Widen v. Armitage and Alpine Holdings Ltd. Date:, 2013 BCPC 429

Citation: Widen v. Armitage and Alpine Holdings Ltd. Date: 20130129 2013 BCPC 0429 File No: 16480 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LORI-ANN ELIZABETH WIDEN CLAIMANT AND: SHEWLDON LEW ARMITAGE DEFENDANT AND: ALPINE HOLDINGS LTD. THIRD PARTY RULING AT SETTLEMENT CONFERENCE OF THE HONOURABLE JUDGE E.L. BAYLIFF Appearing on their own behalf: L. Widen Counsel for the Defendant: Mr. J. Perry Counsel for Alpine Holdings Ltd. : Mr. Fitzmaurice (agent) Place of Hearing: Smithers , B.C. Date of Hearing: January 21, 2013 and January 25, 2013

Date of Judgment: January 29, 2013 [ 1 ] This is my Ruling on various issues that arose at the Settlement Conference of this matter which was held on Monday, January 21 st , 2013 and continued on Friday, January 25, 2013. [ 2 ] Ms. Widen’s claim is dismissed in its entirety against both defendants. I will also make an Order that Ms. Widen may not file any further claim in Small Claims Court without first applying for, and obtaining, the consent of a Provincial Court judge. [ 3 ] I will now explain why I am making these Orders. There are several reasons. [ 4 ] First, Ms.

Widen failed to appear at the Settlement Conference which was scheduled for Monday, January 21 st , 2013. She says she did not receive the notice that was mailed out, however, there is no indication in the file that the notice was returned, undelivered. There is no indication that Ms. Widen’s address is anything other than what she indicated when she filed her Notice of Claim and, it is evident that she received recent correspondence from the Defendant at that address because she brought the package into the Court Registry on Tuesday or Wednesday of this week.

Pursuant to Rule 7(17) of the Small Claims Rules, if a party does not attend a Settlement Conference, a judge may dismiss the claim. I could have dismissed Ms. Widen’s claim against both defendants on Monday for this reason alone. [ 5 ] As it turns out, I had reserved judgment for several days in order to consider Mr. Perry’s submissions which dealt with why the claim should be dismissed on its merits. On Wednesday, January 23 rd I was advised that Ms. Widen had come in to the Court Registry and wished to contest Mr. Perry’s application to have her case dismissed.

Accordingly, some time was then scheduled for Friday, January 25 th , to re-open the Settlement Conference so that I might hear from Ms. Widen. I asked her to focus on the question of whether her claim should be dismissed on the basis that the Residential Tenancy Branch had already dealt with the case. After hearing from Ms. Widen I advised Mr. Perry that I did not need to hear further from him and I then reserved judgment. [ 6 ] Turning first to the corporate defendant, Alpine Holdings Ltd., dismissal of the claim is justified because I am satisfied that this company has nothing to do with this case. Mr.

Armitage, the individual defendant, has a proprietorship with a very similar name, “Alpine Holdings 2005”, and it appears that Ms. Widen intended to sue that entity rather than Alpine Holdings Ltd. [ 7 ] As it concerns the individual defendant, Sheldon Armitage (and his proprietorship, Alpine Holdings 2005), dismissal is justified firstly because I am satisfied that the Small Claims Court does not have jurisdiction to decide the issues set out in the Notice of Claim. [ 8 ] The Notice of Claim is difficult to follow but it would appear that Ms.

Widen is seeking damages in the sum of $25,000 for many different problems arising out of a residential tenancy in which Mr. Armitage, doing business as Alpine Holdings 2005, was her landlord. As mentioned, Ms. Widen has already referred issues arising out of her tenancy to the Residential Tenancy Branch for redress. She sought a monetary award of $25,000, the same amount that she seeks in this Small Claims action. In a five page decision filed on August 30 th , 2011, adjudicator K. Miller dismissed her application. She applied for a Review and this too was unsuccessful.

Just over a year later, on November 2 nd , 2012, Ms. Widen filed this claim in Small Claims Court. [ 9 ] In court, on January 25 th , I asked Ms. Widen to focus her submissions on the question of whether all issues in her dispute with Mr. Armitage had already been decided by the Residential Tenancy Branch. Ms. Widen argued that her Notice of Claim raises different issues than were dealt with in front of the Residential Tenancy Branch decision maker. She focused on what she termed deceptive behavior on the part of Mr. Armitage. She said that he falsely led her to believe that (

a) the house she rented from him was owned by a company (Alpine Holdings Ltd.) rather than by Mr. Armitage doing business under the proprietorship name of Alpine Holdings 2005; (

b) the bank where Mr. Armitage works somehow or other supported or vouched for the validity of Mr. Armitage’s personal business, and (

c) a man called Howard Duff who Ms. Widen holds in low regard was not involved in the ownership of the house that she ended up renting. [ 10 ] I have re-read Ms. Widen’s Notice of Claim and re-read the decision of the Residential Tenancy Branch decision maker and considered Ms. Widen’s verbal submissions of January 25 th . My conclusion is that Ms. Widen’s claim before this court does not raise any issues that were not before the Residential Tenancy Branch, except for her point about Mr. Armitage being deceitful when he led her to believe he was operating as a company rather than as a proprietorship.

I will come back to this issue towards the end of my reasons. [ 11 ] Concerning all of the other issues raised, I note that the effect of sections 58(2) and (3) of the Residential Tenancy Act is that if a landlord or a tenant refers a dispute concerning a tenancy to the Residential Tenancy Branch for resolution then a court does not have, and must not exercise, jurisdiction in respect of the matter. I therefore conclude that the Small Claims Court does not have jurisdiction because the Residential Tenancy Branch has already dealt with the case. [ 12 ] As well, to the extent that Ms.

Widen’s Notice of Claim raises issues of libel and slander, her claim is barred by s. 3(2) of the Small Claims Act. [ 13 ] Even if I am wrong on the jurisdictional points, I would still dismiss Ms. Widen’s claim because I am satisfied that it amounts to an abuse of the court’s process. I do have the authority at a Settlement Conference to dismiss a claim that is “frivolous or an abuse of the court’s process” (Rule 7(14)(i)). [ 14 ] I find that Ms. Widen’s claim is essentially an attempt to re-litigate the proceedings before the Residential Tenancy Branch.

The amount claimed is the same and the issues raised are almost all the same. Whether one agrees with the result or not, and clearly Ms. Widen does not, the fact is that this matter has already been decided by the Residential Tenancy Branch. The Small Claims Court cannot, and should not, get involved at this late date.

[ 15 ] Finally, as for the point emphasized by Ms. Widen on January 25 th , 2013 – that Mr. Armitage acted in a dishonest way by leading her to believe the house was owned by a corporation whereas, in fact, it was owned by Mr. Armitage, and perhaps Mr. Duff, in their personal capacity, doing business under the proprietorship name, Alpine Holdings 2005 – this is either a frivolous claim or one that discloses no triable issue. It is based on a misunderstanding of the law. People often do business using a proprietorship name and there is nothing wrong about that. It is not a dishonest thing to do. Even if Mr.

Armitage lied to Ms. Widen about whether Alpine Holdings was incorporated or not, Ms. Widen has failed to demonstrate to me why this would entitle her to damages. [ 16 ] In

summary, the Notice of Claim filed November 2 nd , 2012 is dismissed in its entirety. [ 17 ] I am also going to exercise my limited jurisdiction under s. 2(2) of the Small Claims Act to “make any order or give any direction [the Court] considers necessary to achieve the purpose of this Act and the rules” to order that Ms. Widen shall not file any further Notices of Claim without leave of a Provincial Court judge. I take this step because of the history of the current matter and my sense that Ms. Widen has difficulty accepting that she has received a final answer as it concerns the dispute between herself and Mr.

Armitage. It is also my assessment, having, as I said, read the pleadings and materials in this matter and having heard Ms. Widen speak, that she has difficulty sorting out the difference between a feeling of ill usage and an actual legal issue that can be resolved by a Court. On a personal level I feel empathy for Ms. Widen because she appears to believe that Mr. Armitage has done her wrong. However, the law cannot redress all wrongs and sometimes it is important for our own mental and physical health to simply accept this and move on with life. I understand that Ms.

Widen was, and perhaps still is, in the health care profession. She comes across in Court as a kind and compassionate person. I would ask her, therefore, to think carefully about the fact that the court system is a valuable public resource which needs to be saved for cases where it truly can make a difference – such as dealing with alleged criminals or cases involving children (custody, access and protection). _______________________ E.L. Bayliff Provincial Court Judge