, 2022, by not providing the defendant with a list of witnesses, a written statement of the evidence each witness will give, and a copy of all documents that he proposes be tendered as evidence? [ 21 ] As conceded by Ms. Murphy, who is counsel for the claimant, the claimant has not complied with the order of Judge Stewart. [ 22 ] Ms. Murphy became counsel approximately two months ago and has attempted to get together the evidence that she says will be required in order for the claimant to prove its case against the defendant.

At this point, however, the claimant has not provided the defendant with detailed statements from the witnesses that he will be calling at trial, nor has the claimant provided a final list of witnesses, although Ms. Murphy does say that a witness list was provided to the defendant. [ 23 ] Ms. Murphy has reviewed the defendant’s expert report. However, she requests another 24 hours to review it again and to make a decision as to whether or not: (1) the claimant will admit the expert report; or (2) the claimant will require the expert for cross-examination purposes at trial.

As an ancillary to the decision of whether to cross-examine the defendant’s expert, the claimant must still decide if he will be calling reply evidence by way of his own expert. [ 24 ] Finally, Ms. Murphy has indicated she has written to the Prince Rupert Fire Department requesting copies of the inspection reports for the building which was the defendant’s place of business, for the days, months, and possibly year prior to the fire of November 9, 2020. Ms.

Murphy has not received a reply from the Prince Rupert Fire Department as of yet, nor has she brought an application to a judge seeking an order compelling the Prince Rupert Fire Department to provide the inspection reports. 3. Should the notice of claim be dismissed prior to trial? [ 25 ] Given that I have made the determination that it is not for me to decide today whether the claimant will be successful at trial, but rather I must decide only if there is a cause of action, I do find that the cause of action pled is, in law, negligence.

Accordingly, I am not of the view that the claim should be dismissed at this point. However, I agree with Mr. Moon that there should be a penalty for the failure of the claimant to provide the information that was ordered. [ 26 ] I have reviewed Judge Stewart’s order. It is in plain English and while Mr.

Dickinson is not a lawyer and may or may not have difficulties understanding legal concepts, he, nevertheless, retained counsel two months ago, and in all the circumstances should have, at the very least, complied with Judge Stewart’s order earlier rather than later. [ 27 ] So in the circumstances, I agree with Mr. Moon, and I will be making an order that Mr. Dickinson pay $500 by way of damages/fine for failure to comply with Judge Stewart’s order, and that $500 is to be paid by September 15, 2022, in trust for the defendant, to counsel for the defendant, Mr.

Moon. [ 28 ] Furthermore, there will be an order that by no later than 4:00 p.m. on September 2, 2022, the claimant provide to counsel for the defendant an exact list of the claimant witnesses to be called at trial, detailed statements of what the anticipated evidence of those witnesses will be at trial, if a reply is going to be provided to the expert report of the defendant, a copy of the claimant’s expert report, and copies of any and all documents that will be relied upon by the claimant at trial.

[ 29 ] I further make an order that effective August 26, 2022, at 4:00 p.m., the claimant notify the defendant, through the defence counsel, as to whether or not they will require the expert that the defendant has retained for cross-examination at trial. [ 30 ] Finally, I am going to have this matter return to court on September 8, 2022, at 2:00 p.m. -- one moment -- in my courtroom, for the purpose of confirming that my order today has been complied with and confirming the exact lay of the land so that all parties know going forward. [ 31 ] While I am not prejudging what I will do on -- [ 32 ] CNSL T.

MOON: Your Honour -- [ 33 ] THE COURT: Sorry, you are not available then, Mr. Moon? [ 34 ] CNSL T. MOON: No, Your Honour. Unfortunately, I have a long chambers hearing at the Supreme Court on September 8 and 9. [ 35 ] THE COURT: Are you available on September 6? [ 36 ] CNSL T. MOON: Yes, I am, Your Honour. [ 37 ] THE COURT: Ms. Murphy, are you available September 6? [ 38 ] CNSL E. MURPHY: I have a lengthy sentencing at 9:30 in the morning in courtroom 200, Your Honour. So I expect I will be available in your court. [ 39 ] THE COURT: All right.

I will make it for 2:00 p.m. then on September 6, 2022, and as I indicated earlier, while I have not prejudged what I will do on September 6, 2022, if my order of today has not been complied with, I think one could expect that Mr. Moon will be invited to renew his application for dismissal at that time. [ 40 ] Thank you, everybody. (RULING CONCLUDED)