Northern Thunderbird Air Inc. v. Anderson, 2022 BCPC 8

Citation: Northern Thunderbird Air Inc. v. Anderson 2022 BCPC 8 Date: 20220119 File No: 1955484 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Act, RSBC 1996, c 430, BETWEEN: NORTHERN THUNDERBIRD AIR INC. CLAIMANT AND: BROOKLYN ANDERSON DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Appearing for the Claimant: D. McCrea Appearing on his own behalf: B. Anderson Place of Hearing: Prince George , B.C. Date of Hearing: November 2, 2021

Date of Judgment: January 19, 2022 Introduction [ 1 ] For the past four years the parties have been embroiled in a dispute with respect to a two-year Training Bond Agreement that Brooklyn Anderson signed on September 21, 2016, when he commenced his employment with Northern Thunderbird Air Inc. (“NT Air”). The dispute was initially adjudicated by the Civil Resolution Tribunal (the “CRT”) which concluded Brooklyn Anderson was liable for the outstanding balance owing under the Training Bond when he left NT Air’s employ for a higher paying job after one year.

The CRT also denied Brooklyn Anderson’s counterclaim for unpaid wages and reimbursement for those sums he had already repaid under the Training Bond. [ 2 ] Brooklyn Anderson filed a Notice of Objection to the CRT’s decision and the litigation continued before the Provincial Court Small Claims division. The Provincial Court has repeatedly ordered Brooklyn Anderson to pay into court a deposit for those sums the CRT found owing. He has repeatedly failed or refused to pay the court-ordered deposit.

Issue [ 3 ] The issue before me is whether the court ought to make a default order in favour of NT Air as a result of Brooklyn Anderson’s failure to make the court-ordered deposit. Background [ 4 ] The applicant Northern Thunderbird Air Inc. (“NT Air”) is a small airline operator based in Prince George, British Columbia, offering charter and medevac services. [ 5 ] The respondent Brooklyn Anderson is NT Air’s former employee.

On September 21, 2016, Brooklyn Anderson entered into a Training-Bond contract with NT Air wherein NT Air agreed to train Brooklyn Anderson to pilot its Beechcraft 1900 Airliner aircraft on certain terms and conditions. The Training Bond included a $10,000 Promissory Note from Brooklyn Anderson to NT Air. Brooklyn Anderson agreed to reimburse NT Air the pro-rata cost of the training if he left NT Air’s employ within two years (“ Training Bond ”).

Brooklyn Anderson was to be credited for 1/24 of the Training-Bond debt for every completed calendar month of service. [ 6 ] The parties signed a separate employment agreement dated September 21, 2016, providing NT Air hired Brooklyn Anderson as a First Officer with a starting salary of $2,600 per month. Brooklyn Anderson’s employment was to commence when he completed a Pilot Proficiency Check with Transport Canada. Brooklyn Anderson completed the Pilot Proficiency Check on October 3, 2016. [ 7 ] Brooklyn Anderson worked for a year at NT Air.

On October 2, 2017, he tendered his resignation effective October 16, 2017. At that time, Brooklyn Anderson had completed only 12 full months of employment. He had sought and obtained a job with Skylink Express, a Vancouver Company, at a starting wage of $70,000 piloting a Beechcraft 1900, a salary which was 2.4 times greater than what he was being paid at NT Air. [ 8 ] Upon Brooklyn Anderson’s departure, NT Air invoiced him $5,000, for the balance outstanding on the Training Bond. On October 31, 2017, Brooklyn Anderson paid NT Air $1,500.

NT Air says this sum was paid in partial satisfaction of the balance owing on the Training Bond; Brooklyn Anderson says he paid it for his training files, which NT Air never produced. Procedural History before the Civil Resolution Tribunal [ 9 ] On May 14, 2018, NT Air filed a dispute with the Civil Resolution Tribunal against Brooklyn Anderson in which it sought reimbursement for flight training pursuant to the terms of the Training Bond. NT Air claimed there was still $5,000 owing under the Training Bond when Brooklyn Anderson resigned.

Post-termination, Brooklyn Anderson paid $1,500 towards the $5,000 outstanding under the Training Bond. NT Air claimed the balance owing under the Training Bond in the amount of $3,500. [ 10 ] On July 17, 2018, Brooklyn Anderson filed a Dispute Response asking the Civil Resolution Tribunal to deny NT Air’s claim and counterclaimed for $5,000, which included the $1,500 he paid towards his training files, plus $4,636.67 in unpaid wages. [ 11 ] On December 28, 2018, Tribunal Member Shelley Lopez issued a decision of the Civil Resolution Tribunal (“CRT”) in Northern Thunderbird Air INC. (Applicant) v.

Brooklyn Anderson (Respondent) and Northern Thunderbird Air INC. (Respondent by Counterclaim). The decision was indexed as Northern Thunderbird Air INC. v. Anderson, 2018 BCCRT 915 . [ 12 ] The CRT found in favour of NT Air and dismissed Brooklyn Anderson’s counterclaim. The tribunal member made the following orders: Orders 34 Within 14 days of this decision, I order Mr. Anderson to pay Northern [Thunderbird Air Inc.] a total of $3,726.10, broken down as follows: a. $3,500 for the j debt, b. $51.10 in pre-judgment interest under the COIA [ Court Order Interest Act ], and c. $175 in tribunal fees. 35. Mr.

Anderson’s counterclaims are dismissed. Northern is entitled to post-judgment interest as applicable.

[ 13 ] In its Reasons for Decision, CRT cited the provisions of ss. 48 and 58.1 of the Civil Resolution Tribunal Act (“ CRTA ”): 36. Under

section 48 of the Act, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under

section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision. 37. Under

section 58.1 of the Act, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed.

Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia. [ 14 ] On or about January 4, 2019, Brooklyn Anderson filed a Notice of Objection pursuant to s. 56.1 of the Civil Resolution Tribunal Act , SBC 2012, c 25 (“ CRTA ”), thus rendering the CRT decision unenforceable until a new hearing was conducted in the Provincial Court. [ 15 ] On January 10, 2019, the CRT issued a Certificate of Completion pursuant to s. 56.2 of the CRTA , indicating the dispute between NT Air and Brooklyn Anderson was resolved through a hearing under s. 30 of the CRTA .

Procedural History before the Provincial Court [ 16 ] Provincial Court Small Claims Rule 1.1 provides for the continuation of a dispute initiated before the Civil Resolution Tribunal. Specifically: a. Small Claims Rules 1.1(3) to (9) set out the process by which a claim made by a claimant against a defendant in the CRT is continued as a claim before the Provincial Court, Small Claims division; b. Small Claims Rule 1.1(18) provides that a response made by a defendant in the CRT is continued as a reply to a claim in the Provincial Court ; c.

Small Claims Rule 1.1(27) provides that a claim made by a defendant against a claimant before the CRT is continued as a counterclaim in Provincial Court; and d. Small Claims Rule 1.1(29) provides that the claimant’s response to a counterclaim with the CRT is continued as a reply to the counterclaim in Provincial Court. [ 17 ] On March 5, 2019, NT Air sent to the Prince George Provincial Court Registry a letter enclosing a Notice of Civil Resolution Tribunal Claim Form 34 in response to Brooklyn Anderson’s Notice of Objection to the CRT and the CRT’s Certificate of Completion.

NT Air filed the Notice of Civil Resolution Tribunal Claim pursuant to Small Claims Rule 1.1 on March 12, 2019, in Prince George Provincial Court Registry File 1955484 and recorded in the Provincial Court Electronic Information System (“CEIS”) as document number 1 (CEIS document 1). [ 18 ] In support of its Form 34, NT Air filed the CRT’s Certificate of Completion (CEIS document 6), which in turn attached: (

a) NT Air’s Dispute Notice submitted to the CRT under s. 6 of the CRTA on May 14, 2018, and issued by the CRT on May 15, 2018 (CEIS document 3); (

b) Brooklyn Anderson’s Dispute Response submitted to the CRT under s. 7 of the CRTA on May 24, 2018 (CEIS document 5); (

c) Brooklyn Anderson’s Dispute Notice submitted to the CRT under s. 6 of the CRTA on May 24, 2018, and issued by the CRT on July 17, 2018 (CEIS document 4); (

d) NT Air’s Dispute Response to Brooklyn Anderson’s Counterclaim submitted to the CRT under s. 7 of the CRTA on July 17, 2018 (CEIS document 5); and (

e) the Corporate

Summary for Northern Thunderbird Air Inc. (CEIS document 2). [ 19 ] Also on March 12, 2019, NT Air filed an Application for Deposit seeking an order requiring Brooklyn Anderson pay a deposit of $3,500 into court pursuant to s. 56.3 of the CRTA (CEIS document 7). Rule 56.3 of the CRTA states: Deposit for claims previously adjudicated by civil resolution tribunal 56.3

(1) If the civil resolution tribunal has adjudicated a claim, or made an order for payment of case management expenses, and a person has filed a notice of objection under this Part, the Provincial Court may order that the person make a deposit as a condition of making or defending the claim.

(2) The amount a person is required to deposit must not exceed the total of the following: (

a) an amount prescribed by regulation that is less than or equal to the amount awarded by the civil resolution tribunal against the person; (

b) an amount prescribed by regulation as security for the costs of the other parties.

(3) The Provincial Court may order that a deposit under this

section be paid in instalments. . . . [ 20 ] Tribunal Small Claims Regulation , BC Reg 232/2018 , states: Maximum deposit for claim previously adjudicated by civil resolution tribunal 4

(1) For the purposes of

section 56.3 (2) (a) [ deposit for claims previously adjudicated by civil resolution tribunal] of the Act, the amount prescribed is equal to the amount awarded by the tribunal against the person.

(2) For the purposes of

section 56.3 (2) (

b) of the Act , the amount prescribed as security is $1 000. [ 21 ] The hearing of NT Air’s March 12, 2019 Application for Deposit (CEIS document 7) was scheduled for hearing on April 26, 2019 in Prince George Provincial Court. [ 22 ] On April 8, 2019, Sheryl McCrea, controller of NT Air, filed a Certificate of Service (CEIS documents 8 and 9) indicating on March 20, 2019, she served Brooklyn Anderson at [omitted for publication] Road, Richmond, BC , V7C 3M2, by registered mail with a copy of: (

a) NT Air’s March 12, 2019 Application for Deposit (CEIS document 7); (

b) NT Air’s Notice of Civil Resolution Tribunal Claim (CEIS document 1); (

c) the CRT’s Certificate of Completion (CEIS document 6); (

d) the CRT’s Dispute Notice issued May 15, 2018 (CEIS document 3); (

e) the CRT Dispute Notice issued July 17, 2018 (CEIS document 4); (

f) Brooklyn Anderson’s Dispute Response filed with the CRT on May 24, 2018 (CEIS document 5); (

g) NT Air’s Dispute Response to Brooklyn Anderson’s counterclaim filed with the CRT on July 17, 2018 (CEIS document 5); and (

h) the BC Registry Company

Summary for Northern Thunderbird Air Inc. (CEIS document 2). [ 23 ] Sheryl McCrae attached to her April 8, 2019 Certificates of Service (CEIS documents 8 and 9), Canada Post tracking record RN364152982CA showing the Application for Deposit (CEIS document 7) was received by Canada Post on March 20, 2019, and delivered to the signatory named Brooklyn Anderson on April 1, 2019. [ 24 ] In his Dispute Notice and Response filed with the CRT on May 24, 2018, Brooklyn Anderson sets out his address as [omitted for publication] Road, Richmond, British Columbia, V7C 3M2, Canada; email [omitted for publication]; phone at (778) [omitted for publication] (CEIS documents 4 and 5). [ 25 ] Small Claims Rules 1.1(10) and (11) sets out the manner in which the filing party must serve the other parties with a Notice of Civil Resolution Tribunal Claim.

They state in relevant part: Serving a Notice of Civil Resolution Tribunal Claim What must be served on the other parties?

(10) The filing party must serve each of the other parties named in the notice of civil resolution tribunal claim with the following: (

a) the other party's copy of the notice of civil resolution tribunal claim; (

b) a copy of the documents filed under subrule (8) with the notice of civil resolution tribunal claim; (

c) a blank reply form (Form 2) for each claim made against the other party for which the other party does not have a response continued as a reply under this rule; (

d) a blank address for service form (Form 38). How to serve an individual

(11) If any of the other parties referred to in subrule (10) is an individual, the documents referred to in subrule (10) (

a) to (

c) must be served on the individual by (

a) leaving a copy of those documents with the individual, or (

b) mailing a copy of those documents by registered mail to the individual. [ 26 ] On April 23, 2019, NT Air filed an Application to the Registrar seeking leave to attend the April 26, 2019 hearing by telephone, which the Registrar granted (CEIS document 10). [ 27 ] NT Air’s March 12, 2020 Application for a Deposit (CEIS document 7) came before Judge S. Mengering on April 26, 2019. Sheryl McCrea appeared on behalf of NT Air; Brooklyn Anderson did not appear in person or by counsel or agent.

Judge Mengering granted NT Air’s application and ordered Brooklyn Anderson pay a deposit of $3,500 pursuant to s. 56(3) of the CRTA (CEIS document 11). The order did not specify a time by which the deposit was to be paid into court. The court registry mailed a copy of Judge Mengering’s deposit order to the parties on May 23, 2019. [ 28 ] On August 29, 2019, NT Air filed a further Application to a Judge (CEIS document 12) seeking an order for a date certain by which Brooklyn Anderson pay into court the deposit of $3,500 per Judge Mengering’s April 26, 2019 Order (CEIS document 13).

Judge Mengering ordered Brooklyn Anderson pay the $3,500 deposit to the Minister of Finance by 4:00 p.m. on September 26, 2019 (CEIS document 13). [ 29 ] November 14, 2019, NT Air sent a letter to the Prince George Court Registry enclosing its Application for a Default Order in Form 5 (CEIS document 15) as a result of Brooklyn Anderson’s failure to pay the $3,500 deposit ordered by Judge Mengering on April 26, 2019 (as varied on August 29, 2019).

NT Air enclosed copies of its receipts from the CRT and Canada Post, together with a copy of Judge Mengering’s Orders made April 26, 2019 and August 29, 2019. [ 30 ] Rule 1.1(41.11) of the Small Claims Rules states: If a defendant does not make a deposit

(41.11) If a defendant has been ordered to make a deposit under

section 56.3 of the Civil Resolution Tribunal Act and the defendant has failed to make the deposit as ordered, the claimant may ask the registrar for a default order.

[ 31 ] Small Claims Rules 41.20 and 41.21 sets the process for the issuance of a default order. They state: How to ask for a default order

(41.20) To ask for a default order under subrule (41.11), a claimant must complete Form 5, following the instructions on the form, file it at the registry where the notice of civil resolution tribunal claim was filed and pay the required fee. If a claim is for a debt

(41.21) If a claim is for a debt and the claimant completes the steps in subrule (41.20), the registrar must make a default order requiring the defendant to pay immediately the amount claimed plus expenses under Rule 20 (2) and any interest the claimant is entitled to. [ 32 ] Rule 20(2) of the Small Claims Rules provides: Successful party to receive filing and service fees

(2) An unsuccessful party must pay to the successful party the following expenses, unless a judge or registrar orders otherwise: (

a) any fees the party paid for filing any documents; (

b) reasonable amounts the party paid for serving any documents; (

c) any other reasonable charges or expenses that the judge or registrar considers directly relate to the conduct of the proceeding. [ 33 ] On March 2, 2020, Codi-Ann Huisman of NT Air filed a Certificate of Service (CEIS document 14) averring to have served Brooklyn Anderson on February 12, 2020, by registered mail at [omitted for publication] Road, Richmond BC, V7C 3M6 [sic], with a copy of (

a) NT Air’s Application to a Judge filed August 29, 2019 (CEIS document 12) endorsed with Judge Mengering’s Order made that same day (CEIS document 13); (

b) NT Air’s Application for a Default Order (CEIS document 15); (

c) Judge Mengering’s April 26, 2019 Order (CEIS document 11); (

d) Civil Resolution Tribunal receipts dated May 29, 2018 and July 25, 2018; (

e) Canada Post tracking information dated April 3, 2019, RN 364 152 982 CA, addressed to Brooklyn Anderson, [omitted for publication] Road, Richmond, BC, V7C 3M2; (

f) Canada Post receipts dated March 20, 2019, and August 21, 2019; (

g) Notice of Civil Resolution Tribunal Claim filed March 12, 2019 (CEIS document 1); and (

h) an Application for Deposit filed March 12, 2019, and returnable April 26, 2019 (CEIS document 7). Codi-Ann Huisman attached to her Certificate of Service (CEIS document 14) a copy of the Canada Post tracking record RN410953047CA indicating these documents were delivered to Brooklyn Anderson on February 12, 2020. [ 34 ] On March 12, 2020, Court Registrar G. Baylis granted NT Air’s Application for a Default Order (CEIS document 15) and pursuant to Small Claims Rule 1.1(41), ordered Brooklyn Anderson pay to NT Air directly the sum of $3,720, inclusive of costs (the “March 12, 2020 Default Order”). [ 35 ] Prince George Court Registry received from Brooklyn Anderson: (

a) an Application to a Judge; (

b) an Application to the Registrar; and (

c) unsworn Affidavit to Cancel a Dismissal or a Default Order. Brooklyn Anderson sets out his contact information as: [omitted for publication] Road, Richmond, British Columbia , V7C 3M2, Telephone 778 [omitted for publication], on both his July 13, 2020 applications and supporting affidavit (CEIS documents 16 and 17). [ 36 ] On March 12, 2020, G. Baylis of the Prince George Provincial Court Registry sent to Brooklyn Anderson a memorandum with respect to his March 10, 2020 applications and affidavit on Small Claims File 1955484. G.

Baylis advised Brooklyn Anderson his affidavit needed to be sworn before it could be filed and his applications could be heard on April 24, May 22, or June 19, at 9:30 a.m. [ 37 ] On May 14, 2020, Brooklyn Anderson swore his Affidavit to Cancel or Dismiss a Default Order before Notary Public Alena Harelik in Richmond, BC (CEIS document 17). [ 38 ] On July 13, 2020, Brooklyn Anderson filed his Application to a Judge (CEIS document 16) in the Prince George Provincial Court Registry returnable September 18, 2020, seeking an order setting aside Judge Mengering’s Deposit Order (April 16, 2019, as varied on August 29, 2019: CEIS documents 11 and 13).

Also on July 13, 2020, Brooklyn Anderson filed his Affidavit (CEIS document 17) in support of his July 13, 2020 Application, stating he did not attend the April 26, 2019 hearing because: I had no knowledge of the trial as I as not aware a package (still unopened) from the claimant was for court. [ 39 ] Brooklyn Anderson says in his July 13, 2020 Affidavit (CEIS document 17), he first learned of the Dismissal or Default Order on August 30, 2019.

He explains: I have had no time to receive the proper documents and knowledge due to occupation and care of my newborn. [ 40 ] Small Claims Rule 17(2) states: Cancelling dismissal order or default order

(2) A judge may cancel a dismissal order or default order if (

a) the order was made (

i) in the absence of a party, (ii) for failing to file a reply, or

(iii) for failing to make a deposit under

section 56.3 of the Civil Resolution Tribunal Act , and (

b) the party applies (see Rule 16 (7)) and attaches to the application an affidavit containing (

i) the reason the party did not file a reply, attend the settlement conference, trial conference or trial or make a deposit under

section 56.3 of the Civil Resolution Tribunal Act , (ii) the reason for any delay if there has been delay in filing the application, and (iii) the facts that support the claim or the defence. [ 41 ] Small Claims Rule 16(7) states: How to apply to a judge

(7) To apply for an order listed in subrule (6), other than subrule (6) (n.1), a party must complete an application (Form 17), following the instructions on the form, and file it at the registry where the court file is unless the registrar allows the application to be filed at another registry (see subrule (8)). [ 42 ] The court file has no confirmation Brooklyn Anderson served NT Air with a copy of his July 13, 2020 Application (CEIS document 16) and supporting affidavit (CEIS document 17). Small Claims Rules 16(9) and (10) state: Rule 16 – Applications to the Court . . . Applicant must serve notice

(9) A t least 7 days before the date set for hearing an application under subrule (7) or (7.1), the applicant must serve a copy of the application, and the affidavit if required (see Rule 17 (2)), on each party that would be affected by the order requested unless the application is for a default order because no reply to a third party notice has been filed. Service not required in urgent cases

(10) If satisfied that an application is urgent, a registrar may allow an application to be made under subrule (6) even though the other parties have not been served. [ 43 ] On September 18, 2020, Brooklyn Anderson’s July 13, 2020 Application (CEIS document 16) to set aside the Default Order came before Judge Keyes. Brooklyn Anderson appeared on his own behalf and no one appeared on behalf of NT Air.

Judge Keyes ordered Brooklyn Anderson prepare an affidavit setting out what happened and attaching pertinent documents (CEIS document 18). [ 44 ] I note that in advance of the September 18, 2020 remote court appearance, Brooklyn Anderson provided the Court Registry written confirmation his telephone number was 778 [omitted for publication and his email address was [omitted for publication. [ 45 ] On November 17, 2020, Brooklyn Anderson filed with the Prince George Registry the following: a.

An affidavit (CEIS document 19) attaching a statement dated October 1, 2020, regarding his employment grievances with NT Air; b. The decision of the CRT dated December 28, 2018; c. The CRT’s acknowledgement of receipt dated January 9, 2019, of $200 from Brooklyn Anderson as the fee for filing his Notice of Objection; d. Email correspondence between Brooklyn Anderson and NT Air between August 15, 2016 and May 11, 2017; e. September 21, 2016 Training Bond Agreement between NT Air and Brooklyn Anderson, including the Promissory Note; f. Certificate of Record; g.

Various Enrollment Notification, Exam Certificates, and Certificates of Completion issued from NT Air to Brooklyn Anderson in September 2016; h. Brooklyn Anderson’s pilot

schedule with NT Air; i. Brooklyn Anderson’s advice of deposit slips from NT Air; and j. Brooklyn Anderson’s statement dated August 21, 2018, to the CRT. [ 46 ] On November 20, 2020, Brooklyn Anderson’s July 13, 2020 Application (CEIS document 16) to set aside Judge Mengering’s Deposit Order came before Judge Brecknell for an initial appearance. Brooklyn Anderson appeared on his own behalf and no one appeared on behalf of NT Air. Brooklyn Anderson had not served NT Air with copies of the materials he filed with the court on November 17, 2020.

Judge Brecknell ordered the court registry forward to NT Air, Brooklyn Anderson’s November 17, 2020 Affidavit (CEIS document 19) and the Civil Resolution Tribunal documents. Judge Brecknell also directed the Judicial Case Manager to

schedule Brooklyn Anderson’s July 13, 2020 Application for a 1.5 hour hearing. Judge Brecknell gave both parties leave to attend at the hearing by telephone or video conferencing (see CEIS document 20).

[ 47 ] On November 24, 2020, the court registry mailed to NT Air the documents set out above pursuant to Judge Brecknell’s November 2020 Order. [ 48 ] On November 27, 2020, the Prince George Court Registry issued a Notice of Trial (CEIS document 21) to the parties, directing them to attend court on February 22, 2021, with respect to Brooklyn Anderson’s July 13, 2020 Application to a Judge to set aside Judge Mengering’s Deposit Order.

The Notice was sent on November 27, 2020 to NT Air at 100-4245 Hangar Road, Prince George, BC, V2N 4M6, and to Brooklyn Anderson by post at [omitted for publication] Road, Richmond BC, V7C 3M2, and by email at [omitted for publication]. [ 49 ] On February 22, 2021, Brooklyn Anderson’s July 13, 2020 Application (CEIS document 16) came before Judge Mengering for trial. Judge Mengering noted Brooklyn Anderson’s application was made pursuant to Rule 1.1(41) of the Small Claims Rules .

Ultimately, Judge Mengering adjourned the hearing to the Judicial Case Manager to reschedule the trial due to lack of court time (CEIS document 23). [ 50 ] On November 2, 2021, Brooklyn Anderson advised the court he had moved from [omitted for publication] Road, Richmond BC, V7C 3M2, to [omitted for publication] Street, Surrey, BC V4P 3M6 on August 1, 2020. He did not file with the court registry a formal Notice of Change of Address; however, the court was made aware of his new address.

Moreover, Brooklyn Anderson said he signed up for mail forwarding for two years. [ 51 ] On March 2, 2020, the Prince George Court Registry issued the parties a Notice of Trial (CEIS document 22) for March 22, 2021, with respect to Brooklyn Anderson’s July 13, 2020 Application (CEIS document 16).

The Prince George Court Registry mailed the Notice of Trial to NT Air at 100 – 4245 Hangar Road, Prince George, BC, V2N 4M6 and to Brooklyn Anderson at [omitted for publication] Street, Surrey, BC, V4P 3M6. [ 52 ] On March 22, 2021, Brooklyn Anderson’s July 13, 2020 Application to set aside Judge Mengering’s Deposit Order came before Regional Administrative Judge (“RAJ”) Galbraith. Douglas McCrae appeared on behalf of NT Air and Brooklyn Anderson appeared on his own behalf.

RAJ Galbraith defined the issue before him as whether Brooklyn Anderson ought to pay the deposit into court given his financial circumstances. Judge Galbraith heard evidence and argument from Brooklyn Anderson as to his personal financial circumstances. Judge Galbraith was satisfied Brooklyn Anderson had the means to pay the deposit and should do so. Judge Galbraith ordered: a. Brooklyn Anderson pay into court the sum of $3,726.10 by June 30, 2021 (this is the sum ordered by the CRT on December 28, 2018); b.

If Brooklyn Anderson does not pay $3,726.10 into court by June 30, 2021, then NT Air must file a Notice of Claim no later than July 16, 2021; and c.

Brooklyn Anderson must file a reply within 14 days of receiving NT Air’s Notice of Claim. [ 53 ] RAJ Galbraith did not specifically address the issue of whether Registrar Baylis’ March 12, 2021 Default Order ought to be set aside. [ 54 ] As to the filing of a Notice of Claim and Reply, I gather Judge Galbraith was unaware that Rule 1.1 provides for the continuation of the originating dispute as the claim (Rule 1.1(9), (16)), reply (Rule 1.1(18), (19)) and counterclaim (Rule 1.1(27)) and the response to counterclaim (Rule (29)).

In other words, NT Air did not have to file a Notice of Claim under Rule 1, and Brooklyn Anderson did not have to file a Reply under Rule 3 (See Rule 1.1(19)) or Counterclaim under Rule 4 (Rule 1.1(28)). In any event, as Brooklyn Anderson never did pay the $3,726.10 into court as ordered, neither party was required to file any further pleadings. [ 55 ] NT Air had substantially complied with the service requirements set out in Rule 1.1(10) and (11) with the exception of including in the package of documents served on Brooklyn Anderson a blank Address for Service in Form 38.

In the circumstances, I consider this a minor omission.

I note that at the March 22, 2021 hearing, Brooklyn Anderson confirmed on the record his residential address for service was in fact [omitted for publication] Street, Surrey, BC, V4P 3M6. [ 56 ] June 30, 2021 came and went and Brooklyn Anderson did not pay all or any portion of the deposit ordered by Judge Mengering or Judge Galbraith. [ 57 ] On June 16, 2021, NT Air obtained a Summons to a Payment Hearing returnable September 3, 2021, at 9:30 a.m. in Prince George Law Courts (CEIS document 24), requiring Brooklyn Anderson to attend court and bring his relevant financial records.

The amount owing as of June 16, 2020, inclusive of costs and court-ordered interest is $3,858.10. [ 58 ] On August 13, 2021, Eddis Petrossian, a professional process server, filed an Affidavit of Attempt of Service setting out his efforts to personally serve Brooklyn Anderson at [omitted for publication] Street, Surrey, BC (CEIS document 25) with the Summons to a Payment Hearing. In his affidavit, Eddis Petrossian stated he made many attempts to contact and sent electronic text messages to Brooklyn Anderson at 778 [omitted for publication], and was told the number was not Brooklyn Anderson’s.

Eddis Petrossian attached as Exhibit “C” a copy of the text messages he received from 778 [omitted for publication] . [ 59 ] On November 2, 2021, Brooklyn Anderson advised the court his cellular phone number was and always has been 778 [omitted for publication]. It was never 778 [the number Eddis Petrossian called]. I conclude Eddis Petrossian was not text messaging Brooklyn Anderson. [ 60 ] On August 25, 2021, NT Air filed an Application to the Registrar for leave to serve Brooklyn Anderson by substitutional service.

NT Air filed Eddis Petrossian’s August 13, 2021 affidavit (CEIS document 25) in support of the application. On August 25, 2021, the Registrar ordered NT Air could serve Brooklyn Anderson substitutionally by affixing a copy of the Summons to a Payment Hearing to the front door of Brooklyn Anderson’s last known home address at [omitted for publication] Street, Surrey, BC, V4P 3M6, along with a

copy of the substitutional service order (CEIS document 26). [ 61 ] On August 27, 2021, Eddis Petrossian, Professional Process Server, filed an Affidavit of Service (CEIS document 27) confirming that on August 26, 2021, he served Brooklyn Anderson substitutionally with: (

a) the Summons to a Payment Hearing (CEIS document 24); and (

b) NT Air’s Form 16 Application to the Registrar (CEIS document 26) with resulting order, by placing the documents in an envelope marked personal and confidential and attaching it to the front door of the defendant’s last known home address of [omitted for publication] Street, Surrey, BC. [ 62 ] On September 1, 2021, Eddis Petrossian filed a second Affidavit of Service (CEIS document 28) confirming that on August 26, 2021, he served Brooklyn Anderson at [omitted for publication], Surrey, BC, V4P 3M6, substitutionally by posting a copy of the Summons to a Payment Hearing and the August 25, 2021 Order on the front door of that residence (CEIS document 28). [ 63 ] NT Air’s Summons to a Payment Hearing served on Brooklyn Anderson came before Judge Malfair on September 3, 2021.

Mr. Douglas McCrae appeared on behalf of NT Air and Brooklyn Anderson appeared in person. On September 3, 2021, Judge Malfair referred this matter to the Judicial Case Manager to fix a date for one hour for a default hearing. [ 64 ] At the September 3, 2021 hearing, Brooklyn Anderson told the court he had never received notice this matter was proceeding to court when Judge Mengering made the Deposit Order. Brooklyn Anderson asserted he never received any court documents for two years, despite having indicated in his July 13, 2020 Affidavit that had received the package form NT Air, but did not open it.

He did acknowledge having received the Summons to a Payment Hearing that was affixed to his door. [ 65 ] On October 4, 2021, the Prince George Court Registry issued to the parties a Notice of Trial returnable November 2, 2021 (CEIS document 29). The notice was mailed to Brooklyn Anderson at [omitted for publication] Street, Surrey, BC, V4P 3M6, and by email: [omitted for publication], and to Northern Thunderbird at 100-4245 Hangar Road, Prince George, BC, V2N 4M6, and by email: [omitted for publication]. [ 66 ] The default hearing came before me for trial on November 2, 2021. Both parties appeared by MS Teams.

At the end of the hearing I reserved my decision. These are my reasons for judgment. Analysis [ 67 ] The dispute before me relates to events which occurred over five years ago, between September 21, 2016 and October 3, 2016. The parties have been embroiled in this conflict now for over four years. The dispute was before the CRT for adjudication between May 14, 2018 and January 10, 2019. It has been before the Provincial Court since March 12, 2019. In the past 34 months, this Court has repeatedly ordered Brooklyn Anderson to pay a deposit into court.

The court also made one default order requiring Brooklyn Anderson to pay the monies claimed directly to NT Air. As of the date of these reasons for judgment, Brooklyn Anderson has failed or refused to comply with any of these orders. [ 68 ] Small Claims Rule 17 governs applications to set aside an order made in the absence of a party: Rule 17 – General Changing or cancelling orders made in the absence of a party other than dismissal orders or default orders

(1) A judge may change or cancel an order made in the absence of a party other than dismissal orders or default orders if (

a) that party applies (see Rule 16 (7)) within a reasonable time, and (

b) there is a good reason for changing or cancelling the order. Cancelling dismissal order or default order

(2) A judge may cancel a dismissal order or default order if (

a) the order was made (

i) in the absence of a party, (ii) for failing to file a reply, or (iii) for failing to make a deposit under

section 56.3 of the Civil Resolution Tribunal Act and (

b) the party applies (see Rule 16 (7)) and attaches to the application an affidavit containing (

i) the reason the party did not file a reply, attend the settlement conference, trial conference or trial or make a deposit under

section 56.3 of the Civil Resolution Tribunal Act , (ii) the reason for any delay if there has been delay in filing the application, and (iii) the facts that support the claim or the defence. Issue: Should the court order a default order in favour of NT Air as a result of Brooklyn Anderson’s failure to make the court- ordered deposit?

[ 69 ] In his July 13, 2020 Application (CEIS document 16), Brooklyn Anderson applied to set aside Judge Mengering’s Deposit Order of April 26, 2019 requiring him to pay a $3,500 deposit. This order was subsequently varied on August 29, 2019, to require Brooklyn Anderson to pay the $3,500 into court by 4:00 p.m. on September 26, 2019.

Brooklyn Anderson acknowledges he learned of this order on August 30, 2019 (CEIS document 17). [ 70 ] NT Air served Brooklyn Anderson with a copy of Judge Mengering’s April 26, 2019 and August 29, 2019 Deposit Orders together with its application for a default order by registered mail via Canada Post. Brooklyn Anderson signed for the package containing these documents on February 12, 2020 (CEIS document 14). Brooklyn Anderson did not pay any monies into court. The first time Brooklyn Anderson contacted the court in response to this matter was on March 10, 2020. [ 71 ] On March 12, 2020, Registrar G.

Baylis granted NT Air’s application for a default order in the amount of $3,720. The next time Brooklyn Anderson contacted the court was on July 13, 2020, when he filed his application to set aside the default order. This was over 14 months after Judge Mengering made the April 26, 2019 Deposit Order. [ 72 ] Registrar G. Baylis’ March 12, 2020 Default Order required Brooklyn Anderson pay directly to NT Air the sum of $3,720. When Brooklyn Anderson’s July 13, 2020 Application came before the court on March 22, 2021, Judge Galbraith did not specifically order the March 12, 2020 Default Order be set aside.

Instead, Judge Galbraith’s March 22, 2021 Order required Brooklyn Anderson to pay into court $3,726.10 by June 30, 2021.

In essence, Judge Galbraith’s order countermanded Registrar Baylis’ March 12, 2020 Default Order by requiring Brooklyn Anderson to pay the monies into court rather than directly to NT Air and replaced Judge Mengering’s April 26, 2019 and August 29, 2019 Deposit Orders. [ 73 ] It is noteworthy that on March 22, 2021, RAJ Galbraith conducted an inquiry into Brooklyn Anderson’s finances and determined an order requiring Brooklyn Anderson pay into court a $3,726.10 deposit would not cause him undue hardship. [ 74 ] Brooklyn Anderson has not paid any monies into court as a deposit or to NT Air directly.

On June 16, 2021, the Registrar issued a summons to Brooklyn Anderson to attend a Payment Hearing on September 3, 2021. [ 75 ] When this matter came before the court for a Payment Hearing on September 3, 2021, Judge Malfair noted there was no extant order requiring Brooklyn Anderson to pay monies directly to NT Air. Judge Malfair referred this matter to the Judicial Case Manager to

schedule a default hearing in light of Brooklyn Anderson’s failure to pay into court the deposit Judge Galbraith ordered on March 22, 2021. [ 76 ] Brooklyn Anderson has not complied with RAJ Galbraith’s March 22, 2021 Order he pay a deposit into court, just as he had not complied with the Judge Mengering Deposit Order or Registrar Baylis’ default order.

Whereas Brooklyn Anderson maintains he was not aware of and did not attend the April 26, 2019 court date, there is no doubt he had notice of and attended at the March 22, 2021 hearing, as well as the September 3, 2021 and the November 2, 2021 hearings. [ 77 ] The issue I have to determine is whether this Court ought to make a default order in favour of NT Air pursuant to Rule 1.1(41.2).

In considering this issue, I have taken into account Small Claims Rule 17(2) and the jurisprudence applicable to applications to set aside a default order. [ 78 ] Rule 17(2) is a codification of the test for setting aside a default order espoused in Miracle Feeds v. D. & H. Enterprises Ltd. , [1979] B.C.J. No. 1965 (Co. Ct.) . The defendant must establish: 5 . . . 1. That he did not wilfully or deliberately fail to enter an appearance or file a defence to the plaintiff’s claim; 2.

That he made application to set aside the default judgment as soon as reasonably possible after obtaining knowledge of the default judgment, or gave an explanation for any delay in the application being brought; 3. That he has a meritorious defence or at least a defence worthy of investigation; and 4. That the foregoing requirements will be established to the satisfaction of the court through affidavit material filed by or on behalf of the defendant. [ 79 ] In BCI Bulkhaul Carriers Inc. v.

Aujla Trucking Inc. , 2015 BCCA 411 , Madam Justice Garson for the BC Court of Appeal affirmed the test, but cautioned it was not immutable and ought not to be rigidly applied. With this in mind, I have considered the application of Rule 17(2) to the matter before me. Why did Brooklyn Anderson not make a deposit under

section 56.3 of the Civil Resolution Tribunal Act ? [ 80 ] In his July 13, 2020 Application (CEIS document 16), Brooklyn Anderson says he is seeking an order: . . . to be allowed to defend myself via telephone as I was unaware until after a trial took place and left trying to attain advice and information on how to proceed when I live, reside in Richmond, BC and the claimant filed in Prince George without my knowledge, unable to defend myself. (See Affidavit). [ 81 ] In his affidavit sworn May 14, 2020 and filed July 13, 2020 (CEIS document 17), Brooklyn Anderson acknowledges he is the defendant in these proceedings and asks the court to cancel the April 26, 2019 Deposit Order.

He says he did not attend court on April 26, 2019, because he was not aware of the trial date. He has variously claimed he never received notice of the trial date, or that if he did receive such notice by registered mail, he did not open the envelope and thus remained unaware of its contents. I accept as true Brooklyn Anderson’s representations in his July 13, 2020 Affidavit, that he was not aware of the April 26, 2019 court date because he did not open the package of materials he received from NT Air on April 1, 2019.

[82] Brooklyn Anderson says in his July 13, 2020 Affidavit that he first learned of the April 26, 2019 Deposit Order on August 30,2019. Still, he did not apply to cancel or set aside the April 26, 2019 Deposit Order until July 13, 2020, four months after Registrar G.Baylis made the March 12, 2020 Default Order in favour of NT Air.

Brooklyn Anderson states in his July 13, 2020 Application to aJudge, the reason for his delay in filing his application was because he had “no time to receive the proper documents and knowledge dueto occupation and care of my new born.” [83] In his July 13, 2020 Affidavit (CEIS document 17), Brooklyn Anderson states the facts that support his defence are: 5. . . . documents in CRT claim, caselaw for contractual penalties in employment as well as unopened court documents notifying me ofthe trial from Northern Thunderbird. [Emphasis added.] [84] Brooklyn Anderson has never applied to vary or set aside RAJ Galbraith’s March 22, 2021 Order requiring him to pay a depositin the amount of $3,726.10 by June 30, 2021.

Instead, he has argued at the September 3, 2021, and the November 2, 2021 courtappearances that he could not afford the deposit. Although he suggested he could pay a lesser amount, Brooklyn Anderson never actuallypaid any amount into court. [85] In Karcher Estate v. Matson, 2018 BCPC 54 , Judge Mrozinski canvassed the principles applicable to a motion to setaside a default order as espoused by Justice Hinds in Miracle Feeds v. D & H Enterprises Ltd. Judge Mrozinski cited Lou GuidiConstruction Ltd. v. Fedick, [1994] B.C.J.

No. 2409, wherein Judge Stansfield held that given the purpose of the Small Claims Act andthe preponderance of self-represented litigants in this Court, the application judge should generally place greater weight on the merits ofthe defence than on the reasons for the default. In Davis v. Carlaw, [1995] B.C.J. No. 2807, Judge Stansfield clarified the court must stilldetermine whether the defendant wilfully or deliberately, or recklessly failed to file a reply.

He set out the following factors anapplications’ judge may wish to consider: 30 . . . a. the age, background and commercial sophistication of the defendant b. whether the defendant ever previously has been a party to litigation; c. whether there is any fact from which it might be inferred that the defendant understood the need to file a reply (or take whateverother step was required under the Rules, but not pursued), but knowingly chose not to or neglected to do so, and d. whether there is any suggestion that the defendant has in any way acted in a manner which could be characterized as beingcontemptuous of the process of the court. [86] Judge Mrozinski also referenced Rudrakumar & Pawar v.

FIC Investments et al, 2011 BCPC 46 (Can LII), wherein JudgePhillips refused an application to set aside a default order granted when the defendants failed to attend a settlement conference on thegrounds they had not established their failure to attend was not wilful or deliberate. In Rudrakumar, Judge Phillips found the defendants’inaction determinative: [38] This is not a situation wherein procedural notice was not given to a party; rather the defendants' position here is that the notice,properly sent, was not seen by them. They have only themselves to blame for that.

But what is more significant in my opinion, is thatdespite the passage of a considerable amount of time, neither Lathigee nor Pasquill did anything at all to check on the status of thesecourt cases. Both men are reasonably sophisticated litigants and familiar with court processes and legal matters due to their corporatework and the real estate investigation. Consequently, they had to have known that by failing to make any inquiries at all into the claimsbrought by Rudrakumar and Pawar, they were avoiding the processes of the court at their peril. [87] In Karcher Estate v.

Matson, the applicant claimed she had not opened the registered letter containing the Notice of Claim. JudgeMrozinski comments: [22] . . . The idea that the applicant did not open the registered letter upon attending at the post office and signing for it because sheconfused it for a registered letter she had once received from Coast Capital is at the very least suspect. [23] Secondly, the applicant has to take responsibility for her wilful failure to open mail delivered to her residence in a timely manner orat all unless she recognized by looking at the envelope whether it was a priority or not.

It is conduct that should not be lightlycountenanced. [88] Applying the factors Judge Stansfield identified in Davis v. Carlaw, Judge Mrozinski allowed the defendant’s application inKarcher Estate v. Matson. Although she described the applicant’s excuse for not opening the registered letter as feeble, Judge Mrozinskidetermined there was insufficient evidence on which the court could infer the applicant understood the need to file a reply.

Merits of the Defence [89] The documents Brooklyn Anderson placed before the court indicate that on August 30, 2016, Doug Brown, Chief Pilot for NTAir, offered Brooklyn Anderson the position of First Officer with NT Air assigned to the Beech 1900 fleet based in Vancouver, BC.Brooklyn Anderson was to commence ground school on September 20, 2016, at YVR South Terminal. Brooklyn Anderson accepted theoffer later that same day and advised NT Air he would tender his two weeks’ resignation to his Canwest Air the next day.

Doug Brownresponded that when he was back in the office, he would “start to sort out employment paperwork and assigning courses”. NT Air madeno mention of any Training Bond in its initial employment offer. Brooklyn Anderson gave Canwest Air two weeks’ notice terminatinghis employment in Fort McMurray, Alberta, on September 17, 2016. On September 1, 2016, Doug Brown enrolled Brooklyn Andersonas a student in NT Air’s online training centre in a number of online courses, which Brooklyn Anderson successfully completed. It was

not until September 20, 2016, after he had relocated to the Lower Mainland and attended ground school, that NT Air presented BrooklynAnderson with the Training Bond Agreement. Brooklyn Anderson claims NT Air told him if he did not sign the Training BondAgreement, it would rescind its offer of employment. Brooklyn Anderson said he was blindsided with the Training Bond Agreement.

Hefelt “cornered” because he could not afford to be unemployed and so signed the Training Bond Agreement. [90] As to his counterclaim, Brooklyn Anderson says NT Air refused to pay him any salary during his on-line training period betweenSeptember 6 –10, 2016, or during ground school and flight training from September 20 to October 2, 2016.

Brooklyn Anderson says thistoo was not disclosed to him prior to his accepting NT Air’s offer of employment. [91] The practice of transferring the cost of training onto the pilot in the airline industry has often been litigated before the court:171817 Canada Inc. v Foris, (NWT SC); Karroll v. Silver Star Mountain Resorts Ltd., (BC SC);West Wind Aviation Inc. v. Thompson, [2000] S.J. No. 715 (Sask. Q.B.); Alkan Air Ltd. v. Hatley, 2000 Y.J. No. 125; Chartright Air Inc.v. De Paoli, (ON SC); North Cariboo Flying Services Ltd v. Goddard, 2009 ABPC 219 ; NorthernThunderbird Air Inc. v.

Van Haren, 2011 BCSC 837 ; Fireweed Helicopters Ltd. v. Varga, 2013 YKSM 9 ; Langford v.Carson Air Ltd., 2015 BCSC 1458; Wildcat Helicopters Inc. v. Ellis, 2016 BCSC 2214 . [92] Before the CRT, NT Air relied on Langford v. Carson Air Ltd., 2015 BCSC 1458 , wherein Chief Justice Hinksonconsidered the legality and enforceability of Training-Bond agreements in the aviation industry. In that case, Valerie Langford, a pilotand new employee, signed a two-year Training-Bond contract with Carson Air which estimated the cost of training to be $25,000. TheTraining Bond required Ms.

Langford to repay the full amount owing to Carson Air if she resigned or her employment was terminated.Carson Air terminated Langford’s employment during her six-month probationary period. She sued Carson Air seeking damages for,among other things, wrongful dismissal, and Carson Air counter-claimed seeking payment of the $23,408.64 outstanding on the TrainingBond. [93] Ms. Langford argued the court should not give effect to the Training Bond because she was jet-lagged and did not feelcomfortable when she signed it. She claimed she signed the Training Bond under duress.

Langford failed to establish the elements forthe defence of duress and the BC Supreme Court allowed Carson Air’s counterclaim for the $23,408.64 balance owing under theTraining Bond. The court took into consideration the Training Bond contained a term whereby Langford agreed she had been given theopportunity to seek legal advice about its terms. Ms. Langford did not attempt to contact or speak with anybody about the contract priorto signing it. [94] Langford v.

Carson Air confirms that Training Bonds in the airline industry may be enforceable where an employee is properlyterminated during a probationary period and where the Training Bond properly advises the employee that he or she can seek advice aboutits contents. In this respect, Langford v. Carson Air is distinguishable from the case before me. [95] Training-Bond contracts have withstood defences of unconscionability, illegality, and duress, but not lack of consideration. InNorthern Thunderbird Air Inc. v.

Van Haren, 2011 BCSC 837 , Madam Justice Balance upheld on appeal the trial judge’sdecision that NT Air’s Training Bond was not enforceable due in part to a lack of consideration. In that case, at the time he entered intothe Training-Bond contract, the defendant pilot had already received all his training on the aircraft. Mr. Van Haren did not receive anyfurther training and no new consideration passed from NT Air in exchange for Mr. Van Haren’s agreement. Hence, there was noconsideration for Mr.

Van Haren’s promise to repay the damages fixed by the Training-Bond contract. [96] In this case, after a review of the pleadings and case law, I cannot say whether or not a trial judge would find the Training-Bondagreement enforceable against Brooklyn Anderson in the circumstances in which it was presented and signed. In other words, I amsatisfied Brooklyn Anderson has an arguable case on its merits. [97] Brooklyn Anderson also contests CRT’s ruling that the Employment Standards Act does not apply to this dispute. This aspect ofhis defence and counterclaim has no merit.

The Employment Standards Act applies to all provincially-regulated employees other thanthose excluded by regulation. Airlines are federally-regulated companies; thus, the Canada Labour Code, R.S.C. 1985, c. L-2, applies. Conclusion [98] Although I am not prepared to say Brooklyn Anderson’s case is devoid of merit, I am not satisfied a default order ought not to bemade against him. In reaching this conclusion, I have taken into consideration the following: a.

Brooklyn Anderson had 26 days’ notice of the April 26, 2019 hearing at which Judge Mengering ordered him pay a $3,500 deposit inthe Provincial Court of British Columbia; b. Brooklyn Anderson’s explanation that he simply left the package of documents NT Air sent to him by registered mail unopened forsome indeterminable time does not even rise to the level of a “feeble” explanation”. Brooklyn Anderson never does state in his affidavitwhen he finally did open NT Air’s materials sent to him on March 20, 2019, which he apparently signed for on April 1, 2019; c.

If Brooklyn Anderson did simply leave the package of documents unopened, then he did so unreasonably and recklessly. He had fileda Notice of Objection indicating he wanted this matter retried in BC Provincial Court. He knew or ought to have known the materialsfrom NT Air related to these proceedings. In the CRT, Brooklyn Anderson filed a response and counterclaim. In my view, BrooklynAnderson knew or ought to have known that something was required of him and he knowingly chose to ignore the process; d. Brooklyn Anderson admits he was aware of Judge Mengering’s April 26, 2019 Deposit Order as of August 30, 2019.

He did notapply to set aside or vary the Deposit Order until July 13, 2020 (14 months later), after Registrar Baylis had granted NT Air’s applicationfor a default order; e. On March 22, 2021, at the hearing of Brooklyn Anderson’s July 13, 2020 Application, RAJ Galbraith conducted an inquiry intoBrooklyn Anderson’s financial circumstances and ordered Brooklyn Anderson to pay into court a deposit, this time in the amount of$3,726.10, the sum awarded by the CRT. RAJ Galbraith ordered the deposit paid by June 30, 2021;

f. RAJ Galbraith’s March 22, 2021 Order requiring him to pay a deposit into court was discussed at length at the hearing before Judge Malfair on September 3, 2021, and again at the hearing before me on November 2, 2021; g. Brooklyn Anderson has not formally applied to set aside or vary RAJ Galbraith’s March 22, 2021 Order, but rather argues he cannot afford to pay the deposit; h. Brooklyn Anderson has not complied in whole or in part with RAJ Galbraith’s March 22, 2021 Deposit Order; and i. Brooklyn Anderson’s November 17, 2020 Affidavit reiterates the arguments made before the CRT.

I draw no conclusions whether this Court would or would not reach the same conclusion as the CRT. I do not find all of Brooklyn Anderson’s defences baseless; similarly, I cannot say his counterclaim is entirely without merit. [ 99 ] In weighing the reasons leading to Brooklyn Anderson’s default in making a deposit into court against the merits of his defence to NT Air’s claim, I am mindful of Judge Stanfield’s decision in Davis v. Carlaw . I must consider whether Brooklyn Anderson’s act of default was reckless, wilful or deliberate. In Forgotten Treasures International Inc. v.

Lloyd’s Underwriters , 2020 BCCA 341 , the appellate court noted (at para. 19) that “It is settled law that wilful delay carries with it the connotation of blameworthy conduct.” A defendant’s failure to defend the claim may be “purposeful, deliberate or intentional” but, depending on the circumstance, may or may not constitute blameworthy conduct. [ 100 ] In this case, Brooklyn Anderson’s initial default of Judge Mengering’s Deposit Order was the result of him wilfully or recklessly ignoring or neglecting the Provincial Court process he initiated with his Notice of Objection.

Brooklyn Anderson admits in his July 13, 2020 Affidavit (CEIS document 17), he learned of Judge Mengering’s Deposit Order on August 30, 2019, yet did not file his Application to set aside that order until July 13, 2020. When Judge Galbraith afforded him another opportunity to pay the deposit before June 30, 2021, he did not do so in whole or in part. I conclude that Brooklyn Anderson’s default of RAJ Galbraith’s March 22, 2021 Order was wilful and not through inadvertence or oversight. Brooklyn Anderson was aware he was required to pay a deposit by August 30, 2019, at the latest.

He has failed or refused to pay the court-ordered deposit, or any portion thereof, then or since. When he finally did appear before the court, Brooklyn Anderson repeatedly suggested to the presiding judge that he had no notice of these proceedings, notwithstanding his own affidavit evidence indicating otherwise.

In the hearing of November 2, 2021, Brooklyn Anderson initially represented that when NT Air posted the court documents to him by registered mail in March 2019, he was in the midst of moving with his family from his former residence at [omitted for publication] Road, Richmond, BC, to his current residence at [omitted for publication] Street, Surrey, BC. Brooklyn Anderson later admitted he did not take possession of the Surrey residence until August 2020. Even then, he had a two-year mail forwarding service with Canada Post.

Brooklyn Anderson also claimed he could not pay the deposit because of the impact of COVID-19, which did not manifest itself until the spring of 2020, a year after NT Air initiated the proceedings in Provincial Court. [ 101 ] In my view, Brooklyn Anderson has conducted himself in such a manner as to purposefully, deliberately and intentionally delay these proceedings. Given almost three years have passed since NT Air filed its Notice of Civil Resolution Claim with this Court, he has largely succeeded in that goal.

Accordingly, I find Brooklyn Anderson’s conduct in failing to pay the deposit, or any portion thereof, constitutes blameworthy conduct. [ 102 ] In conclusion, I find and order: a. Brooklyn Anderson is in default of RAJ Galbraith’s March 22, 2021 Order, by failing to make a deposit into Provincial Court pursuant to

section 56.3 of the Civil Resolution Tribunal Act in the amount of $3,726.10 by June 30, 2021; b. Pursuant to Small Claims Rule 1.1(41.11) Brooklyn Anderson is found to be indebt to NT Air under the Training Bond Agreement and Promissory Note in the amount of $3,500, as of October 17, 2017; c. NT Air is entitled to pre-judgment interest pursuant to the Court Order Interest Act (“ COIA ”), from October 17, 2017, the day after Brooklyn Anderson’s last day of employment, until January 19, 2022, the date of these Reasons for Judgment; d.

NT Air is entitled to reimbursement from Brooklyn Anderson of $175 for its fees paid to the Civil Resolution Tribunal; e. NT Air is entitled to reimbursements from Brooklyn Anderson for its costs totalling $132 incurred in these Provincial Court proceedings, including filing and service fees; f. The Registrar will forthwith issue a Summons to Payment Hearing to Brooklyn Anderson in the amount owing to NT Air inclusive of principal, court-ordered interest, CRT fees, and Provincial Court filing and service fees; g.

If Brooklyn Anderson has not paid NT Air the full amount owing under these Reasons for Judgment, then the Payment Hearing will proceed in Prince George Provincial Court before me on February 23, 2022 at 9:30 a.m. in Courtroom 102 ; h. The representative of NT Air and Brooklyn Anderson have leave to appear at the February 23, 2022 Payment Hearing remotely by telephone or MS Teams upon filing a requisition with the Prince George Provincial Court Registry; i.

If Brooklyn Anderson does not appear at the February 23, 2022 Payment Hearing without lawful excuse, NT Air is at liberty to request a warrant for his arrest; j. Brooklyn Anderson must file with the Prince George Provincial Court Registry on or before February 17, 2022, in advance of the February 23, 2022 Payment Hearing: 1. the legal name and address of his current employer and his employee identity number; 2. documentation relevant to his means and circumstances, including, without limitation:

i. a copy of each of Brooklyn Anderson’s three most recent income tax returns filed with Revenue Canada and of the assessment notice that relates to each of those returns; ii. a copy of each pay stub or similar statement received during the past six months by or on behalf of Brooklyn Anderson from his employer to account for Brooklyn Anderson’s employee income and deductions; iii. a copy of each statement of income other than employee income received during the past six months by or on behalf of Brooklyn Anderson, including C anada Emergency Response Benefit ( CERB ), unemployment insurance, disability, pension, superannuation and workers' compensation benefits; iv. a copy of the most recent assessment notice for each property in which Brooklyn Anderson holds a beneficial interest; v. particulars of all vehicles, vessels, or aircraft registered in Brooklyn Anderson’s name; vi. a copy of each statement of account Brooklyn Anderson received during the past 12 months from a bank, savings institution, insurer, broker or other investment institution; and vii. a copy of each credit card statement Brooklyn Anderson has received during the past 12 months. k.

The court registry will serve Brooklyn Anderson with a copy of these Reasons for Judgment, my final Order and the Summons for Payment hearing by regular mail and email at: Brooklyn Anderson, [omitted for publication] Street, Surrey, BC, V4P 3M6, and by email: [omitted for publication]; l. The Payment Hearing will proceed before me on February 23, 2022, at 9:30 a.m. in Courtroom 102 for one hour unless this Court otherwise orders. _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia