Hammersmark v. ICBC, 2019 BCPC 81

Citation: Hammersmark v. ICBC 2019 BCPC 81 Date: 20190418 File No: 1963369 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: ALLEN HAMMERSMARK CLAIMANT AND: ICBC and GESTIONS JONATHAN GAGNE LTEE/JONATHAN GAGNE HOLDINGS LTD. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Appearing on his own behalf: A. Hammersmark Appearing for ICBC : K. Halliday Counsel for Gestions Jonathan Gagne Ltee/ Jonathan Gagne Holdings Ltd. : F. Hodal Place of Hearing: Vancouver , B.C. Date of Hearing: April 5, 2019 Date of Judgment: April 18, 2019

REASONS Introduction [ 1 ] Allen Hammersmark is the initiating party of a claim brought to the Civil Resolution Tribunal (“ CRT ”) against the two responding parties, ICBC and Jonathan Gagne Ltee/Jonathan Gagne Holdings Ltd. [ 2 ] Jonathan Gagne Ltee/Jonathan Gagne Holdings Ltd. applies for an order that the CRT not adjudicate this claim pursuant to s. 12.1 of the Civil Resolution Tribunal Act (“ CRTA ”). Since the filing of the application, the CRTA was amended and the applicable

section of the Act is now

section 16.2. [ 3 ] Counsel for Jonathan Gagne Ltee/Jonathan Gagne Holdings Ltd. concedes that if I rule that the CRT not adjudicate the claim, the CRTA permits the claim to be pursued in the Small Claims Court. Counsel nevertheless invites me to consider dismissing the claim outright at this stage. [ 4 ] Mr. Hammersmark opposes the application. [ 5 ] ICBC takes no position. [ 6 ] No affidavit materials were filed in support or in opposition of this application.

I was advised by counsel for the applicant that the Court Registry does not permit the filing of affidavits in relation to applications for exemption from the CRT. Rule 16.1 of the Small Claims Rules also appears not to contemplate the filing of affidavits in support of this application. As such I must rely upon the submissions of the parties and the documents filed pursuant to Rule 16.1(4). The Legislation [ 7 ] Sections 16.2 and 16.3 of the CRTA states as follows: Court may order that tribunal not adjudicate claim 16.2

(1) Subject to subsection (2), the court may order that the tribunal not adjudicate a claim that is or purports to be in one of the claim categories 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) (

b) does not apply if the tribunal has exclusive jurisdiction in respect of the claim. Considerations in the interest of justice and fairness 16.3

(1) For the purposes of sections 16.1 (1) and 16.2 (1), when deciding whether it is in the interests of justice and fairness for the tribunal to adjudicate a claim, the 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 that court to establish a precedent; (

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

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

f) whether the use of electronic communication tools in the adjudication process of the tribunal would be unfair to a party in a way that cannot be accommodated by the tribunal.

(2) For the purposes of

section 16.1 (2), when deciding whether it is in the interests of justice and fairness for the tribunal to make the determination referred to in that subsection, the court may consider the principle of proportionality. [ 8 ]

Section 16.3 of the CRTA permits a claim to be continued in a court if an order is made that the CRT not adjudicate a claim. History of Proceedings [ 9 ] On June 27, 2018 Allen Hammersmark filed a CRT claim against Canadian Tire Corporation, Limited. The Claim

Summary stated: Brake failure caused by oil contaminated brake fluid resulting in total repalcement ( sic ) of braking system. [ 10 ] Mr. Hammersmark stated in a

section titled Requested Resolution “I want Canadian Tire to compensate me and investigate who did this.” Mr. Hammersmark sought compensation in the amount of $3,462.69, being the claimed repair costs. [ 11 ] On October 5, 2018, Mr. Hammersmark amended his claim. The original responding party, the Canadian Tire Corporation,

Limited, was replaced by three parties: D & T Cummins Enterprises Ltd., Gestions Jonathan Gagne Ltee/Jonathan Gagne Holdings Ltd.,and Vicki Gould Holdings Ltd. Counsel for the applicant advised me that each of these responding parties are franchise holders for aparticular Canadian Tire store. [12] The description of the claim as was set out originally as against Canadian Tire Corporation, Limited remained the same as didthe Requested Resolution. [13] On January 3, 2019, Mr. Hammersmark amended his claim for a third time.

He removed two of the responding parties, leavingGestions Jonathan Gagne Ltee/Jonathan Gagne Holdings Ltd., and adding ICBC as a new responding party. The description of the claimremained the same. The claim under Requested Resolution remained the same. [14] On January 24, 2019, Mr. Hammersmark amended his claim for a fourth time. The description of the claim remained the same.However, Mr. Hammersmark changed the

section titled Requested Resolution, now stating as follows: Requested Resolution 1. I want Canadian Tire to compensate me for the cost of the labour repairs ($2040.22) and investigate who added oil to the brakefluid. $2040.22 2. I want ICBC to acknowledge that this is

an act of Vandalism covered under the Comprehensive coverage and indemnify me forthe replacement parts ($1382.47) for the Vandalism and the mental and emotional stress this has caused me since March 13, 2018.$1382.47 [15] The total claim remained $3,422.69. The Position of Jonathan Gagne Ltee/Jonathan Gagne Holdings Ltd. [16] The applicant provided written submissions setting out why the claim should not be permitted to proceed. I note that in thosewritten submissions, Mr. Hammersmark is referred to as the “Claimant”, whereas in CRTA proceedings he is properly referred to as the“initiating party”.

The submissions state: 15. The Claimant is on a fishing expedition, as such, the Claimant’s claim should not be permitted to proceed any further based on:

a) The Claimant’s lack of basis to support a causal link between the Applicant and the event which the Claimant claims caused him toinitiate the original CRT Claim;

b) That the Claimant had no evidence to support his claim;

c) That between the Claimant’s last interaction with the Applicant and the event that caused the Claimant to initiate the CRT Claim, theClaimant had driven his vehicle for 981 kilometers without issue;

d) That the Claimant knowingly advanced a claim against parties he has improperly named; and

e) Further particulars of which the Applicant may advise. 16. In the alternative, even if the Claimant’s claim does not contain a discernable cause of action, the Claimant has completely failed toestablish a proper nexus between the events upon which the Claimant’s claim rests and the Applicant. [17] The applicant did not advise me of any further particulars. [18] The applicant says that it did service Mr. Hammersmark’s vehicle, which Mr. Hammersmark says occurred in January 2018.The brake failure occurred in March 2018. The applicant says there is no evidence to tie its service job to the brake failure. The Position of Allen Hammersmark [19] Mr. Hammersmark provided me with a written

summary of his claim. He stated that there was evidence that oil was depositedinto the brake reservoir of his vehicle, causing a brake failure. Since January 2017, his vehicle was only serviced by three Canadian Tirefranchises. Mr. Hammersmark says that on January 20, 2018, the Canadian Tire store located in Tsawwassen, BC, which is owned andoperated by the applicant, performed an oil change on the vehicle. The vehicle brakes subsequently failed in March 2018. [20] Mr.

Hammersmark further states: …While I cannot pinpoint who did what or when (although I asked CTC for an investigation), nor can I prove that the damage was bydesign (I policed in Delta for close to 30 years retiring as S/Sgt. Criminal Investigations) or default (the location of the brake fluidreservoir is very close [to] the anti freeze reservoir and not far from the power steering reservoir) I can prove through documentation andsworn testimony that they were the only ones to service the truck and they failed in their duty of care for the customer. [21] Mr.

Hammersmark appears to be asking the CRT to infer negligence by the applicant based on the circumstances, a concept thatmay be best described in law by the legal maxim res ipsa loquitur, a Latin phrase that translates to “the thing speaks for itself.” TheSupreme Court of Canada discussed this legal concept in the decision Fontaine v. British Columbia (Official Administrator), (SCC), [1998] 1 SCR 424, stating at paragraph 27: 27. It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate componentin negligence actions.

After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensiblydealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the

plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has doneso, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed. [22] Mr. Hammersmark further says that his claim is a simple case for which the CRTA was designed to handle. The Application for Exemption [23] There is very little in the way of Court decisions dealing with an application for exemption. [24] The decision Yas v.

Pope, 2018 BCSC 282 dealt with an application to the BC Supreme Court that the CRT be prevented fromdealing with two claims involving a strata property pursuant to s. 12.2 of the CRTA as it then stood. In that case, the court focused on thefactors set out at s. 12.3 of the CRTA (now

section 16.3) in deciding whether it was in the interest of justice and fairness for the CRT toresolve the dispute. Any such assessment of course depends on the particular facts of each case. [25] In McTavish et al. v. 1534 Harwood Street (St. Pierre) Ltd., 2018 BCPC 392, I considered an application for exemption fromthe CRT and also considered the factors now listed at s. 16.3 of the CRTA. [26] Although the applicant argues that it is not in the interests of justice and fairness for the CRT to adjudicate the claim, theapplicant does not rely upon any of the factors cited in s. 16.3 of the CRTA. In review of those factors, none of the considerations listedat ss. 16.3(1)(

a) to (

f) have any application to this case. [27] The applicant submits that s. 16.3 still permits the court to take into consideration factors other than those listed in s. 16.3 whendeciding whether it is in the interests of justice and fairness for the tribunal to adjudicate a claim.

Section 16.3 of the CRTA expresslystates that “the court may consider the following...” [emphasis added]. The

section is permissive and does allow the court to considerfactors other than those listed at s. 16.3. Indeed, I did so in McTavish et al. v. 1534 Harwood St. (St. Pierre) Ltd., at paragraphs 45 to 47. [28] The gist of the applicant’s argument is that there is no evidence to support the claim. Furthermore, the four amendments madeto the claim are indicative of a “fishing expedition” wherein Mr. Hammersmark is effectively searching for a party to be held liable. [29] The applicant further states in its written submissions: 7.

When determining whether an action should be struck Courts have considered the following: a. Even if the facts are pleaded are true, those facts disclose no reasonable cause of action and do not advance a claim known in law; b. The pleadings are without substance in that they are groundless, fanciful and trifle with the Court’s time; c. The pleadings are not bona fide, are oppressive and are designed to cause the Defendants anxiety, trouble and expense; d. The action is brought for an improper purpose, particularly the harassment and oppression of the Defendants. R. v.

Imperial Tobacco Canada Ltd., 2011 SCC 42 , [2011] 3 S.C.R. 45, at para. 17. Gateway Building Management Ltd. V. Randhawa, 2013 BCSC 350, at paras. 17-18. 8. At best, the Claimant’s claim contains groundless speculation in hopes of finding some evidentiary basis for his assertions throughgood faith disclosure. Although the approach is to take the facts pleaded as true, the allegations may not be based upon speculation orassumption, or be unconnected to real facts. Singh v.

Nielsen, 2016 BCSC 2420, at para 6-7. [30] In my view it is a mistake to require the same level of detail in pleadings expected in a Supreme Court case for a claim underthe CRTA. The required forms under the CRTA do not require such. A requirement for detailed pleadings is also contrary to thesimplified processes under the CRTA. [31] I am not aware of any caselaw that deals with the pleadings in a CRT action.

There is caselaw that discusses pleadings in SmallClaims Court actions, a court which is intended to resolve disputes in a “just, speedy, inexpensive and simple manner”: see s. 2(1) of theSmall Claims Act, [RSBC 1996], c. 430. The purpose of the CRT is similar. Section 2(2)(

a) of the CRTA states:

(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… [32] The decision Ginther v. Rossum, 2012 BCPC 51 stated at paragraph 23 that the court should not expect from an unrepresentedclaimant in a Small Claims Court action the same standard expected from a lawyer when preparing pleadings. This statement is equallyapplicable to claims under the CRTA, and in particular to the initiating party, Mr. Hammersmark, who does not have the assistance of alawyer. [33] In the decision Menzies v. Owners, Strata Plan NW2924, 2014 BCPC 216, the court stated: [11] Ms.

Menzies has brought her action as a lay litigant and, as such, her originating process (that is, her Notice of Claim) must betreated liberally, particularly in relation to characterising the cause or causes of action she has raised. In this regard I respectfully adoptthe reasoning of Green J.A. (Mahoney and Marshall, JJ.A., concurring) in Popular Shoe Store Ltd. v. Simoni (1998) (NL CA), 24 C.P.C. (4th) 10 (Nfld. S.C. – A.D.) who stated, at paras. 24-25, the following:

“Particularly in Small Claims Court, where claimants, as here, are often unrepresented, a liberal approach ought to be taken to thepleadings that are presented so as to ensure that access to proper adjudication of claims is not prevented on a technicality. Even insuperior court, the basic rule of pleading is that a party must plead material facts and is not required, as a condition of relief, to be correctin fitting those facts, as a matter of pleading, into a particular legal pigeon-hole.

This is particularly appropriate for litigation in the SmallClaims Court where technicalities are to be avoided and unrepresented parties (as Popular and Mrs. Claeys were in this case) are requiredto express their claims in their own words. If a claimant by his or her pleading or evidence states facts which, if accepted by the trier offact, constitute a cause of action known to the law, the claimant should prima facie be entitled to the remedy claimed if that isappropriate to vindicate that cause of action.

The only limitation would be the obvious one that if the case takes a turn completelydifferent from that disclosed or inferentially referenced in the Statement of Claim, thereby causing prejudice to the other side in beingable properly to prepare for or respond thereto, the court may either decline to give relief or allow further time to the other side to make aproper response.

A Small Claims Court judge has a duty, on being presented with facts that fall broadly within the umbrella of the circumstancesdescribed in the Statement of Claim, to determine whether those facts constitute a cause of action known to the law, regardless ofwhether it can be said that the claimant, as a matter of pleading, has asserted that or any other particular cause of action.

Subject toconsiderations of fairness and surprise to the other side, if a cause of action has been established, the appropriate remedy, within thesubject-matter jurisdiction of the court, ought to be granted.” [12] In the present case, Ms. Menzies cannot and should not be held in this court to the standard of pleading to which a litigantrepresented by counsel here or before the Supreme Court of British Columbia would ordinarily be held. Other similarly situated laylitigants have not been held to such a standard: see, for example, Rosic v. Mayer, [2005] O.J.

No. 3529 at paras. 7ff (S.C.J.), Oasis MotorHome Rentals v. Thomas, 2001 NSSC 45 , [2001] N.S.J. No. 112 (S.C.), Arndt v. Vancouver International Primary andSecondary School Society (coba Greybrook Academy), [2014] B.C.J. No. 1100 at paras. 21-22 and 36 (Prov. Ct.), Fudge v. Strata PlanNW 2636, [2012] B.C.J. No. 2358 at paras. 4-6 (Prov. Ct.) and High Country Outfitters Inc. v. Pitt Meadows (City), [2012] 71 C.E.L.R.(3d) 190 at paras. 12ff (B.C. Prov.

Ct.). [34] Given the simplified procedures found under the CRTA, caution must be used when referring to BC Supreme Court casesdiscussing the requirements and expectations for pleadings in that court. [35] The essential nature of Mr. Hammersmark’s claim was set out in his Dispute Notice. His vehicle was serviced at a CanadianTire location. Some time later the brakes on his car failed, apparently by oil contaminating the brake fluid. The evidence in support of theclaim is listed in the Dispute Notice. [36] Mr.

Hammersmark is not required to provide the level of detail in his pleadings filed with the CRT as may be expected from alitigant in the Supreme Court. The allegations set out in the Dispute Notice provide a brief description of the facts supporting the claim.In my view, this is sufficient for the purposes of the CRTA. [37] The applicant further argues that the various amendments made by Mr. Hammersmark are a “fishing expedition” and indicativeof a weak and groundless case.

It appears to me that each successive amendment was made to narrow the claim down to the specificCanadian Tire franchisee and to add in ICBC based on possible insurance coverage for the damage. Given that Mr. Hammersmark lackslegal assistance, his uncertainty of the proper responding parties is understandable, especially when dealing with multiple franchisecompanies operating under the common business name of Canadian Tire. Taking into account the nature of the various amendments tothe Dispute Notice, I do not find there to be an abuse of process. [38] The applicant also argues that Mr.

Hammersmark has no evidence to support his claim. Whether that is the case is to bedetermined at a hearing, and not in an application for exemption, made without even the benefit of affidavit evidence. I note that none ofthe considerations listed in s. 16.3 require the weighing of evidence. In my view, an application for exemption should not involve aweighing of the evidence, other than what might be required to assess the importance or complexity of an issue.

The Application to Dismiss the Claim [39] There is no statutory authority under the CRTA or the Small Claims Act for the Provincial Court to dismiss a claim filed with theCRT, even if I should conclude that there is no prospect of success. The Small Claims Court is not a court of inherent jurisdiction. Thepowers held by the court are powers bestowed upon it by legislation. In order for this court to dismiss a CRT claim, specific statutorypower to do so must be granted to this court, which has not occurred: see Dalla Rosa v.

Town of Ladysmith, 2017 BCPC 178. [40] The specific power of a Small Claims Court to dismiss a claim is found at Small Claims Rule 7(14)(i), which is a power held bya settlement conference judge: see for instance Lura v. Jazz Forest Products

(2004) Ltd., 2014 BCPC 14. This power applies only toclaims filed with the Small Claims Court and not the CRT. Mr. Hammersmark’s claim must first be brought into the Small Claims Courtbefore this court can consider an application to dismiss the claim under Rule 7(14)(i). The Small Claims Court lacks the statutory powerto dismiss a claim that remains with the CRT.

Section 35 of the CRTA [41]

Section 35 of the CRTA sets out a procedure for when a case manager considers a claim to have no reasonable likelihood ofsuccess. The

section allows a case manager to dismiss a claim if the case manager is also a tribunal member. Alternatively, the casemanager may refer the file to the tribunal for further action. The

section reads: Referral to tribunal if claim has no reasonable likelihood of success 35

(1) At any time in the case management phase, if the case manager considers that a claim in a dispute has no reasonable likelihood ofsuccess or gives rise to an abuse of process, the case manager may, (

a) if the case manager is a tribunal member, exercise tribunal authority under this

section without assignment under

section

80 [assignment of case managers and tribunal panels] , and (

b) in any case, refer the claim to the tribunal.

(2) If a claim is to be dealt with under this section, the tribunal must review the claim in accordance with the rules and may, following the review, (

a) make an order dismissing the claim if the tribunal considers that the claim is frivolous, vexatious or an abuse of process, or (

b) direct that the claim is to continue to be dealt with by the tribunal proceeding.

(3) The tribunal must give reasons for dismissing a claim under subsection (2) (a).

(4) If the reasons provided under subsection (3) are not formal written reasons, the party whose claim has been dismissed may request that the tribunal provide formal written reasons for the decision, in which case the tribunal must provide those reasons within the time period established by the rules.

(5) A dismissal order under subsection (2) (

a) may include a requirement for payment, as described in

section 49 [order for payment of expenses] , by the party who made the claim that is being dismissed. [ 42 ] The written submissions from the applicant state that on December 13, 2018, the applicant requested that the case manager dismiss the claim against the applicant. I was not told if this request was made pursuant to s. 35.

The submissions also do not indicate what the response of the case manager was but I presume that since this matter is still ongoing the application to dismiss was refused. [ 43 ] On the assumption that the CRT case manager refused an application to dismiss the claim pursuant to s. 35 of the CRTA , and the applicant disagrees with this decision, then the applicant may seek a judicial review under the Administrative Tribunals Act : CRTA s. 56.6.

If there was a case manager decision not to dismiss the claim, then a subsequent application to this court to dismiss the claim is an attempt to re-litigate that same issue. If such is the case, then this is improper. Conclusion [ 44 ] I am not satisfied that for reasons of justice and fairness, the CRT should not adjudicate this claim. The claim will therefore remain with the CRT for adjudication. In such a situation, there is no authority for this court to dismiss a claim that remains with the CRT. Accordingly, I dismiss the application. ________________________ The Honourable W. Lee Provincial Court Judge