Forsythe v. British Columbia (Attorney General), 2019 BCPC 129

Citation: Forsythe v. British Columbia (Attorney General) 2019 BCPC 129 Date: 20190624 File No: 18162 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: MABEL FORSYTHE MELANIE FORSYTHE CLAIMANTS AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE J.T. DOULIS Appearing on their own behalf: Mable Forsythe and Melanie Forsythe Counsel for the Defendant: N. Healey, Articled Student and A. Glen Place of Hearing: Smithers , B.C. Date of Hearing: April 2, 2019 Date of Ruling: June 24, 2019 Introduction:

Introduction: [ 1 ] Mabel Forsythe and Melanie Forsythe have commenced this Small Claims action 18162 against the Province for damages relating to their previous proceedings against the Gitanmaax Band and the 'KSAN Association. The Province has filed an Application to a Judge to have their claim dismissed on the basis it is an abuse of process, unauthorized under the Crown Proceeding Act and, in any event, does not disclose any reasonable cause of action or triable issue. The Claimants oppose the application.

Issues: [ 2 ] The overarching issue before the Court is whether Claim 18162 ought to be dismissed, in whole or in part, as having no reasonable prospect of success at trial. The specific questions this Court must answer are as follows: 1. Does the claim for Amendment Damages have any reasonable prospect of success? 2. Does the claim for the Association’s Debt have any reasonable prospect of success? 3. Does the claim for damages for loss arising from Master Baker’s Judgment have any reasonable prospect of success? 4.

Does the claim for damages for loss arising from Justice Mayer’s Judgment have any reasonable prospect of success? 5. Does the claim for damages arising from the Association’s dissolution have any reasonable prospect of success? 6. Does the claim for damages arising from errors of the Registry Staff have any reasonable prospect of success? 7. Is the negligence claim statute barred by the Crown Proceeding Act ?

History of Proceedings: [ 3 ] On November 6, 2018, Mabel Forsythe and Melanie Forsythe (collectively, the “Claimants”) filed a Notice of Claim against her Majesty the Queen in Right of the Province of British Columbia (the “Province”) in the Provincial Court of British Columbia (Small Claims Court), Smithers Registry File 18162 (“Claim 18162”). It states: The claimants made a claim against the Gitanmaax Band which was decided by the written decision of Judge Sudeyko made on February 9, 2016; however, due to registry error, the decision was not sent to the claimants.

They learned of the decision only after checking with the registry about whether the decision had been released on January 18, 2017. The claimants wished to appeal from that decision, and sent a notice of claim to the Supreme Court registry for filing which lawyer, Tom Buri approved. The registry asked the claimants to change the accepted Notice of Claim to a Petition and a Notice of Appeal 3-months and 1-day after we submitted our Notice of Claim. The registry created the need to attend a Notice of Application to extend the time to Appeal.

The registry refused to accept the Notice of Application to extend the time to Appeal and insisted the claimants must name the Gitanmaax Band as a respondent to the appeal, even though the claimants wished only to appeal against the ‘KSAN association. The claimants repeatedly explained to the registry staff that they did not wish to appeal against the Band, but only against the ‘KSAN association. The registry told the claimants their Notice of Application to extend the time to Appeal would be rejected again unless they named the Band as a respondent.

The claimants revised the Notice of Application to extend the time to Appeal to include the Band and it was filed. The Band sent counsel to that application to argue against it, and succeeded.

At that hearing, we complained to the judge the Band shouldn’t be allowed to argue against us, on ' KSAN ’s behalf, when they were separated from them in Judge Sudeyko’s decision. [ 4 ] Claim 18162 states the Claimants suffered the following damages on August 28, 2017: Description of Amount Claimed: Amount Claimed Lost time and money for Mabel Forsythe when the court told us to add the ‘KSAN board members and an employee to our case before dismissing them, wasting 10 months. $ 820.25 Myron Barr’s legal fees. $ 3,634.02 This amount is what we were trying to appeal. $ 8,451.00 Lost ‘KSAN Association award.

We would like additional interest from November 21, 2017 to today. TBD $ 3,874.27 Damages for Mabel Forsythe who wasted 3-years after ‘KSAN society status dissolved and Melanie Forsythe who wasted a thousand hours pursuing justice. $ 9,087.17 Total Amount Claimed in Debt: $25,866.71 [ 5 ] On November 21, 2018, the Province filed a Reply denying liability for Claim 18162 and asked it be dismissed. [ 6 ] On January 22, 2019, the Province filed an Amended Reply to Claim 18162, in which it made the following admissions: a.

The Claimants sought recovery they alleged was owed to them from a consignment of moccasins in Hazelton Small Claims Court File 16980 against ‘KSAN [Association] and the Gitanmaax Band; b. The Claimants consulted the court registry staff (the “Registry Staff”) to inquire about the process for appealing the outcome of Court File 16980; and c. The BC Supreme Court heard and dismissed the Claimants’ appeal of Court File 16980. [ 7 ] In its Amended Reply, the Province maintained Claim 18162: a. disclosed no cause of action known to law; b. constituted an abuse of process;

c. was completely defensible under the Crown Proceeding Act ; d. did not establish the substantive elements necessary for a claim in tort; and e. the Claimants’ loss, which was not admitted, was not attributable to any action of the Province, its servants or agents. [ 8 ] By way of a notice issued January 7, 2019, the Court Registry referred Claim 18162 to a settlement conference which took place on February 5, 2019, before Judge Hoy. The Province maintained its position Claim 18162 disclosed no reasonable cause of action and should be dismissed. The Province stated that prior to settling a claim against it, the Attorney General must certify (

a) the claim could result in an order for the payment of money by the government, and (

b) it is in the public interest to settle the claim: Crown Proceeding Act , s. 14(1) .

In the circumstances, Claim 18162 could not result in a payment order, therefore the Province was statutorily precluded from offering to settle the claim. [ 9 ] On March 1, 2019, the Claimants filed an Amended Notice of Claim 18162 seeking the following damages: Description of Amount Claimed: Amount Claimed Lost time and money for Mabel Forsythe when the court told us to add the ‘KSAN board members and an employee to our case before dismissing them, wasting 10 months. $ 820.25 Myron Barr’s legal fees. $ 3,634.02 This amount is what we were trying to appeal. $ 8,451.00 Lost ‘KSAN Association award.

We would like additional interest from November 21, 2017 to today.

TBD [See Forsythe Affidavit, Exhibit 40A] $ 3,874.27 Damages/ shame for Mabel Forsythe who wasted 3-years after ‘KSAN [Association’s] society status dissolved and Melanie Forsythe who wasted a thousand hours pursuing justice. [$18,033.46 = $9,087.16 (wasted time) + $8,946.29 (shame)]. $18,033.46 Total: $34,813.00 Filing Fees: $ 187.00 Total Claimed in Debt: $35,000.00 [ 10 ] The damages for shame relates to the Claimants’ February 25, 2019 application to the Wet’suwet’en Gitdumden Clan, for permission to amend the Notice of Claim 18162 to: . . . include $5,000 for shame for a possible shame feast, $2,000 (one thousand for Mabel and $1,000.00 for Melanie) more for a Supreme Court Master implying Timberwolf and her daughters were liars, before he dismissed our case on June 14, 2019, or a total of $8,946.29 for compounding disrespect and errors by court staff into a shame upon the Forsythe’s. [ 11 ] Melanie Forsythe’s February 25, 2019 correspondence to the Gitdumden Clan sets out the history of her and her mother’s attempts to recover monies owed to them from the 'KSAN Association for moccasins and other crafts they had given to the 'KSAN Association on consignment: Exhibit 1. [ 12 ] On February 26, 2019, Jeff Brown, Madeek and Fred Tom, Gisday’wa, on behalf of the Gitdumden Clan, wrote to Timberwolf, Mabel Forsythe approving her request to amend Claim 18162.

The Gitdumden Clan representatives state: After your daughter’s Melanie Forsythe thorough presentation at the Gitdumden Clan’s meeting on February 25, 2019 we have carefully read through the letter and the affidavit exhibits. We agree that the legal system and its employees did make errors that cost you the majority of your case. We agree that several judges, lawyers and clerks made errors, in part, because they, according to Melanie Forsythe, didn’t listen to you. We see, with the evidence presented to us that you, Timberwolf and your advocate daughter, Melanie were treated disrespectfully.

We agree the accumulative disrespect has indeed turned into a shame under Wet’suwet’en Law. We support you amending your claim against . . . Her Majesty the Queen in Right of the Province of BC, for shame brought upon you for the maximum of $8,946.29. We can discuss a possibility of a future shame feast after your case is resolved.

See Exhibit 2. [ 13 ] I note Exhibit 63 of the Forsythe Affidavit includes an Office of the Wet’suwet’en Employee Timesheet indicating Melanie Forsythe is a Gitdumden Clan Liaison. [ 14 ] On March 19, 2019, the Province filed an Application to a Judge asking Claim 18162 be dismissed on the basis it: a. was an abuse of process; b. was not authorized under the Crown Proceeding Act ; and c. did not disclose any reasonable grounds or a triable issue. [ 15 ] The Province’s dismissal application came on for hearing before me on April 2, 2019. Mable and Melanie Forsythe were self- represented and the Province by Mr. N.

Healey, Articled Student, and his supervising counsel, Ms. A. Glen. The Province relied on oral and written submissions and the following authorities:

Case Law Cooper v. Hobart, 2001 SCC 79 Edwards v. Linco Enterprises Ltd., [1994] BCJ No. 2079 R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 Taylor v. Canada (Attorney General), (FCA), [2000] 3 FC 298 Toronto (City) v. CUPE, Local 79, 2003 SCC 63 Watch Lake North Green Lake Volunteer Fire Department Society v. Haskins, 2010 BCPC 114 Legislation Crown Proceeding Act, RSBC 1996, c. 89 Small Claims Act, RSBC 1996, c. 430,

Section 2 Small Claims Rules, BC Reg 261/93, Rules 7(14) & 16(6)(o) [16] The Province’s written submissions form part of its March 19, 2019 application. The Province’s overarching argument is one ofjurisdiction and has not adduced any evidence at the hearing of their dismissal application. [17] In support of their defence to the dismissal application, Mabel and Melanie Forsythe rely on: a. the affidavit of Mabel Forsythe sworn and filed on November 6, 2018, attaching 63 exhibits (the “Forsythe Affidavit”); b.

Exhibit 1, the Claimants’ February 25, 2019 application to the Gitdumden Clan, seeking approval to amend Claim 18162; c. Exhibit 2, the Gitdumden Clan’s February 26, 2019 correspondence indicating its approval to the Forsythes amending Claim18162; and d. Exhibit 3, the Claimants’ written argument submitted at the hearing on April 2, 2019. [18] At the conclusion of the April 2, 2019 hearing, I reserved my decision. These are my reasons for judgment.

Materials Relied Upon: [19] In order to assess the merits of the Province’s dismissal application, I have to contextualize Claim 18162 in relation to itspredecessor lawsuits. I have set out below a chronology of events I have gleaned from the following sources: a. the court record in Claim 18162; b. the court record in Claim 16980; c. the court records in Supreme Court files 17706 and 17785; d. the pleadings filed in Provincial Court files 16980 and 18162 and Supreme Court files 17706 and 17785; e. Judge D.M.D.

Stewart’s decision and written Reasons for Judgment handed down on August 28, 2015, in Claim 16980 (“JudgeStewart’s Judgment”); f. Judge Sudeyko’s decision and written Reasons for Judgment handed down on February 9, 2016 together with a Corrigendumfiled on December 21, 2017 (collectively, “Judge Sudeyko’s Judgment”); g. Mable Forsythe’s November 6, 2018 Affidavit filed in Claim 18162; h.

Exhibits 1, 2, and 3 in in Claim 18162; and i. the parties’ written and oral submission delivered in the April 2, 2019 hearing of the Province’s dismissal application of Claim18162. [20] Neither party provided transcripts of any previous court proceedings referenced in their submissions.

This includes the dismissalapplication in Claim 16980 (July 8, 2015), the trial of Claim 16980 (November 12, December 14 and 16, 2015), the hearing of the LeaveApplication in SC 17785 (June 14, 2017), the correction application hearing in Claim 16980 (December 19, 2017), the hearing of thePetition in SC 17706 (February 2, 2018); and the Payment Hearing (February 26, 2018) in Claim 16980. Background Information: [21] I have endeavoured to set out below a chronology from the materials before me. [22] Mabel Forsythe is the mother of Melanie Forsythe. Both are claimants in Small Claim Court Files 16980 and 18162.

They arethe Petitioners and Plaintiffs in Supreme Court actions 17706 and 17785, Smithers Registry. In this decision, for consistency, I will referto them as the Claimants.

[ 23 ] Mabel and Melanie Forsythe are members of the Wet’suwet’en First Nation. Mabel Forsythe is a Wet’suwet’en Wing-Chief, Timberwolf. They both reside in Smithers, BC. [ 24 ] The Claimants are artisans who manufacture crafts for sale. Mabel Forsythe’s handmade moccasins are renowned for their excellent quality. She makes her moccasins out of commercially tanned hides or moose hides tanned by local craft persons. She trims the moccasins with rabbit fur and decorative beads.

They are expensive moccasins to make and have a high market value. [ 25 ] Melanie Forsythe makes and sells beaded jewelry and other traditional crafts. [ 26 ] For many years the Claimants contracted with the ‘KSAN Association (the “Association”) to sell their crafts on consignment in the gift shop situated at the ‘KSAN Historical Village (the “Historical Village”) located near Gitanmaax, BC. [ 27 ] The Historical Village is a cultural centre which includes a replicated ancient Gitxsan village, a museum, and a gift shop.

The Gitanmaax Band (the “Band”) owns the land and buildings comprising the Historical Village. [ 28 ] Until March 7, 2014, the Association operated the Historical Village under a lease agreement with the Band. The Association was a registered society until its dissolution on September 1, 2015. Its purposes, as set out in its constitution and by-laws, included running the museum in the Historical Village and protecting its cultural artifacts. [ 29 ] The Association failed to make its lease payments owing to the Band over an extended period. It also failed to pay its debts generally.

When the heat and electricity were about be cut-off, the Band took action to protect the museum and its artifacts. On March 7, 2014, the Band terminated its lease and took over the operation of the Historical Village. [ 30 ] Part of the Historical Village’s operations included the gift shop which sold traditional crafts on consignment from local artisans. [ 31 ] On May 21, 2014, the Band returned to the Claimants, all of their unsold consignment items except for a beaded ring, for which the Band claimed to have paid Melanie Forsythe, and a beaded gun case, which went missing.

Notice of Claim 16980: [ 32 ] On August 13, 2014, the Claimants filed their originating Notice of Claim in the Provincial Court of British Columbia (Small Claims Court) File 16980, which they subsequently amended on August 19, 2014, October 15, 2014, and April 9, 2015 . At that time the Band had taken possession of the Historical Village and its assets. [ 33 ] The originating Notice of Claim 16980 named the Band and Association as defendants. Although it was subsequently amended three times, the Province was never a defendant or a third party in those proceedings.

There was no allegation the Province or any of its servants or agents had any involvement in Claimants’ dealings with the Association or the Band. [ 34 ] Also on August 13, 2014, in support of their Notice of Claim 16980, the Claimants filed a search with the BC Registry Services confirming the Association was a registered society incorporated on May 31, 1968, dissolved on September 27, 1982 and restored on July 26, 1983. The Association filed its 2012 annual report and held its last annual general meeting on February 18, 2013.

At that time the Association had six directors and was not in liquidation. [ 35 ] In their originating Notice of Claim 16980, the Claimants claimed the Association and the Band owed them $13,691.95, inclusive of costs. Claim 16980, states: The ‘KSAN Association Gift Shop (‘KSAN), taken over by new management has refused to pay the Claimants for their sold consignment items from the previous management. Even though the last 'KSAN payment to us on May 31, 2013 bounced we provided more handicrafts on July 17, 2013. Staff gave no indication the Shop was in financial trouble.

When Mabel Forsythe found out about 'KSAN’s predicament she contacted them several times. Each time 'KSAN staff promised her that she and her daughter would be paid for years worth of consignment sales. ‘KSAN closed. The Gitanmaax Band reopened 'KSAN in March 2014 profiting from existing merchandise including Mabel Forsythe’s moose hide moccasins and Melanie Forsythe’s beaded jewellery. Since reopening 'KSAN sold more of our pieces and made no attempt to pay us. When we picked up all of our items on May 21, 2014, a 'KSAN manager told us staff were paid with store merchandise when their pay cheques bounced.

We weren’t given that option. The Gitanmaax Band won’t take any responsibility for the previous management, and its issues. [ 36 ] On August 19, 2014, the Claimants’ Amended Notice of Claim 16980 to include additional invoices bringing the total amount claimed, inclusive of costs, to $17,821.45. [ 37 ] In a nutshell, Claim 16980 against the Association was for debt relating to the Claimants’ consignment items the Association either sold or retained.

The Claimants’ Claim 16980 against the Band was threefold: a. by taking over the operation of the Historical Village the Band became a “successor” to the Association and therefore responsible for the Association’s debt to the Claimants; b. when it took over the operation of the Historical Village the Band effectively denied the Claimants a dissolution remedy against the Association, making the Band responsible for the Claimants’ loss; c. the Band failed to account or compensate the Claimants for property belonging to the Claimants that came into the Band’s possession and control after it terminated the Association’s leases of the Historical Village.

[ 38 ] On September 2, 2014, the Band’s legal counsel, Myron Barr, filed a Reply in Claim 16980, stating the Band had returned all of Claimants’ inventory on May 21, 2014, with the exception of a beaded ring sold during the time the Band operated the gift store. The Band gave Melanie Forsythe a cheque in the amount of $12.00 on May 2, 2014, for the sale of this ring. The Band maintained any money owing to the Claimants was a debt of the Association. [ 39 ] The Association did not file a Reply or participate in the Provincial Court 16980 proceedings or the Supreme Court 17706 or 17785 proceedings.

Under Rule 3(4), Provincial Court Small Claims Rules , BC Reg 261/93 , the Defendants had 14 days in which to file a Reply, failing which the Claimant could apply to the registrar under Rule 6 for a default order. [ 40 ] On October 8, 2014, Judge Birnie presided over a settlement conference of Claim 16980. The Claimants attended on their own behalf and Diane Shanoss attended on behalf of the Band. Ms. Shanoss was the Band’s executive director. No one attended on behalf of the Association.

At that time, Judge Birnie made the following order (the “Consent Order”): By consent, the Gitanmaax Band will hold all assets of the ‘KSAN Association currently in its possession and not release them or dispose of them until this matter is concluded without further order of the Court. [ 41 ] On October 15, 2014, the Claimants filed an Amended Notice of Claim 16980 adding the Association ’s seven directors as individually named defendants and increasing the total amount claimed to $20,554.92, inclusive of costs (Mabel Forsythe claim was for $14,977.27 and Melanie Forsythe’s claim was for $5,283.95).

The October 15, 2014 Amended Claim 16980 stated the loss occurred between April 22, 2003 and May 21, 2014. It states: • Manager Laurel Smith-Wilson on behalf of the 'KSAN Association (Assn) Gift Shop promised Mabel Forsythe, several times that she and her daughter, Melanie Forsythe would be paid for years worth of consignment sales before the shop was closed. • July 31st, 2012 was Mabel’s last payment for her moose hide moccasins and 11/08/12 was daughter’s for her beaded jewellery. Until we had all our products back we weren’t able to get an accurate inventory count.

It was then we realized the 'KSAN Association’s numbers were not correct, which exempts us from the 2-year time limit. • The 'KSAN Association doesn’t meet the requirements for a Voluntary Dissolution, so we maintain the Gitanmaax Band is the 'KSAN Association’s successor. [ 42 ] The Claimants maintain Judge Birnie advised them to amend Claim 16980 to include the Association directors.

There is no mention of any such directive it the court record. [ 43 ] As of October 15, 2014, the defendants to Claim 16980 included the Association , the Band and the Association ’s directors: Wendy Blackstock, William Blackwater, Megan M. Cassidy, Ray C. Jones, Frank Lindsay, Arlene E. Ness, Helen P. Rubinato. On October 29, 2014, the Claimants served all nine defendants with the October 15, 2014 Amended Notice of Claim 16980.

The Claimants say this process cost them $96.39. [ 44 ] On November 4, 2014, Wendy Blackstock (through her legal counsel, Sara Dubinsky of Lidstone & Company) filed a Reply to Claim 16980 admitting she was a director of the Association, but denying any personal liability or involvement in the matter. [ 45 ] On November 21, 2014, Frank Lindsay filed a Reply in Claim 16980, claiming the Association directors’ term of office expired in the spring of 2014 and the Association’s assets and operation were taken over by the Band. Mr.

Lindsay denied any knowledge as to what transpired after that time. [ 46 ] Directors Arlene Ness and Megan Cassidy said they had resigned as directors of the Association in the fall of 2012. [ 47 ] On March 5, 2015, the Court Registry notified all nine defendants of a settlement conference in Claim 16980 scheduled for 1:30 pm on April 8, 2015, in the Hazelton Provincial Court. [ 48 ] Except for the beaded gun case, the beaded ring, and any other consignment items that had yet to be accounted for, the amounts set out in the Amended Claim 16980 relate primarily to debts owed for the Association’s sale of the Claimants’ consignment items prior to March 7, 2014 (when the Band terminated the Association’s lease and took over operation of the Historical Village). [ 49 ] On April 8, 2015, Judge Bayliff presided over a second settlement conference in Claim 16980.

The Claimants attended on their own behalf, Diane Shanoss attended on behalf of the Band, Wendy Blackstock was represented by legal counsel, Ms. Dubinsky; Ray Jones and Frank Lindsay attended in person and were self-represented. No one appeared on behalf of the Association . At the conclusion of the settlement conference, Judge Bayliff adjourned the proceedings to the Judicial Case Manager to

schedule a two day trial and a one- half day hearing of the defendants’ dismissal application. [ 50 ] On April 9, 2015, the Claimants filed an Amended Amended Notice of Claim 16980 claiming a combined debt and costs totalling $22,266.19. Mabel Forsythe claim was for $14,237.77 + $2,287.00 and Melanie Forsythe claim was for $5,283.95 + $12.00. [ 51 ] The Amended Amended Notice of Claim 16980 also added Laurel Smith-Wilson as an individually named defendant.

Laurel Smith-Wilson was the executive director of the Association and the manager of its operations while it was active. [ 52 ] The Claimants say Judge Bayliff advised them to add Laurel Smith-Wilson as a defendant to Claim 16980. The court record does not indicate any such order or direction. [ 53 ] As of April 9, 2015, the Defendants in Claim 16980 were: (

a) Association; (

b) Band; (

c) seven individually named directors of the Association; and (

d) the Association’s executive director. [ 54 ] On April 20, 2015, Melanie Forsythe filed Certificates of Service indicating she served all ten defendants with the Amended

Amended Statement of Claim 16980. In doing so, the Claimants incurred an expense of $105. [ 55 ] On April 22, 2015, Frank Lindsay filed a Reply reiterating the Association directors’ term of office expired in the spring of 2014. He states, “in the spring of 2014, by hostile takeover, the assets and operations were taken over by the Band office.” [ 56 ] On May 7, 2015, Laurel Smith-Wilson’s legal representative, Zachary Blanche of Giddings & Company, filed a Reply admitting Laurel Smith-Wilson was an Association employee and the Claimants contracted with the Association to sell their consignment items.

Laurel Smith-Wilson denied she was personally a party to any agreement between the Claimants and other defendants. Application to Dismiss Claim 16980: [ 57 ] On May 13, 2015, the Court Registry produced a Notice of Trial indicating the defendants’ applications to dismiss Claim 16980 would proceed on July 8, 2015, and the trial on November 2 and 3, 2015. [ 58 ] On June 25, 2015, Wendy Blackstock, through her legal counsel, filed an Application to a Judge to dismiss Claim 16980 against her personally. Her application stated, “No facts have been pleaded which disclose a basis for attaching liability to Ms.

Blackstock in her personal capacity.” [ 59 ] Also on June 25, 2015, the Band’s legal counsel filed an application seeking Claim 16980 be dismissed against Band. In support of its application, the Band filed the affidavit of its executive director, Dianne Shanoss, sworn that same day. In her affidavit, Ms. Shanoss states, among other things: a. In March 2014, when the Band terminated its lease the Association was in arrears in the amount of $44,000, which it had no prospect of paying; b. On May 9, 2014, the Band conducted an inventory of the items on consignment for sale in the gift shop; c.

On May 21, 2014, the Claimants attended at the gift shop and the Band returned to them their unsold consignment items; d. The Band had sold only one item belonging to the Claimants, which was a beaded ring for which Melanie Forsythe was paid; and e. As of May 8, 2015, the Association was still an active society, although its last annual report filed was 2012. [ 60 ] The Band filed an application to dismiss Claim 16960 as did Mr. William Blackwater, on behalf of himself and all the individually named defendants. The application came before Judge D.M.D. Stewart on July 8, 2015.

The Claimants attended the application hearing on their own behalf; the Band was represented by Mr. Myron Barr, a lawyer from West Vancouver, Ms. Blackstock and Mr. Blackwater were represented by legal counsel, Ms. Sarah Dubinsky, of Lidstone & Company, also a Vancouver law firm, and Megan Cassidy (Olson), Frank Lindsay and Ray Jones appeared on their own behalf. No one appeared on behalf of the Association. On July 8, 2015, in an oral judgment, Judge Stewart dismissed Claim 16980 against all seven individually named Association directors and its executive director, Laurel Smith-Wilson.

Judge Stewart reserved judgment on the Band’s application to dismiss and provided his decision and written reasons on August 28, 2015. [ 61 ] In dismissing the Claim 16980 against the individual Defendants, Judge Stewart stated: [28] The Claimants conceded that there were no additional facts specific to the actions of the individual Directors to allege or particularize.

The Claimants further conceded that there was no basis for the claims against any of the individual directors or employees. [29] These concessions from the Claimants, are consistent with the facts plead, and the additional facts provided in submissions. [ 62 ] On May 8, 2015, the BC Registry Search indicated the Association was vulnerable to administrative dissolution under s. 102 of the Society Act , RSBC 1996, c. 433 (repealed on November 26, 2016), for failing to file its annual reports. If this was a concern raised at the July 8, 2015 dismissal hearing, it was not referenced in Judge Stewart’s Judgment.

Nevertheless, as Judge Stewart noted, at para. 34, the Claimants’ did turn their mind to the issue of dissolution in the August 19, 2014 Amended Notice of Claim 16980, as follows: The 'KSAN Association doesn’t meet the requirements for a Voluntary Dissolution, so we maintain the Gitanmaax Band is the 'KSAN Association’s successor. and in the Claimants’ submissions, at para. 36: . . . Since the Band took over operations, a liquidator, under

section 123 of the Society Act , cannot be appointed when the time comes. The Band is also taking profits for themselves from the 'KSAN site in violation of the Society Act. [ 63 ] In his Judgment, Judge Stewart’s notes, at para. 51, the Claimants were in a position to obtain default judgment against the Association. He states: [51] The Claimants are currently in a position to obtain a default judgment against the Association.

If that judgment were obtained in the claimed amount of $22, 545.17, the Claimants could avail themselves of the remedies of the Small Claim Rules 11 to 13, respecting payment and collection of judgments, including seizure and sale of assets. Here the Claimants submit that the assets of the Historical Village are owned by the Association. The Band disputes this. Further, the Claimants’ submit the Association (not the Band) is entitled to the ongoing revenues of the operation of the Historical Village.

In the context of execution, any profits or personal property retained by the band, and allegedly due to, or owned by the Association, could be argued to be garnishable or exigible. [ 64 ] In denying the Band’s application to dismiss Claim 16980, Judge Stewart goes on to state, at para. 58, of his Judgment:

[58] Finally, given it is essentially concluded that judgment against the Association on the Association Debt Claim will be granted in default, efficiency favours hearing evidence on the contested claims of ownership of the assets of the “Historical Village”, in a single proceeding. The Band asserts that it owns the buildings and all other assets of that Village. The Claimants contest this.

In particular they assert that the Association owns the buildings, the contents of the museum, the intellectual property of the operation, and the business itself, and that the Band’s operation of the Village is not as a owner or landlord, but as a successor in the administration of the Association.

Whether that evidence is relevant to a Successor Claim as advanced, or relevant to probable execution remedies against the Association, it is essentially the same evidence and will actually result in a considerable efficiency for the Court and both remaining Parties to have it considered in a single proceedings. [ 65 ] As a result of Judge Stewart’s August 28, 2015 decision, the Association and the Band were the only remaining defendants on Claim 16980. Judge Stewart directed the parties to

schedule a further Settlement Conference and ordered the Band to bring copies of any and all documents in its possession, relevant to the ownership of the assets and operations of the Historical Village. [ 66 ] Judge Stewart did not make an award of costs against the Claimants in favour of the successful applicants. [ 67 ] On September 1, 2015, the Registrar of Companies dissolved the Association administratively for its failure to file its annual report for over two years (see s. 102(1) of the Society Act , RSBC 1996, c. 433 , repealed on November 26, 2016).

The Claimants learned of its dissolution from Myron Barr’s July 4, 2017 correspondence to them: see Forsythe Affidavit, Exhibit 22. Mr. Barr also provided the Claimants with a copy of a search he conducted verifying the Association’s dissolution. [ 68 ] On September 15, 2015, Judge Stewart presided over a settlement conference of Claim 16980. The Claimants attended on their own behalf; Diane Shanoss and Myron Barr attended on behalf of the Band; no one appeared on behalf of the Association. Claim 16980 did not settle and it advanced to trial.

The Trial of Claim 16980: [ 69 ] On October 8, 2015, Melanie Forsythe served Laura Smith-Wilson with a Summons to attend at and testify at trial, which Ms. Smith-Wilson honoured. [ 70 ] On November 2, 2015, the Claimants and the Band attended at the Hazelton Provincial Court for the first day of trial of Claim 16980 before Judge Sudeyko. The trial commenced but did not conclude and continued on December 14 and 16, 2015.

The Claimants were self-represented; the Band was represented by its legal counsel, Myron Barr; and no one appeared on behalf of the Association. [ 71 ] On the first day of the trial of Claim 16980, Judge Sudeyko ordered the parties to produce and share documents, which included those belonging to the Association which were now in the possession and control of the Band. The trial did not continue on November 3, 2015, as originally scheduled because of this hiatus.

Instead, the trial continued on December 14 and 16, 2015. [ 72 ] At the end of the trial on December 16, 2015, Judge Sudeyko reserved his decision until February 9, 2016. Judge Sudeyko’s Judgment was lengthy and thorough. He identified the issues before the Court on page 3 as follows: a. How to determine the debt, if any, owed by the Association to the Claimants? b. Can the Band be held liable for any debts of the Association as a “successor”? c. Has the Band takeover kept the Claimants from pursuing the dissolution of the Association? d. Did the Band fail to account for the Claimants’ property after termination?

Judge Sudeyko’s Judgment on the Association’s debt to the Claimants [ 73 ] Judge Sudeyko found the Association owed Mabel Forsythe $1,361.20 and Melanie Forsythe $739.75 for consignment items which had neither been returned nor paid for. In his Corrigendum released on December 27, 2017, Judge Sudeyko corrected a couple of arithmetic errors in his original decision which increased the amount owing by the Association to Mable Forsythe from $1,361.20 to $2,661.20. [ 74 ] In para. 35 of his decision, Judge Sudeyko, denied Melanie Forsythe’s claim prior to the end of 2008.

He concluded on her own evidence and that of Ms. Wilson-Smith, that Melanie Forsythe reached an agreement with the Association to settle disputed sums outstanding at the time. [ 75 ] Judge Sudeyko’s also rejected the Claimants’ calculations as to the amount owing to them. Judge Sudeyko states at paras. 48 and 49 of his decision: [48] I recognize the seemingly careful calculations of apparent loss done by Melanie Forsythe on her mother’s behalf. However, I have found those calculations to be in error.

That is because Melanie Forsythe wrongly concluded on a number of occasions that the invoices referring to consignment items represented additional craft items brought to the gift store, when those invoices actually confirmed payment for sold consignment items. Those invoices have, in almost all cases, purchase order or “PO” numbers that would only accompany a sale and payout. [49] A correction of that misinterpretation has the double effect of not only reducing the consignment side of the ledger, but of also increasing the payout side of the ledger.

That was particularly prevalent in the calculations for 2005, but also elsewhere. I have included an Appendix to these reasons that shows my calculation for Mable Forsythe’s claim in more detail and offers some explanation. Judge Sudeyko’s Judgment on successorship [ 76 ] Judge Sudeyko found Band own the Historical Village site and held the museum artifacts in trust on behalf of the Gitxsan

people. Until March 7, 2014, the Association operated the Historical Village under a lease agreement with the Band. [ 77 ] Judge Sudeyko held (at para. 60) the Band had clear grounds on the basis of unpaid rent to terminate its lease with the Association and take possession of the leasehold property and premises. Judge Sudeyko did not accept Laurel Smith-Wilson or the Band’s evidence as to the value of the Association’s assets at the termination date: see para. 71 and 95. [ 78 ] Judge Sudeyko reviewed the law of successorship, including the emerging equitable doctrine of successor liability.

He concluded at para. 83, “it is clear that the general rule remains that a successor is not liable for the debts of the predecessor.” Judge Sudeyko could not find on the facts of the case before him the exception to the general rule applied. He concluded the relationship between the Band and the Association was that of landlord and tenant and nothing more. There was no evidence of a joint initiative or enterprise between the two organizations: see para. 87. [ 79 ] Judge Sudeyko concluded the Band was not responsible for Association’s debts.

In reaching this conclusion he held: [88] The takeover of the operation of the Historical Village by the Band is certainly unique in the context of a landlord tenant relationship. However, the need to protect the artifacts of the museum for the Gitxsan people, including the resumption of the gift shop business to off-set that ongoing cost, does not, in my view, support any of the exceptions referred to [ Cooperatieve Centrale Raiffeisen- Boerenleenbank BA v.

Liebig & Keown LLP, 2015 ABQB 628 ] [89] As for the Band’s action in controlling the finances of the Association after the termination and at least during the transition, I find that to be simply the necessary accounting by a landlord to a tenant after termination. In short, there is no evidence the termination and the takeover was intended to defraud or avoid creditors, or that the ultimate ownership remained the same. [90] I also find that, contrary to the suggestion of the Claimants, the evidence does not support a continuation by the Band of a profitable business or the receipt of any significant goodwill.

The Band took over an operation that was in significant debt. [91] While I am not satisfied that there was a true and accurate accounting of the asset of the Association by the Band at the time of the termination and transition, particularly as that relates to the purchase of inventory, I can find no basis in fact or law that would make the Band a successor responsible for the debts of the Association. [92] In

summary, I do not find the Band is liable for any debt of the Association to the Claimants. Judge Sudeyko’s Judgment on the Association’s liquidation [ 80 ] Judge Sudeyko commented the Band’s actions in taking over the Historical Village did not preclude the Claimants from applying to the Supreme Court under the Society Act , SBC 1996, c. 433, (then in force) to wind up the Association and appoint a liquidator.

He did not find the Band responsible to the Claimants for any loss in that regard. [ 81 ] It is clear from Judge Sudeyko’s Judgment that neither the Claimants nor the Band were aware at that time of trial the Association had already been dissolved for over three months. Judge Sudekyo’s Judgment on the Band’s accounting to the Claimants [ 82 ] Judge Sudeyko found the Band owed Mabel Forsythe $2,261.00 and Melanie Forsythe $848.75 for failing to forward to the Claimants two cheques the Association had written but not delivered to the Claimants when the Band took over operating the Historical Village.

Judge Sudeyko found the Band ought to have forwarded these cheques to the Claimants and had it done so there was reason to believe there was sufficient funds in the Association’s bank account to cover the amounts payable.

Judge Sudekyo’s Judgment on the debt, costs, and interest owing to the Claimants [ 83 ] After releasing his Corrigendum, on December 27, 2017, Judge Sudeyko’s final order was as follows: a. the Association pay Mabel Forsythe $2,661.20 in debt, plus $44 costs plus $135.43 in court ordered interest for a total award of $2,840.63; b. the Band pay Mabel Forsythe $2,661.20 in debt, plus $44 costs plus $243.46 in court ordered interest for a total award of $2,548.46; c. the Association pay Melanie Forsythe $739.75 in debt, plus $44 costs plus $37.65 in court ordered interest for a total award of $821.40; and d. the Band pay Melanie Forsythe $846.75 in debt, plus $44 costs plus $91.19 in court ordered interest for a total award of $981.94.

See Forsythe Affidavit, Exhibit 39 [ 84 ] On January 3, 2017, Mr.

Barr sent the Claimants a letter setting out the Band’s offer to pay the Band’s judgment debt conditional upon the Claimants signing a document (the “Release”) releasing and discharging the Band, its Chief and Councillors from: any and all actions, causes of action, claims, suits, debts contracts, demands, damages, interest, expenses or compensation of whatever kind, whether known or unknown, suspected or unsuspected, arising in law or in equity, in contract or tort, or federal or provincial statute, which may or do exist as of the date of this Release, and without restricting the generality of the foregoing, any and all matters arising out of or connected with [their] claim in the Provincial Court of British Columbia, Hazelton Registry, File No. 16980, and the Reasons for Judgment of the Honourable Judge Sudeyko dated February 9, 2016 (the “Judgment”)

The Release went on to state: It is further understood and agreed that for the consideration aforesaid, [the Claimants] will not file any appeal of the Judgment or not make any further claim or take any further proceedings against the Gitanmaax Indian Band, or its Chief and Councillors, in respect to the matters referred to in this Release. The Release document referred to the Band’s judgment debt as consideration for “a final settlement of the Judgment.” The Release further required the Claimants keep the terms of the Release confidential.

Judge Sudeyko’s Judgment made no mention of the Claimants having to provide the Band with a Release. Initially, the Claimants refused to so and the Band refused to pay its judgment debt: see Forsythe Affidavit, Exhibits 22 and 22A. Supreme Court Proceedings [ 85 ] Neither the Claimants nor defendants received Judge Sudeyko’s Judgment until long after it had been delivered. The Band did not receive Judge Sudeyko’s Judgment until October 2016.

The Claimants did not receive it until January 18, 2017. [ 86 ] Shortly after receiving Judge Sudeyko’s Judgment, the Claimants drafted a Notice of Civil Claim seeking orders from the BC Supreme Court to appoint a liquidator for the Association and to “revisit 6 calculation errors” in Judge Sudeyko’s Judgment which they say cost them the majority of their claim. They also sought an order waiving the BC Supreme Court filing fees. [ 87 ] On January 26, 2017, the Claimants consulted with Thomas Buri, Q.C., a local Smithers lawyer.

He commissioned the Claimants signatures on the affidavits they prepared in support of their application for an order waiving the Supreme Court filing fees: see Forsythe Affidavit, Exhibits 24 and 25. The Claimants say Mr. Buri was aware of their intention to appeal Judge Sudeyko’s Judgment and approved their Notice of Civil Claim as drafted. [ 88 ] The Claimants attempted to file the Notice of Civil Claim with the BC Supreme Court Registry in Smithers, BC.

The Terrace Deputy District Registrar returned their Notice of Civil Claim for correction on February 22, 2017, March 29, 2017, and April 27, 2017: see Forsythe Affidavit, Exhibit 19. In the February 22, 2017, Order Return Notice, the Deputy District Registrar states in point 4: I note that part of your claim asks to “ . . . revisit a number of issues seemingly dealt with in the lower court. . .” This may be considered an appeal and would follow different procedures.

You may want to seek legal advice on that or continue to file and leave it in the court’s hands to determine at trial. [ 89 ] In the Order Return Notice dated March 29, 2017, the Deputy District Registrar stated: Good day A Supreme Court Justice reviewed the materials you provided and did not sign the order [to waive fees ] for the following reasons 1. Notice of Civil Claim –

Part 2, paragraph 2 must be filed as an appeal. You may want to seek legal advice on dividing the relief sought appropriately. Paragraphs 1, 3, 4 and 5 can be submitted in a Notice of Civil Claim and you may resubmit the order with a new Claim for a Supreme Court Judge to review. I attach an information package on appeals for your convenience. You may reach me Mon – Thurs, 8:30 a.m. – 4:30 p.m. at 250-638- 2113. [ 90 ] The Claimants mistakenly believed they had to pursue an appeal in the BC Court of Appeal: see Forsythe Affidavit, Exhibit 18 and Exhibit 23,

Part 2, para. 2. They spent 2.5 weeks trying to do so until the Court of Appeal redirected them back to the Supreme Court. The Claimants say their error was induced by the Registry Staff. [ 91 ] The Small Claims Act , RSBC 1996, c. 430 , governs appeals from a Provincial Court order made after a trial. It states:

Part 2 — Appeal Right of Appeal 5

(1) Any party to a proceeding under this Act may appeal to the Supreme Court an order to allow or dismiss a claim if that order was made by a Provincial Court judge after a trial.

(2) No appeal lies from any order of the Provincial Court made in a proceeding under this Act other than an order referred to in subsection (1). Time limit for appeal 6 An appeal must be started within 40 days, beginning on the day after the order of the Provincial Court is made. Notice of appeal 7

(1) A person starts an appeal by filing a notice of appeal in the registry of the Supreme Court that is nearest to the court where the order being appealed was made. [ 92 ] Because Judge Sudeyko’s Judgment had been handed down over 12 months earlier, the Claimants had to seek an extension of time to file a Notice of Appeal under s. 15 of the Small Claims Act , which states:

Variations of time 15

(1) On application, a judge of the Supreme Court may by order shorten or extend the time for doing anything under this Part.

(2) A time limit may be extended even if the application for the extension, or the order granting it, is made after the time limit has expired. [ 93 ] Without an order extending the time for filing an appeal, the Claimants ’ appeal could not proceed. [ 94 ] On or about April 10, 2017, the Claimants resubmitted a Notice of Civil Claim in SC 17706 excising their request to “revisit the lower court order” and sought only the appointment of a liquidator for the Association to “dissolve its assets”: see Forsythe Affidavit, Exhibit 17.

They also submitted a Notice of Appeal if Directions Required in SC 11706: see Forsythe Affidavit, Exhibit 20. [ 95 ] In their April 10, 2017 Notice of Civil Claim, the Claimants stated under

Part 3, in para. 2: The 'KSAN Association is still a registered society, but effectively discontinued after the termination of its release. . . [ 96 ] By way of an Order return Notice dated April 27, 2017, the Deputy District Registrar advised the Claimants that a Supreme Court Justice had reviewed their Notice of Civil Claim and determined the Claimants had to bring their application for the dissolution and liquidation of the Association by way of a Petition, not a Notice of Civil Claim. She states: Good day Ms. Mabel Forsythe and Ms. Melanie Forsythe: A Supreme Court Judge reviewed your Application to waive fees and returned it and the Notice of Claim for the following reasons:

a) An action against a society relying on the Society Act must be brought by Petition, not a Notice of Claim. In reference to the Notice of Appeal if Directions Required, I return it for the following reasons:

a) This is a separate action and must have a new file number; and

b) To appeal, payable is $200 filing fees, $200 security fees and the amount you owe to the other party as ordered. If you’d like to make an application to waive fees on the appeal file:

a) Please file an affidavit and requisition and separate order on the new file (we will assign the number at the time of filing) and

b) Please note that not all fees can be waived. See the attached Applications to Waive Fees package You may want to seek legal advice. You may reach me Mon – Thurs, 8:30 a.m. – 4:30 p.m. at 250-638-2113. [ 97 ] On May 19, 2017, the Claimants filed a Notice of Application in SC 17785 seeking an extension of time to file an appeal of Judge Sudeyko’s Judgment (the “Leave Application”): Forsythe Affidavit, Exhibit 23. It is apparent from the Leave Application the Claimants erroneously believed under the “ Society Act ” they had 40 days from the time they received Judge Sudeyko’s Judgment to file an appeal.

The Claimants attributed the delay which ensued after they received Judge Sudeyko’s Judgment to the actions of the Registry Staff and the advice from their lawyer. [ 98 ] The Claimants say they only wanted to appeal Judge Sudeyko’s Judgment as against the Association. They named both the Band and the Association as Respondents on the Leave Application at the Registry Staff’s insistence. [ 99 ] On June 13, 2017, the Band filed a Response in SC 17785 opposing the Leave Application on both a factual and legal basis. Factually, the Band opposed the Leave Application on the basis of (

a) insufficient notice; (

b) incomplete and irrelevant supporting affidavits; and (

c) lack of evidentiary basis. [ 100 ] In its Response, the Band set out the factors a Court must consider on an application to extend the time for filing an appeal: a. Whether a party as a bona fide intention to appeal; b. Whether a party has demonstrated an undue delay in pursuing that intention; c. Whether the defendant has been unduly prejudiced by the delay; d. Whether the appeal has merit; and e. Whether the interests of justice require a time extension. Antioniak v. Slater Industries Ltd., 2016 BCSC 179 and Christ v. William F.

Murray Personal Law Corporation , 2014 BCSC 1262 [ 101 ] As to the reason for opposing the application the Band states, in part: There is nothing in the [Claimant’s] Affidavits which speak to any of the above listed factors.

In any event, it appears from the Plaintiff’s Notice of Application that there is only one ground of appeal being “6 issues from the lower court including 4 calculation errors, reversing 8 consignment sheets to payouts and omitting the year 2008 which costs us $12,866.75.” As set out in Antioniak and Christ , the Plaintiffs must identify a serious misapprehension of the evidence or a palpable error. The Plaintiffs cannot do so on the evidence filed in this application, and therefore this appeal has no merit and is bound to fail. Moreover, on a careful reading of the Judge’s

decision, the only basis in which he found the application respondent liable to the Plaintiffs were the undelivered cheques. Any “calculation” error that may have been made only affects the amount owed by the Defendant KSAN Association. The Judge found that the application respondent was not liable for any debts of the Defendant KSAN Association.

On that basis alone, the Plaintiff’s application should be dismissed. [ 102 ] I gather from the Band’s response and the Forsythe Affidavit, the Claimants did not file an affidavit in SC 17785 attaching the documentation comprising Exhibits 41 to 43 to the Forsythe Affidavit. The four affidavits attached to the Forsythe Affidavit as Exhibits 24, 25, 26, and 27, support of an order to waive fees and contain information of the Claimants’ impecuniosity.

The Claimants indicate they did not fully comprehend what to expect at the hearing of the Leave Application. [ 103 ] On June 14, 2017, Master Baker heard the Claimants’ application to extend the time to appeal Judge Sudeyko’s Judgment. The Claimants appeared on their own behalf, Myron Barr appeared as counsel for the Band and no one appeared on behalf of the Association. On that same day Master Baker dismissed the Claimants’ Leave Application and ordered the Claimants pay the Band’s costs (“Master Baker’s Judgment”). [ 104 ] The Claimants say at the June 15, 2017 hearing, they protested Mr.

Barr attending and advocating on behalf of the Association for its dismissal. [ 105 ] The Claimants say in their submissions (Exhibit 3) the time delay was the main factor in Master Baker’s dismissal of SC 17785. The Province has not indicated otherwise, however, there are no transcripts of the hearing and the Province was not a party to the Leave Application. [ 106 ] The Band’s Certificate of Costs for the Supreme Court Action 17706 totalled $3,634.02. Judge Sudeyko found the Band was in debt to the Claimants in the amount of $3,319.99 ($2,367.12 to Mabel Forsythe and $952.87 to Melanie Forsythe).

In a letter dated July 4, 2017, Myron Barr offered on behalf of the Band to set off the two amounts and waive the $314.03 remaining outstanding if the Claimants would sign the Certificate of Costs: see Forsythe Affidavit, Exhibit 22. [ 107 ] The Claimants complain Mr. Barr did not include in his calculations court order interest on the Claimants’ monetary award against the Band. If the Claimants were entitled to pre-judgment and post-judgment interest from March 7, 2014 (the date when the Band took over the Association’s operations) to July 4, 2017 (the date of Mr.

Barr’s letter), the pre-judgment interest on $3,319.99 would have been $60.52, and the post judgment interest (from February 9, 2016) would have been $127.81, for a total owing of $3,508.32. Needless- to-say, the interest would continue to accrue until the debt was satisfied, either by payment or agreement. For example if the judgment was not satisfied until February 2, 2018, the pre-judgment interest would remain unchanged at $60.52, but the post-judgment interest would be $182, for a total judgment debt of $3,563.11. [ 108 ] In his July 4, 2017, correspondence Mr.

Barr advised the Claimants he had searched the corporate registry and learned the Association was dissolved on September 1, 2015, and no longer existed. He enclosed a copy of the BC Registry search conducted on June 15, 2017, for their reference. Mr. Barr states, “As such, since KSAN Association no longer exists, it would be pointless for you to attempt to start court proceedings against them for dissolution since it already happened”: see Forsythe Affidavit, Exhibit 22. [ 109 ] The Claimants were distressed at Master Baker’s Judgment which effectively ended their appeal.

They attributed their difficulties in advancing their Supreme Court Claim in a timely or effective manner to (

a) the lawyer they say approved their pleadings which were subsequently rejected by the Court; and (

b) to the Band’s lawyer for opposing their appeal of Judge Sudeyko’s Judgment: Exhibit 3, p. 4; Forsythe Affidavit, Exhibits 31, 32, 62 and 63. [ 110 ] The Claimants further complained to the Deputy Attorney General, Richard Fyfe, about Judge Sudeyko’s Judgment and Master Baker’s Judgment. In his response, Mr. Fyfe advised the Claimants the time for filing an appeal is measured from the date of the judgment not when the parties receive it. Mr.

Fyfe also advised the Claimants they could apply to the Provincial Court and ask the trial Judge to correct certain errors: see Forsythe Affidavit, Exhibits 33 and 34. [ 111 ] Melanie Forsythe created a 37 page document complaining of their loss which they sent to five media outlets, the Town of Smithers, the Office of the Wet’suwet’en, local MLA Doug Donaldson, the local MP, and the deputy Ombudsman and the Provincial Court Chief Judge: Forsythe Affidavit, Exhibits 55 to 63. [ 112 ] On August 3, 2017, the Claimants took steps to appeal Master Baker’s Judgment in the BC Supreme Court.

This included seeking the assistance of legal counsel: see Forsythe Affidavit, Exhibit 28 and 29. [ 113 ] On August 15, 2017, the Claimants filed an Application to the Judge in Claim 16980 asking the Provincial Court to correct five calculation errors in Judge Sudeyko’s Judgment. They amended that Application on December 11, 2017. It states: I would like the Provincial Court to correct five mistakes made by Judge Sudeyko in his February 9, 2016 ruling which cost Mabel Forsythe $10,403.80. We are also asking for interest on the five items listed in our claim.

On January 18, 2016 we got the ruling and we were directed by a lawyer to submit a Notice of Claim that he reviewed and authorized, to the Supreme Court. We submitted it on January 26, 2017. On August 9, 2017 I became aware of this process. On page 13, of the Provincial Court of BC Judge Sudeyko’s Small claims decision the Payout/Return total of $34,909.30 should be $33,909.30. This is a $1,000.00 mistake. On page 32 for July 27, 2005, consignment under the Payout/Return total for the Judge wrote down $1,040.00 it should be $1,979.00 so the $939.00 underpayment remains unpaid.

For the May 18, 2010 consignment drop off the Judge wrote down a total of $2,287.00, which is $2,587.00. This is a $300.00 mistake. The Judge reversed 6 consignment sheets worth $3,579.00 to payouts doubling Mabel’s loss $7,152.00. On page 35, the Judge recognized 3 items from 2013 worth $795.00 that was unpaid to Mabel, so she would like it be added to her total. [ 114 ] On August 29, 2017, the Supreme Court Justice in File 17706, made an order waiving the Claimants’ filing fee under

Schedule 1 of Appendix C.

[115] On August 30, 2017, the Claimants filed a petition in SC 17706 seeking orders to liquidate the Association’s assets and fordamages; interest and costs. The Petition named the Association and the Band as Respondents and sought orders against both parties:Forsythe Affidavit, Exhibit 21. [116] On September 26, 2017, the Band filed a Response to the Petition in SC 17706. The Band asked the Petition be dismissed withspecial costs against the Claimants on the basis (

a) the Leave Application was dismissed on June 14, 2017, and the Claimants did notappeal that decision; (

b) the Association was dissolved on September 1, 2015; (

c) the Claimants filed an Application to the Judge inProvincial Court on August 15, 2017; (

d) the Petition was an abuse of process in that the Claimants were attempting to relitigate mattersthat had already been determined; and (

e) the Claimants filed no affidavits setting out the factual basis of their Petition. In support of itsposition, the Band filed the Affidavit of Dianne Shanoss sworn September 27, 2017. [117] The Claimants attended before Justice Maisonville on December 15, 2017, in Smithers Supreme Court, at which time the matterwas referred to the Judicial Case Manager to

schedule a hearing date. [118] The Claimants’ Application in Claim 16980 filed on August 15, 2017, and amended December 11, 2017, came before JudgeSudeyko for hearing on December 19, 2017. The Claimants attended at the hearing on their own behalf, Mr. Barr appeared on behalf ofthe Band, and no one appeared on behalf of the Association. Judge Sudeyko advised the Claimants and Mr. Barr, his February 8, 2016Judgment was to be corrected to show the amount owing to Mabel Forsythe by the Association was $2,661.20.

On December 27, 2017,Judge Sudeyko issued a Corrigendum to his February 9, 2016 Judgment. [119] On February 2, 2018, the Claimants attended before Justice Mayer in the Supreme Court in Smithers on SC 17706. Mr. Barrattended on behalf of the Band. As of the hearing date, the Association had been dissolved for 28 months (since September 1, 2015). OnNovember 28, 2016, the Society Act, RSBC 1996, c. 433, was repealed and replaced by the Societies Act, SBC 2015, c. 18.

Justice Mayerdismissed the Claimants’ petition (“Justice Mayer’s Judgment”) without costs. [120] The Societies Act incorporates provisions permitting restoration of a dissolved society, either through an application to theregistrar or the Court. In all cases where the application for restoration has to be made to the court, it must be the B.C. Supreme Court:see Societies Act, Division 11. ss. 158 to 166; Practice Direct 52 – B.C.

Supreme Court. [121] In their submissions (Exhibit 3), the Claimants say they unknowingly signed away their right to sue the Band for keeping all theprofits from the sale of the Association’s merchandise. They assert “the court never enforced a court order that was supposed to freezethose assets.” The Claimants’ capitulated and signed the Release so the Band would not pursue them for the monies they owed in costsin excess of the Band’s judgment debt. It is not all clear why they did so given Mr. Barr’s correspondence of July 4, 2017, asks only theysign the Certificate of Costs: see Forsythe Affidavit, Exhibit 22.

Moreover, the Claimants say Mr. Barr’s calculation as to the amount theBand owed on the judgment debt neglected to include court order interest to which the Claimants were entitled. [122] On February 26, 2018, the Claimants and Myron Barr, as legal counsel for the Band, attended before Judge Jackson at theHazelton Provincial Court for a Payment Hearing. Judge Jackson adjourned the Payment Hearing generally given the Association’sdissolution. [123] On November 6, 2018, the Claimants initiated Claim 18162 against the Province.

Legislative Framework: Jurisdiction to dismiss a claim pre-trial [124] The overarching purpose to the Small Claims Act is set out in s. 2: The purpose of this Act and the Rules is to allow people who bring claims to the Provincial Court to have them resolved and to haveenforcement proceedings concluded in a just, speedy, inexpensive and simple manner. [125] This purpose is echoed in the Introduction to the Small Claims Rules, which states, in part: The purpose of these rules is to make it as easy as possible for people to use the courts to resolve their disputes. [126] Rule 7(14)(

i) empowers a judge to dismiss a claim at a settlement conference where, after discussion with the parties andreviewing the filed documents, the judge determines that it: (

a) is without reasonable grounds; (

b) discloses no triable issue; or (

c) isfrivolous or an abuse of process. Rule 7 (14)(

l) empowers a settlement conference judge to make any other order for the just, speedy andinexpensive resolution of the claim. [127] This Court has repeatedly held it has jurisdiction to grant an application to dismiss a claim on an interlocutory application incertain circumstances: Watch Lake North Green Lake Volunteer Fire Department Society v. Haskins et al., at paras. 8-9; Schiller v.Northern Health Authority, 2019 BCPC 60 , at paras. 51-53; Edwards v. Linco Enterprises Ltd. [1994] BCJ. No. 2079 (BCPC);Ibrahim v. MacInnis et al., 2017 BCPC 397 . [128] This Court has jurisdiction to hear an interlocutory application to dismiss a claim outside a settlement conference pursuant toRule 16(6)(

o) of the Small Claim Rules which states: “A judge may make any of the following orders after a hearing … (

o) any other order that a judge has the power to make and notice of which is served on the other party.” [129] In Sigurdur v. Fung and Louie, 2007 BCPC 239 , Judge Skilnick states: [4] One of the functions of a Settlement Conference in Small Claims proceedings is as a cursory test of the merits of the claim. The

Settlement Conference Judge is essentially a gatekeeper whose task it is to keep out those claims which have no merit, those which areunsupported by any evidence (without weighing the existing evidence) and those whose outcome can be easily determined without asignificant expenditure of the court’s time and resources, such as on a point of law. The dismissal of a claim at a Settlement Conferenceis a remedy that should be used with caution and only in clear cases . . . [citations omitted] [130] In Lura v. Jazz Forest Products

(2004) Ltd., 2014 BCPC 14 , Judge Skilnick enumerates the many differentcircumstances in which this Court has dismissed a claim at the settlement conference stage. He states at para. 12 [citations omitted]: [12]

Summary determination of a claim is a remedy which should only be used where it is clear from the facts which are not in issue, orfrom a proper application of the law, or from a combination of the two, what the result will be. While the following is not an exhaustivelist, some of the more common situations when the rule has been applied to prevent a case from proceeding to trial include, among otherthings: a. Where a claim is statute barred or precluded by a limitation period or because of a failure to give notice . . .; b. Where the court lacks jurisdiction over the subject matter of the claim . . .; c.

Claims against the principal of a company which should properly be brought against the company, not the individual . . .; d. Claims that turn on the

interpretation of a statute or regulation . . . ; e. Claims that turn on the

interpretation of a contract . . .; f. Claims brought against the wrong party; g. Claims brought by or against an unincorporated entity . . . ; h. Claims for the cost of attending small claims court . . . ; i. Claims against a lawyer acting on behalf of an opposing party . . .; j. Claims under the Personal Property Security Act . . .; k. Unsupported claims for professional negligence . . . ; l. Claims for solicitor-client costs . . .; m. Certain claims against a strata corporation . . .; n. Where there has been clear abuse of process . . . [131] In R. v.

Imperial Tobacco Canada Ltd., 2011 SCC 42 , the Supreme Court held that pleadings are required to allegematerial facts which, if proven, would make out an actionable claim. In that case, Chief Justice McLachlin articulates the “plain andobvious” test applicable to a motion to strike for not disclosing a reasonable cause of action under what is now Rule 9-5 of the BCSupreme Court Rules. She states at paras. 17 and 22, in part [Citations omitted]: [17] . . . A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses noreasonable cause of action: . . .

Another way of putting the test is that the claim has no reasonable prospect of success. Where areasonable prospect of success exists, the matter should be allowed to proceed to trial . . . . . . [22] A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unlessthey are manifestly incapable of being proven . . . No evidence is admissible on such a motion . . . It is incumbent on the claimant toclearly plead the facts upon which it relies in making its claim.

A claimant is not entitled to rely on the possibility that new facts mayturn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may onlyhope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of theclaim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted. [132] In Schiller v. NHA, Judge W. Lee referenced the “plain and obvious test” set out in Williams v. Simon Fraser University, 2018BCSC 1787 , aff’d 2019 BCCA 41 .

In Williams, the Supreme Court held that when applying the plain and obvious testto an application to dismiss, the Court is not to assume the facts as pled are true if they are no more than speculative and sweepingallegations. However, on the application before it, the Supreme Court considered not only the pleadings as drafted, but also a proposedfurther amendment. [133] The Supreme Court rules do not permit the parties to adduce evidence on an application under Rule 9-5. The Small Claims Rulesimpose no such limitation.

Although the Province has not submitted any evidence, the Claimants have tendered both affidavit anddocumentary evidence. There are many instances where the application judge received and considered evidence before granting thedefendant’s application to dismiss the Notice of Claim: see Hoban Construction Ltd. v. SMS Equipment Ltd., 2018 BCPC 261 ,A. & S. Lui Holdings Inc. et al. v. Slay et al., 2017 BCPC 416 , Ken Greene Trucking Ltd. v. Greene, 2012 BCPC 321; Ezekiel v.Macaulay, 2009 BCPC 372 , and Sczurowski v. Van Strien, 2009 BCPC 405 . [134] This is not a Supreme Court proceeding.

In determining the Province’s application, I cannot lose sight of purposes of the SmallClaims Act which allows for proceedings to be concluded in a just, speedy, and inexpensive manner: Edwards v. Linco Enterprises, atparas. 20 & 21. In Shantz, Gorman and Godfroid, 2012 BCPC 81 , Judge Hamilton stated at paras. 83 and 84 [Citations

omitted]: [83] When considering a pretrial application to dismiss a claim, whether at a Settlement Conference or on an interlocutory application,the court is to consider the pleadings alone and not weigh evidence . . . [84] The judges who have considered these applications in the cases I have cited have emphasized the need to be cautious anddeferential to the claimants for obvious reasons. Most claimants in Small Claims Court are self-represented; their pleadings are drafted bythemselves often without consideration of the legal basis for the claims advanced.

Accordingly, when considering a pretrial applicationto dismiss a claim, judges cannot measure the pleadings against those drafted by counsel where usually the legal basis for the claim andthe alleged cause of action are well articulated. [135] I have reviewed all the materials placed before me by both parties to determine if Claim 18162 ought to be dismissed in whole orin part as having no reasonable prospect of success.

Application to dismiss [136] The Province’s application to dismiss raises a number of legal doctrines, including, abuse of process, collateral attack, judicialimmunity, Crown immunity, good faith, negligence and prima facie duty of care. I will first explain these doctrines and then discuss theirapplication to the matters pled and relief sought in Claim 18162. Abuse of process and the rule against collateral attack [137] At some point the litigation of a dispute must end. Litigants cannot repeatedly make the same claims to court in search of adifferent outcome.

In Canada, the court has at its disposal a number of common law doctrines to effect that result, including the ruleagainst collateral attack and abuse of process. [138] An abuse of process is a flexible doctrine which allows the Court to prevent a claim from proceeding where to do so wouldviolate principles of judicial economy, consistency, finality, and the integrity of the administration of justice: Toronto (City) v. C.U.P.E.,Local 79, 2003 SCC 63, at paras. 35-37. [139] The rule against collateral attack is a species of an abuse of process. It was described by the Supreme Court of Canada in Wilsonv.

The Queen, (SCC) as follows: It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding andconclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not beattacked collaterally — and a collateral attack may be described as an attack made in proceedings other than those whose specific objectis the reversal, variation, or nullification of the order or judgment. cited in Toronto v. CUPE, at para. 33.

Judicial immunity [140] At common law, judges are absolutely immune from any legal action brought against them personally for acts or decisionsarising from a judicial proceeding. This special protection is necessary for judicial independence to protect the public’s interest in a fair,impartial, and independent justice system: Morier and Boily v. Rivard, (SCC), [1985] 2 S.C.R. 716, at para. 87, citingGarnett v. Ferrand (1827), 6 B. & c. 611. [141] In Taylor v.

Canada (Attorney General), (FCA), [2000] 3 F.C. 298 (C.A.), leave to appeal refused, [2000] 2S.C.R. xiv, the Federal Court of Appeal considered the principle of judicial immunity in relation to a complaint against a judge broughtunder the Canadian Human Rights Act. The question was whether the immunity prevented the Canadian Human Rights Commissionfrom inquiring into the complaint. Mr. Justice Sexton noted that judicial immunity promotes the principle of finality of legal proceedingsas well as judicial independence.

He states at paras. 25-29 [Citations omitted]: [25] Litigants turn to courts and judges to resolve difficult problems where all other means of resolving the dispute have failed.Consequently, as the United States Supreme Court held in Bradley v.

Fisher, courts are often asked to decide cases "involving not merelygreat pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings." As that Court alsonoted, such litigation inevitably produces at least one losing party, who is likely to be disappointed with the result. [26] Consider what might happen if judges could be regularly sued for decisions that stirred such disappointment. One potentialconsequence is that a certain end to disputes, one of the primary advantages of resolving disputes by resort to the courts, would neveroccur.

If one action against a judge was dismissed by another judge, the second judge might well be added as a party to the action, and soon, and so on. This consequence was highlighted in Bradley v.

Fisher, where Field J. commented that an appellate judge who decidedthat a judge of an inferior jurisdiction was protected by judicial immunity "would be subjected to a similar burden, as he in his turn mightalso be held amenable by the losing party." [27] Similarly, if judges could be sued by disappointed litigants for damages for allegedly erroneous decisions, every judge would berequired to preserve "a complete record of all the evidence produced before him in every litigated case, and of the authorities cited andarguments presented, in order that he might be able to show to the judge before whom he might be summoned by the losing party . . . thathe had decided as he did with judicial integrity." If a suit was eventually begun against a judge, much of that judge's time and energywould then be devoted to defending the suit, rather than to his or her judicial work.

Already scarce judicial resources would be lost, andcourt cases would take even longer to be heard and to be resolved. [28] Finally, the most serious consequence of permitting judges to be sued for their decisions is that judicial independence would beseverely compromised. If judges recognized that they could be brought to account for their decisions, their decisions might not be based

on a dispassionate appreciation of the facts and law related to the dispute. Rather, they might be tempered by thoughts of which partywould be more likely to bring an action if they were disappointed by the result, or by thoughts of whether a ground-breaking but justapproach to a difficult legal problem might be later impugned in an action for damages against that judge, all of which would be raisedby the mere threat of litigation.

In Lord Denning's words, a judge would "turn the pages of his books with trembling fingers, askinghimself: `If I do this, shall I be liable in damages?'" [29] Accordingly, the basis for judicial immunity is rooted in the need to protect the public, not in a need to protect judges. In otherwords, as Lord Denning explained in Sirros v.

Moore, judicial immunity does not exist because a "judge has any privilege to make mistakes or to do wrong." Rather, he held that judges should be free from actions for damages to permit judges to perform their duty "with complete independence and free from fear." Similarly, in Scott v.

Stansfield, it was explained that judicial immunity is not meant toprotect malicious or corrupt judges, but to protect the public: It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under theprotection of the law independently and freely, without favour and without fear.

This provision of the law is not for the protection orbenefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercisetheir functions with independence and without fear of consequences. [142] In British Columbia, s. 42 of the Provincial Court Act states: [42] Judges and justices have, for things done or not done by them in their official capacity, the same immunities from civil liability asjudges of the Supreme Court have for the things done or not done by them in their capacity as judges of the Supreme Court.

Crown immunity [143] Prior to the enactment of the Crown Proceedings Act in 1974, the Province was protected by the principle of Crown immunity.The Crown could not be held vicariously liable for the tortious acts of its servants or agents because the sovereign could not be deemedto have authorized an unlawful act.

The Crown Proceeding Act abolished that absolute immunity and the Crown became subject to allthe liabilities for torts to which it would be liable if it were a person. [144] Although the Crown Proceeding Act now allows parties to bring civil actions against the Province, it does not authorizeproceedings for any act or omission of Provincial servants or agents carrying out duties of a judicial nature in good faith. Sections 2 and 3of the Crown Proceeding Act states: Liability of government 2 Subject to this Act, . . . (

c) the government is subject to all the liabilities to which it would be liable if it were a person, and (

d) the law relating to indemnity and contribution is enforceable by and against the government for any liability to which it is subject, asif the government were a person. Limitations on proceedings and liabilities 3

(2) Nothing in

section 2 does any of the following: (

a) authorizes proceedings against the government for anything done or omitted to be done by a person acting in good faith whiledischarging or purporting to discharge responsibilities (

i) of a judicial nature vested in the person, or (ii) that the person has in connection with the execution of judicial process; (

b) subjects the government to greater liability for the acts or omissions of an independent contractor employed by the government thanthat to which the government would be subject for those acts or omissions if it were a person; Good faith [145] Good faith is a protean concept. Its meaning is dependent on the type and circumstances of the case in which it is challenged. InDorman Timber Ltd. v. British Columbia, (BCCA), Finch J.A. examined the meaning of the words “good faith” in astatute prohibiting procee

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