Brown v. Coast Capital Management Ltd., 2021 BCPC 12

Citation: Brown v. Coast Capital Management Ltd. 2021 BCPC 12 Date: 20210126 File No: 190394 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ROBIN ANDREW BROWN CLAIMANT AND: COAST CAPITAL MANAGEMENT LTD., and REAL ESTATE COUNCIL OF BRITISH COLUMBIA DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE L MROZINSKI Appearing on their own behalf: R. Brown Counsel for the Defendant: A. Murray, Q.C. Place of Hearing: Victoria , B.C.

Date of Hearing: January 18, 2021 Date of Judgment: January 26, 2021 I. Introduction [ 1 ] On or about March 13, 2019, a one person discipline committee of the Real Estate Council of British Columbia (“the Council”), acting under s. 45(2) of the Real Estate Services Act , S.B.C. 2004, c. 42 (the “ RESA ”), issued an “Urgent Order” suspending the real estate license of the claimant, Robin Andrew Brown, as well as the Brokerage License of Rob Brown & Associates Corp. Pursuant to s. 46(2) (

a) of the RESA , the discipline committee ordered Coast Capital Savings Federal Credit Union (“Coast Capital”) to freeze the Brokerage’s accounts. In turn, Coast Capital froze all of Mr. Brown’s accounts, including his personal account. [ 2 ] Mr. Brown attests to feeling shock when he learned from Coast Capital that it was going to freeze his personal account. The money in that account was, he says, all that he had in the world. It pained him to think the Council, and the discipline committee in particular, treated that fact as if it was nothing. In this claim, Mr.

Brown seeks an award against the Council for punitive damages, as well as damages for pain and suffering, and costs, together totalling $26,000, plus filing fees. [ 3 ] This claim is one of a number Mr. Brown has filed in this Court, and in the British Columbia Supreme Court, against the Real Estate Council of British Columbia (the “Council”) and others in relation to Mr. Brown’s real estate practice, particularly as it existed in or around 2019. As Mr.

Brown describes it, where once he was a successful realtor and real estate broker, he is now unemployed and, as I understand his submissions, effectively homeless. Mr. Brown places much of the responsibility for his current state on the Council. [ 4 ] The Council seeks an order that this claim be dismissed on the grounds it will have no chance of success at trial. The claim, which will be discussed in more detail below, is a claim in negligence against the Council. Mr. Brown alleges the Urgent Order was negligently drafted, particularly as evidenced by Coast Capital’s own erroneous

interpretation of it which resulted in the freezing of his personal account. The Council submits the Urgent Order is clear on its face and no claim in negligence can possibly succeed. The Council submits as well that it is entirely immune from the liability alleged herein pursuant to s. 128 of the RESA , despite Mr. Brown’s latest allegations of bad faith designed, the Council submits, solely to counter its defence of statutory immunity. II. The Issues [ 5 ] The issues in this application are straightforward.

Firstly, with respect to the question of this Court’s jurisdiction to dismiss a claim on an interlocutory application, I have held just recently in Brown v. RE/MAX Select Realty , 2020 BCPC 250 at paras 16 to 19 that such jurisdiction exists. In its submissions, the Council urges the Court to not only find it has this jurisdiction, but to focus on the purpose of the Small Claims Act and Rules that allow for this application to strike. In particular, as the court in Roberts v.

Hamilton , 2018 BCPC 24 at para 17 , the function of a judge hearing an application such as this is to act as a sort of gatekeeper tasked to keep out meritless claims or “those whose outcomes can be easily determined without a significant expenditure of the court’s time and resources, such as on a point of law.” [ 6 ] With those comments in mind, and accepting that this court has jurisdiction to strike out this interlocutory application if that remedy is found to be merited, the question is whether the claim ought to be struck on the ground it: (

a) is without reasonable grounds; (

b) discloses no triable issue; or (

c) is frivolous or an abuse of the court’s process. III. The Claim in Negligence [ 7 ] The Council submits that Mr. Brown’s claim in negligence lacks any reasonable grounds given the clear wording of the Urgent Order For his part, Mr. Brown points to a letter he received from Coast Capital stating it had erred in part because the Order was not clear. [ 8 ] As the relevant

section of the Urgent Order has considerable bearing on this application, I will reproduce it below as follows: Under section 46(3) of the RESA that Coast Capital hold any and all accounts including without limitation trust accounts, current accounts, general accounts, savings accounts, investment accounts, client funds, securities, terms deposits, and registered savings accounts held on deposit for or in the name of Rob Brown & Associates Corp., whether solely or jointly, and including without limitation the following accounts held at Coast Capital, 239 Menzies Street, Victoria, BC: [ 9 ] The Order goes on to list three specific numbered accounts which need not be itemized for the purposes of this application. [ 10 ] The Urgent Order was transmitted to Coast Capital’s Head Office by letter dated March 13, 2019 from Kristine Mactaggart Wright, Legal Counsel for the Council.

In addition to attaching the Order, Ms. Mactaggart Wright writes that “the Order requires you to hold the Brokerage’s accounts, as set out in the Order and without limitation, including the following accounts held in the branch at 239 Menzies Street, Victoria, B.C.” That letter is attached as Exhibit F to Ms. Mactaggart Wright’s Affidavit, sworn October 6, 2020. [ 11 ] On March 18, 2019, Mr. Brown sent Ms. Mactaggart Wright an email, copied to two other persons, asking, among other things, that she unfreeze his business and personal accounts with Coast Capital. At paras 5 and 6 of her Affidavit, Ms.

Mactaggart Wright swears that she was away from her office and out of the country when Mr. Brown sent his March 18 email, and did not return to her office until March 25. On that day, Ms. Mactaggart Wright read the email and called the legal manager of Coast Capital to confirm the Urgent Order in no way required Coast Capital to freeze any of Mr. Brown’s personal accounts. Ms. Mactaggart Wright informed Mr. Brown by letter dated March 29 that the Urgent Order did not freeze any of his personal accounts. [ 12 ] On March 26, 2019, Ms.

Ela Gunson, Coast Capital’s Supervisor of Credit Solutions Garnishment and Information, emailed Mr. Brown to advise that his personal account was no longer frozen. Ms. Gunson wrote that “the wording of the order was not clear thus we originally froze your personal and business accounts…” Mr. Brown relies on this as evidence that the Urgent Order was negligently

drafted. He submits the fact Coast Capital sought clarification from its solicitors, as Ms. Gunson indicates was done, supports his claim that the Order was ambiguous. He submits the Council could and should have clarified that the Order did not apply to any of his personal accounts. [ 13 ] While the proposition that the Council could have indicated the Urgent Order was never intended to apply to any of Mr. Brown’s personal accounts has some initial attraction, it also has the possibility of further confusing matters. The Urgent Order on its face does not refer to Mr. Brown personally at all. Rather, the

section requiring Coast Capital to freeze accounts relates only to the Brokerage, Rob Brown & Associates Corp. To reference Mr. Brown’s personal accounts in this

section would have been unnecessary and, as I have noted, possibly even more confusing. Moreover, it is notable that Ms. Mactaggart Wright refers specifically to the Brokerage’s accounts in her cover letter to Coast Capital. [ 14 ] I find I agree with the Council that if there is an error in this instance, it lies with Coast Capital, and whomever ultimately froze Mr. Brown’s personal account. That error may or may not constitute negligence; that is not an issue before this Court. On the question whether on these facts there is any triable issue of negligence, I find the facts disclose no triable issue.

The Urgent Order is clear on its face: it does not apply to Mr. Brown at all in his personal capacity. If there is a case of negligence, it rests on the reader rather than the drafter of the Order. The drafter cannot be held liable for the manner in which the Order was interpreted. Nor is there any evidence that the standard of care in drafting orders such as the Urgent Order is to clarify not only what the order applies to but also to what it does not apply.

If that were the case, there could potentially be no end to the obligations and legal liability of the drafters of such orders. [ 15 ] In my view the facts and pleadings in this claim disclose no triable issue in negligence against the Council for the manner in which the Urgent Order was drafted. The claim ought to be dismissed on that basis alone. However, Mr. Brown makes further submissions regarding the negligence of the Council, and the Council itself seeks an order dismissing the claim on the grounds this Court lacks jurisdiction to hear it. As both issues were argued, I will address those in these reasons.

IV. Negligent Inaction [ 16 ] In a clarification of his claim following a settlement conference in this matter, Mr. Brown writes that Ms. Mactaggart Wright chose not to clarify Coast Capital’s mistake until almost 16 days after he advised her of it, and only after he had to threaten the Council with a complaint to the “Ombudsman” and Supreme Court action. He seeks punitive damages for the “blatant inactions” totalling $15,000.00. [ 17 ] This claim is not pled and no leave has yet been granted to amend the claim.

While it is not the role of this Court to discourage unusual claims, in my view there is nothing to this allegation. Among other things, as noted, Ms. Mactaggart Wright was out of the country when Mr. Brown sent his March 18 email. She advised Coast Capital of the requirements of the Order immediately upon her return to the office. Aside from the basic allegation of “blatant inaction” there are no actual grounds for a claim for punitive damages. [ 18 ] In submissions on this application, Mr.

Brown added to this that the Council could have corrected Coast Capital’s mistake well before March 26 had someone monitored Ms. Mactaggart Wright’s emails while she was out of the country on holiday. In my view, nothing can be made of this submission; it falls far short of negligence. In any event, as Ms. Mactaggart Wright has sworn, Mr. Brown would have received an out-of-office reply to his March 18 email. He would have been apprised of her absence and could have taken measures to mitigate his loss. V.

Jurisdiction to Hear this Claim [ 19 ] The Council submits that it is statutorily immune from liability pursuant to s. 128 of the RESA and, it follows, this Court lacks any jurisdiction to hear this claim against it. [ 20 ]

Section 128 of the RESA provides as follows:

(1) In this section, "protected individual" means an individual who is or was any of the following: (

a) a council member; (

b) a member of a hearing committee; (

c) the superintendent; (

d) a member of the board of governors of the foundation or a director of the insurance corporation or the compensation fund corporation; (

e) an employee of, officer of, or any other individual acting on behalf of or under the direction of, the real estate council, superintendent, foundation, insurance corporation or compensation fund corporation.

(2) Subject to subsection (4), no legal proceeding for damages lies or may be commenced or maintained against a protected individual, the real estate council or the government because of anything done or omitted (

a) in the performance or intended performance of any duty, or (

b) in the exercise or intended exercise of any power

(2.1) Subject to subsection (4), no legal proceeding for damages lies or may be commenced or maintained against a protected individual, the real estate council, the compensation fund corporation or the government because of anything done or omitted (

a) in the performance or intended performance of any duty, or

(

b) in the exercise or intended exercise of any power

(3) Subject to subsection (4), no legal proceeding for damages lies or may be commenced or maintained against a protected individual because of anything done or omitted (

a) in the performance or intended performance of any duty under this Act, other than a duty under the provisions referred to in subsection (2), or (

b) in the exercise or intended exercise of any power under this Act, other than a power under those provisions. (4) Subsections (2), (2.1) and (3) do not apply to a protected individual in relation to anything done or omitted in bad faith. (5) Subsection (3) does not absolve the real estate council, government, foundation, insurance corporation or compensation fund corporation, as applicable, from vicarious liability arising out of anything done or omitted by a protected individual for which it would be vicariously liable if that subsection were not in force. [ 21 ] The claim in this case is against the Council.

Pursuant to ss. 128(2), no legal proceedings lie against the Council for anything done or omitted: (

a) in the performance or intended performance of any duty, or (

b) in the exercise or intended exercise of any power. The exceptions for acts done in bad faith do not apply as against the Council, but rather, as against a protected individual. At this juncture, given the language of s. 128 , there is no basis upon which this Court can embark on a trial against the Council. It is completely statutorily immune from the allegations in this claim. [ 22 ] As previously noted, Mr. Brown seeks leave to amend his claim to add allegations of bad faith against the Council. Given the wording of s. 128 , the amendment would be of no assistance. However, if what Mr.

Brown intends is that a protected individual, such as the one member discipline committee, acted in bad faith I do not accept the claim. There must be more than bald allegations of bad faith made after being apprised of legislative provisions to justify proceeding to trial against a statutory actor. Here, the materials appended to Ms. Mactaggart Wright’s Affidavit, including the reasons of the discipline committee, disclose nothing that could support a claim of bad faith action or inaction. It is an allegation made up out of whole cloth by someone I accept is aggrieved by the Council. [ 23 ] Mr.

Brown has provided materials respecting what he submits has been the impact on his mental health arising out of the loss of his license, and the consequent loss of his livelihood. The freezing of his personal account, which was in no way ordered or intended by the Council, caused him to suffer personal anguish. I do not say this constitutes a basis for damages; only that I accept Mr. Brown has been deeply and adversely emotionally and mentally affected by the proceedings against him. He looks to this court, he says, for justice. I fear Mr. Brown will feel justice has not been done.

However, this court proceeds on a set of rules and laws and principles that apply broadly and equally. In this instance, I find Mr. Brown has not pled or made out a case against the Council for the freezing of his personal account that will succeed. It would be wrong in law to allow the claim to proceed though Mr. Brown badly wants to confront the Council in court. To allow the claim to proceed would do Mr. Brown no favour.

In any event, that is not the role of this court. [ 24 ] For the above reasons, I would allow the Council’s application to strike this claim. _____________________________ The Honourable Judge Mrozinski Provincial Court of British Columbia