McTavish et al. v., 2018 BCPC 392

Citation: McTavish et al. v. 1534 Harwood Street (St. Pierre) Ltd. 2018 BCPC 392 Date: 20180828 File Nos: 1861265, 1861378, 1861379, 1861380, 1861381, 1861382, 1861383, 1861384, 1861385 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Civil Division) File No: 1861265 BETWEEN: COLIN MCTAVISH CLAIMANT AND: 1534 HARWOOD STREET (ST. PIERRE) LTD. DEFENDANT File No: 1861378 BETWEEN: HELEN BANSAL CLAIMANT AND: 1534 HARWOOD STREET (ST. PIERRE) LTD. DEFENDANT File No: 1861379 BETWEEN: DENNIS FRISBY CLAIMANT AND:

1534 HARWOOD STREET (ST. PIERRE) LTD. DEFENDANT File No: 1861380 BETWEEN: JON GRAY CLAIMANT AND: 1534 HARWOOD STREET (ST. PIERRE) LTD. DEFENDANT File No: 1861381 BETWEEN: PATRICK MILLIGEN CLAIMANT AND: 1534 HARWOOD STREET (ST. PIERRE) LTD. DEFENDANT File No: 1861382 BETWEEN: PATRICK MILLIGEN CLAIMANT AND: 1534 HARWOOD STREET (ST. PIERRE) LTD. DEFENDANT File No: 1861383 BETWEEN: PETER HILL CLAIMANT AND: 1534 HARWOOD STREET (ST. PIERRE) LTD.

DEFENDANT File No: 1861384 BETWEEN: HARVEY STONE CLAIMANT AND: 1534 HARWOOD STREET (ST. PIERRE) LTD. DEFENDANT File No: 1861385 BETWEEN: JON GRAY, SHIRLEY GIGGEY, DENNIS FRISBY, and PETER LIN CLAIMANTS AND: 1534 HARWOOD STREET (ST. PIERRE) LTD. DEFENDANT

REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Claimants: R. Argue Counsel for the Defendant: J. Carpick Place of Hearing: Vancouver , B.C. Date of Hearing: August 10, 2018 Date of Judgment: August 28, 2018 INTRODUCTION [ 1 ] The claimants are all residents of an apartment building located at 1534 Harwood Street, Vancouver, B.C. [ 2 ] There is one defendant in all claims, that being a company called 1534 Harwood St. (St.

Pierre) Ltd., which owns the apartment building. [ 3 ] Each of the claimants has filed a claim against the defendant under the Civil Resolution Tribunal Act [SBC 2012] c. 25. (“ CRTA ”) [ 4 ] The defendant has applied to this court to move these claims to the Provincial Court for adjudication. The claimants oppose this. BACKGROUND [ 5 ] The property located at 1534 Harwood Street, Vancouver, BC is an 11 storey, 41 suite residential building. [ 6 ] Each of the claimants has a long term lease of their unit.

The claimants are not owners of their units as may be the case in a strata property. [ 7 ] Each claimant says they have paid money to the defendant pursuant to their lease that was intended to be spent on the property. The full amounts were not spent and so each claimant seeks a refund.

Each of the claimants has filed claims with the Civil Resolution Tribunal (“CRT”). [ 8 ] The amounts of each claim are as follows: Name Court File Claim Colin McTavish 1861265 $2,473 Helen Bansal 1861378 $2,460 Dennis Frisby 1861379 $2,504.42 Jon Gray 1861380 $2,504.42 Patrick Milligen 1861381 $2,218 Patrick Milligen 1861382 $400 Peter Hill 1861383 $2,600 Harvey Stone 1861384 $2,218 Jon Gray Shirley Giggey Dennis Frisby Peter Lin 1861385 $2,500 [ 9 ] The defendant has filed an Application for Exemption to seek an order that the CRT not adjudicate these claims, and that they would be heard by the Provincial Court.

This application is made pursuant to Rule 16.1 of the Small Claims Rules for an order under s. 12.1 of the Civil Resolution Act . [ 10 ]

Section 12.1 of the Civil Resolution Act states:

Provincial Court may order that tribunal not adjudicate tribunal small claim 12.1

(1) The Provincial Court may order that the tribunal not adjudicate a claim that is or purports to be a tribunal small claim if (

a) the tribunal does not have jurisdiction to adjudicate the claim, or (

b) it is not in the interests of justice and fairness for the tribunal to adjudicate the claim. (2) Subsection (1) (

a) applies only if the Provincial Court has jurisdiction over the claim.

(3) When deciding whether it is in the interests of justice and fairness for the tribunal to adjudicate a tribunal small claim or dispute, the Provincial Court may consider the following: (

a) whether an issue raised by the claim or dispute is of such importance that the claim or dispute would benefit from being adjudicated by the Provincial Court to establish a precedent; (

b) whether an issue raised by the claim or dispute relates to the constitution or the Human Rights Code ; (

c) whether an issue raised by the claim or dispute is sufficiently complex to benefit from being adjudicated by the Provincial Court; (

d) whether all of the parties to the claim or dispute agree that the claim or dispute should not be adjudicated by the tribunal; (

e) whether the claim or dispute should be heard together with a claim or dispute currently before the Provincial Court; (

f) whether the use of electronic tools in the adjudication process of the tribunal would be unfair to a party in a way that cannot be accommodated by the tribunal. [ 11 ] The intention of the defendant is that if the order is granted that the CRT not adjudicate the claims, then a further application will be made to the Provincial Court pursuant to Small Claims Rule 7.1(4) to have all claims heard at the same time. [ 12 ] The Civil Resolution Tribunal Act does not contain any provision for having multiple claims heard at the same time. [ 13 ] With this background, the defendant filed its applications.

The applications were essentially identical save for the party name and the amount of the claim. Each application attached a

Schedule A to the application which set out in detail the background to the dispute.

Schedule A comments that “There is no mechanism for joinder of claims under the Civil Resolution Tribunal Act .” [ 14 ] On June 26, 2018, counsel for the defendant received a letter from Richard Rogers, Executive Director and Registrar for the Civil Resolution Tribunal. The letter states in part: The CRT does not participate in applications for exemption made to the Provincial Court. However, the CRT would like to address information contained in

Schedule “A” to the application that is potentially inaccurate. Paragraph 19 of

Schedule “A” indicates that “There is no mechanism for joinder of claims under the Civil Resolution Act .” While there is no explicit mention of “joinder” in the Civil Resolution Tribunal Act (the Act ), subsection 2(2) provides that the CRT is to provide its dispute resolution services in a manner that “(

a) is accessible, speedy, economical, informal and flexible….” In addition, subsections 61(1) and (2) of the Act provide as follows:

(1) Subject to this Act and the rules, the tribunal may make any order or give any direction in relation to a tribunal proceeding it thinks necessary to achieve the objects of the tribunal in accordance with its mandate.

(2) The tribunal may make an order under subsection (1) or, unless otherwise provided, under any other provision of this Act (

a) on its own initiative, (

b) on request by a party, or (

c) on recommendation by a case manager. To support efficient processes and for the convenience of the parties, the CRT does have a process for linking disputes with common claims, issues and parties. If a CRT employee or a party identifies contested disputes that have common attributes (such as the same strata complex in multiple strata disputes or the same respondent in small claims), the disputes will be referred to the CRT case manager.

The case manager will assess whether the commonalities indicate that it might be more convenient for all the parties and more efficient for the tribunal to link the disputes and resolve them together.

The CRT will normally request submissions from the parties on whether or not to link the disputes, but it is ultimately an exercise of the CRT’s authority to manage its dispute resolution process as it determines appropriate. [ 15 ] This letter was sent to counsel for the defendant and a copy sent to 8 of the 9 claimants. [ 16 ] The defendant says that as a result of the letter being sent to the claimants, the CRT has effectively entered into the dispute by advancing a legal argument against the defendant. The defendant submits that at a minimum, the CRT created the apprehension of bias against the defendant.

The defendant says that this is a further reason the CRT should no longer be adjudicating this dispute. [ 17 ] The claimants oppose the application. The claimants say that these matters should remain with the CRT for determination,

especially given the expertise the CRT has with strata matters. The claimants also say that there is no bias and that the June 26, 2018letter was simply an explanation of CRT procedures. ANALYSIS [18] I start with a discussion about the CRT. [19]

Section 2 of the CRTA states: Civil Resolution Tribunal mandate and role 2

(1) The Civil Resolution Tribunal is established, consisting of the chair and other tribunal members appointed in accordance with thisAct.

(2) The mandate of the tribunal is to provide dispute resolution services in relation to matters that are within its authority, in a mannerthat (

a) is accessible, speedy, economical, informal and flexible, (

b) applies principles of law and fairness, and recognizes any relationships between parties to a dispute that will likely continue after thetribunal proceeding is concluded, (

c) uses electronic communication tools to facilitate resolution of disputes brought to the tribunal, and (

d) accommodates, so far as the tribunal considers reasonably practicable, the diversity of circumstances of the persons using theservices of the tribunal.

(3) In fulfilling its mandate, the role of the tribunal is (

a) to encourage the resolution of disputes by agreement between the parties, and (

b) if resolution by agreement is not reached, to resolve the dispute by deciding the claims brought to the tribunal by the parties.

(4) In addition to its responsibilities in relation to disputes brought to the tribunal for resolution, the tribunal may (

a) provide the public with information on dispute resolution processes generally, and (

b) make its online dispute resolution services available to the public generally. [20] In the decision The Owners, Strata Plan BCS 1721 v Watson, 2018 BCSC 164 , the Supreme Court described the CRTas follows: [9] The CRT is an online tribunal with the mandate, under s. 2 of the CRTA, to provide dispute resolution services in relation to mattersthat are within its authority in a manner that is accessible, speedy, economical, informal and flexible; uses electronic communicationtools to facilitate dispute resolution; and encourages the resolution of disputes by agreement between the parties. [10] Under s. 3.1 of the CRTA and the Civil Resolution Tribunal Small Claim Regulation, B.C.

Reg. 111/2017, the CRT has jurisdictionto resolve small claims disputes in the amount of $5,000 or less. [11]

Section 3.6(1) confers jurisdiction on the CRT to resolve strata property claims concerning one or more of the following: (

a) the

interpretation or application of the Strata Property Act or a regulation, bylaw or rule under that Act; (

b) the common property or common assets of the strata corporation; (

c) the use or enjoyment of a strata lot; (

d) money owing, including money owing as a fine, under the Strata Property Act or a regulation, bylaw or rule under that Act; (

e) an action or threatened action by the strata corporation, including the council, in relation to an owner or tenant; (

f) a decision of the strata corporation, including the council, in relation to an owner or tenant; (

g) the exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special generalmeeting. [21] The Court went on to say: [49] The purpose of the CRT is to provide an accessible, flexible and speedy dispute resolution process to parties involved in strataclaims falling within s. 3.6(1) of the CRTA.

The CRT’s online processes and emphasis on facilitated dispute resolution are intended toprovide the parties with a quick and less expensive form of decision making than adjudication in the Supreme Court… [22] I will first deal with the bias allegation raised by the defendant. [23] The defendant referred me to the decision Bajwa v British Columbia Veterinary Medical Assn, [2011] B.C.J. No. 1065, 2011BCCA 265, where the court quoted from an earlier decision of Madam Justice Allan in the same proceedings:

[25] An issue of bias has about it both a factual and a legal aspect. Allan J. in her reasons made reference to a decision of this Court inher discussion of the question of bias: [66] The onus of proving bias lies on the party alleging bias. The test for determining whether a reasonable apprehension of bias existswas considered by Madam Justice Newbury in Finch v. Ass’n of Professional Engineers & Geoscientists (BritishColumbia) (1996), (BC CA), 18 B.C.L.R. (3d) 361 (C.A.), leave to appeal to S.C.C. ref’d, [1996] S.C.C.A.

No. 272: [14] …The test for determining whether a reasonable apprehension of bias arises is well-known and clear: Cory, J. for the Courtin Newfoundland Telephone v. Newfoundland Board of Commissioners of Public Utilities) (1992), (SCC), 4 Admin. L.R.(2d) 121 (S.C.C.), formulated it this way: It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As aresult, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness.

Toensure fairness the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension ofbias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. [at 133;emphasis added]. The same general approach was adopted, although in slightly different terms, by de Grandpre, J. in his dissenting judgment in Committeefor Justice & Liberty v. Canada (National Energy Board) (1976), (SCC), 68 D.L.R. (3d) 716 (S.C.C.).

At p. 735, thequestion was said to be whether “an informed person, viewing the matter realistically and practically -- and having thought the matterthrough” would reasonably apprehend bias on the part of the tribunal. This formulation was recently approved by Lamer, C.J.C. for themajority of the Court in Canadian Pacific Ltd. et al. v. Matsqui Indian Band et al., (SCC), [1995] 1 S.C.R. 3 at 50, andin 1985 by the Court in R. v.

Valente (1985), (SCC), 24 D.L.R. (4th) 161 at 168-9. [15] The word “reasonably” in this context has been interpreted as fixing a factual standard − i.e., as requiring a “probability or areasoned suspicion” of biased judgment (per Laskin, C.J.C. for the majority in Committee for Justice and Liberty, supra, at 733), or a“real likelihood of bias” (per de Grandpre, J., supra, at 736.).

Thus the question is largely factual and objective. [24] Based on this case, the test to be applied is “whether a reasonably informed bystander could reasonably perceive bias on thepart of an adjudicator.” The test does not necessarily require actual bias but also applies to a reasonable perception of bias. [25] In my view, it would be unusual for a representative of this court to write to the parties to clarify procedures of the court. That isessentially what occurred when the CRT wrote to Mr. Carpick, counsel for the defendant, with a copy of the letter sent to the opposingparties.

However, if a party to a Small Claims Court proceedings attended at the Registry with questions about procedure, I wouldanticipate that registry staff would provide that information. [26] The letter from the CRT is intended to clarify a procedural matter.

The letter states that the CRT will review files for commonattributes that may make it more convenient and efficient to link disputes and resolve them together. [27] The letter does not state that a determination has been made for joinder but simply sets out that the CRT will review files forsuch. [28] I am mindful that the CRTA does not have specific legislation to permit files to be heard together, as is found in the SmallClaims Rules or the Supreme Court Civil Rules. [29] The letter describes procedures that are not set forth in formal rules.

The purpose of the letter was to provide information only.The letter does not purport to pre-judge any request to consolidate proceedings. [30] I find that the CRT letter was within the mandate of the CRT to be “accessible, speedy, economical, informal and flexible”, andthat it fell within the CRT’s statutory requirement to encourage the resolution of disputes.

I conclude that the letter from the CRT doesnot create a reasonable perception of bias on the part of the CRT and thus does not support the argument that the various claims cannotbe heard by the CRT. [31] I turn next to the argument by the claimants that the CRT is designed to be a specialized tribunal to deal with strata issues, andthus the claims should remain with the CRT for resolution. [32]

Section 3.6 of the CRTA gives the CRT jurisdiction over a lengthy list of strata property claims. In the decision Yas v Pope,2018 BCSC 282 , the court said of the CRTA: [15] The Act was designed to deal quickly, efficiently and inexpensively with strata matters and to remove a wide swathe of stratadisputes from the dockets of our over-burdened ordinary courts: see Act s. 3.6.

Counsel have informed me, and my own research hasconfirmed, that the members of the CRT have been carefully selected for their specialised expertise, competence and experience withinthe areas of jurisdiction reserved to it. [33] I accept then that the CRT does have expertise to deal with strata issues. The difficulty here though is that we are not dealingwith a strata property. The claimants are all lessees under long term leases with the defendant. The issue will be resolved based on aninterpretation of the lease. There is no consideration of the Strata Property Act or strata bylaws.

Accordingly I reject the argument thatthe expertise of the CRT in strata matters is a relevant consideration in this application. [34] I am left then with a consideration of s. 12.1 of the CRTA. [35]

Section 12.1(3) asks that I consider the following factors, which I will now do so. Is the issue raised by the claim or dispute of such importance that the claim or dispute would benefit from being adjudicated by

the Provincial Court to establish a precedent? [ 36 ] The issue that is being raised is specific just to the 41 residents of 1534 Harwood Street and the defendant. [ 37 ] If the claims are heard separately, a decision in any one claim would set a precedent for the other claims. The precedent value would be more of a persuasive nature based on comity rather than stare decisis , as all cases will be heard by the same decision-making body, whether it be the Provincial Court or the CRT. The precedent value is thus the same whether all claims are moved to the Provincial Court or remain with the CRT.

Has an issue been raised by the claim or dispute that relates to the constitution or the Human Rights Code ? [ 38 ] No Has an issue been raised by the claim or dispute that is sufficiently complex to benefit from being adjudicated by the Provincial Court? [ 39 ] The issue relates to the

interpretation of a lease. Evidence of the past conduct of the defendant may also be relevant. The nature of each claim is simple. Do all of the parties to the claim or dispute agree that the claim or dispute should not be adjudicated by the tribunal? [ 40 ] No Should the claim or dispute be heard together with a claim or dispute currently before the Provincial Court? [ 41 ] There is no claim being made in the Provincial Court.

Would the use of electronic tools in the adjudication process of the tribunal be unfair to a party in a way that cannot be accommodated by the tribunal? [ 42 ] The CRT carries out most of its business online or through other electronic means. [ 43 ] The central issue in these cases relate to the

interpretation of a lease. Credibility does not play a

part in this dispute. The use of electronic tools would not be unfair given the nature of the issue. [ 44 ] I have also considered the following. [ 45 ] Each of the claims involves small amounts of money, although the total monetary exposure to the defendant is significant. [ 46 ] The CRT has jurisdiction over these claims as it is in the nature of a debt claim: CRTA s. 3.1 [ 47 ] There is in both the CRT and this court a procedure to have the claims heard together.

Even if the claims are not heard together, the precedent value of a decision in any one case may simply resolve all the other cases. [ 48 ] Having given consideration to the factors I have set out above, I am unable to conclude that it is not in the interests of justice and fairness for the tribunal to adjudicate the claim. It is my view that these claims should remain with the CRT for adjudication.

SUMMARY [ 49 ] The application of the defendant is dismissed. [ 50 ] I make no order as to payment of expenses. Section 19(4) of the Small Claims Act does not allow for an award of counsel or solicitor’s fees. In any event, there is no provision in the CRTA to allow claims to be heard together and this was a factor in the bringing of this application. There are also very few cases dealing with the CRTA and so there is some value to the public in having this case heard. ________________________ The Honourable W. Lee Provincial Court Judge