Brown v. RE/MAX Select Realty, 2020 BCPC 250

Citation: Brown v. RE/MAX Select Realty 2020 BCPC 250 Date: 20201229 File No: 200017 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ROBIN BROWN and 0964919 BC LTD CLAIMANTS AND: RE/MAX SELECT REALTY, KEITH ROY PERSONAL REAL ESTATE CORPORATION, REAL ESTATE COUNCIL OF BC, LUCKY CAT HOLDINGS LTD., GREG DENT, DEBORAH STELLINWERFF, TARYN LEES DEFENDANTS RULING ON APPLICATION OF THE HONOURABLE JUDGE L MROZINSKI Appearing for the Claimants: R. Brown Counsel for the Defendants: Cordell Counsel for the Defendant Real Estate Council of BC A. Murray, Q.C. Place of Hearing: Victoria , B.C. Date of Hearing: December 9, 2020 Date of Judgment: December 29, 2020

I. Introduction [ 1 ] On February 1, 2018, the defendant, Lucky Cat Holdings (“Lucky Cat”), entered into an unconditional offer to purchase a property (the “Property”) in Courtenay, British Columbia, from 0964919 BC Ltd., (the “Numbered Company”). Robin Brown the sole director of the Numbered Company, and a registered real estate agent and broker, (“Mr. Brown”), acted as the agent for the seller. Keith Roy Personal Real Estate Corporation (“Mr. Roy”) acted as the agent for the buyer, Lucky Cat. [ 2 ] As a condition of the purchase agreement, Lucky Cat transferred $5,000 into the trust account of Mr.

Roy’s brokerage RE/MAX Select Realty (“RE/MAX”) as a partial deposit on the $3.5 million purchase price. The parties agreed on a closing date of August 15, 2018. [ 3 ] Several weeks after it signed the purchase agreement, Lucky Cat’s agent, Mr. Roy, discovered the Property was listed by another real estate agent for $2.995 million. Mr. Roy learned from the listing agent that the Property had been listed on behalf of a lender pursuant to an exclusive order for conduct of sale made in the British Columbia Supreme Court on November 22, 2017. Lucky Cut decided the Numbered Company, Mr.

Brown, or both, had misrepresented its authority to sell the Property. It instructed Mr. Roy that it had lost faith in the deal, and declined to proceed with the purchase. [ 4 ] Following the collapse of the sale, Mr. Brown asked RE/MAX for the $5,000 deposit. RE/MAX declined, stating it could not release the funds held in trust without either a mutual agreement, or a court order. Consequently, Mr. Brown brought a small claims action in Courtenay (the “Courtenay Action”) seeking recovery of the deposit and his legal fees totalling $4,000.

By Order dated August 14, 2019, RE/MAX was directed to transfer the deposit to Mr. Brown. The Order is silent on his claim for legal fees. [ 5 ] Mr. Brown subsequently appeared in court on September 25, 2019, on an application brought by Lucky Cat. As the applicant failed to appear, Mr. Brown was granted costs in the amount of $250.00. He submits he mentioned his application for legal fees in that appearance and was told he had to start a new action. [ 6 ] On January 16, 2020, Mr. Brown filed this claim in the Victoria Small Claims Registry. In it, Mr. Brown sets out the particulars of the collapsed sale.

He alleges that as a result of the negligence of all of the defendants, he suffered damages, including lawyer’s fees. He seeks only those fees in this claim, which are said to total $21,367.00. [ 7 ] Mr. Brown has since filed an amended claim on December 8, 2020, the day before these applications to strike were set to be heard. The amendments particularize the claim to some degree by specifying, for example, that the claim in negligence against Mr. Roy is one for negligent misrepresentation. In addition, Mr. Brown now alleges Mr. Roy is liable for the intentional tort of conspiracy.

The claim against RE/MAX is specified to be one for vicarious liability - although the general claim in negligence remains. In relation to the Real Estate Council of BC (“RECBC”), the claim is clarified to relate to a disciplinary proceeding involving Mr. Brown, in addition to a claim in negligence. [ 8 ] Each of the defendants (except Lucky Cat, which did not participate in this application) deny they have done or failed to do anything to cause Mr. Brown to suffer damages. In this hearing, each submits the claim against them is wholly and obviously without merit and should be struck before trial. Mr.

Roy, and what I will refer to collectively as the “RE/MAX” defendants, submit the claim is res judicata given the Courtenay Action. They submit also that Mr. Brown lacks standing as a claimant in this proceeding. II. The Issues [ 9 ] Although the claimants seek damages arising out of the alleged negligence and otherwise tortious conduct of each of the defendants, the case against each is quite different. Their applications to dismiss are similarly distinct. [ 10 ] In general, the claim is largely focused on the defendants Lucky Cat and Mr. Roy.

As initially drafted, it appears to be a claim against these defendants for damages in the way of legal fees arising out of a breach of contract, as well as negligence. The recent amendments add to this the tort of conspiracy and negligent misrepresentation. On this application it must be determined whether any of these claims against Mr. Roy would have any chance of success at trial, or whether it is plain and obvious that one or all cannot succeed? [ 11 ] The claim against RE/MAX is largely one for vicarious liability. Consequently, the claim will stand or fall depending on the case for Mr. Roy.

To the extent there is an independent claim against RE/MAX in negligence, I agree, as I will explain in more detail later in these reasons, that it is plain and obvious such a claim cannot succeed. [ 12 ] The other individually named defendants, Ms. Stellinwerff, Mr. Dent, and Ms. Lees, are all members of the RE/MAX realty team. Each maintain that they had no involvement in the purchase agreement. Their names appear on the contract of sale only because the RECBC requires the listing of all team members on such contracts. At the hearing, Mr.

Brown came close to conceding that there is no merit to his claim against these defendants. He claimed to be uncertain as to their role in the sale, but submitted he might be persuaded by evidence suggesting they had no involvement. Still, each of these defendants filed affidavits exactly to that effect with no apparent impact on Mr. Brown’s decision to proceed. The question with respect to the claim against these defendants is whether it ought to be struck as being frivolous or an abuse of the court’s process. [ 13 ] Mr. Roy and the RE/MAX defendants take issue with Mr.

Brown’s standing as a claimant in this small claims action. Mr. Brown is, after all, merely the agent of the Numbered Company, albeit he is its sole director. The question in this regard is whether Mr. Brown has any interest in the remedy sought, ultimately on behalf of the Numbered Company. [ 14 ] The claim against the RECBC, including the clarification in the amended claim, raises several issues. First, is it plain and obvious the RECBC does not owe the claimants a duty of care such that the claim in negligence against it has no chance of success?

Secondly, since the claim against the RECBC largely involves its role in a disciplinary proceeding, this application raises a serious question as to the jurisdiction of this Court over that subject matter.

[15] If there is a common objection that applies to nearly all of the claim, it is the submission that the matter is res judicata given theCourtenay Action. Additionally, although this was not argued at the hearing, in my view the question of this Court’s jurisdiction over theultimate remedy sought, that being Mr. Brown’s legal fees, has implications for the whole of the claim as against all of the defendants,including Lucky Cat. III. Jurisdiction to Strike [16] These applications to strike are brought outside of a settlement conference and before trial.

As a preliminary matter, it isnecessary to address this Court’s jurisdiction to strike out the claim at this stage of the litigation process. [17] The defendants all submit that this Court has jurisdiction pursuant to Rule 16(6)(

o) of the Small Claims Rules to strike this claimon these applications. Rule 16(6)(

o) is a catch-all provision that enables a judge hearing an application to make any order, in addition tothose listed in Rule 16(6), that a judge otherwise has the power to make. The power to dismiss is set out in Rule 7(14) of the SmallClaims Rules. Rule 7(14) enables a settlement conference judge to dismiss a claim if, after reviewing the filed documents and discussingthe matter with the parties, the court determines the case: (

a) Is without reasonable grounds; (

b) Discloses no triable issue; or (

c) Is frivolous or an abuse of the court’s process. [18] Judges of this Court have long held that a judge hearing an application under Rule 16(6)(

o) may also strike out a claim on thesame grounds as in Rule 7(14). This ruling can be found in a number of cases, including most recently in Klos v. Fraser Valley ChristianSoccer Association, 2020 BCPC 199; as well as in Tremino v. Aveda Institute, 2017 BCPC 348, Shantz and Gorman v. Godfroid, 2012BCPC 81, Watch Lake North Green Lake Volunteer Fire Department v. Haskins et al., 2010 BCPC 114, and Belanger v. AT &T CanadaInc., [1994] B.C.J. No. 2792. [19] There is, I agree, clear jurisdiction for this Court to consider these applications to strike at this stage of proceeding. IV.

Jurisdiction Over the Remedy Sought [20] Although the issue was not argued in this application, in my view, a troubling aspect of this claim is the remedy sought. It is aclaim brought solely for recovery of legal fees. [21]

Section 19 of the Small Claims Act specifically prohibits this Court from ordering a party in a proceeding under this Act to paycounsel or solicitor’s fees to the other party. In the result, whatever else may be said of the merit, or lack of merit of this claim against allof these defendants, I do not see how the claim can proceed if it is one for legal fees. In my view, the claim should be struck out entirelyon this ground alone. V.

Res Judicata [22] The fact this claim is one for damages for legal fees arising out of the collapsed sale, which is also part of the subject matter ofthe Courtenay Action, raises the question whether it constitutes an abuse of this court’s process. [23] In the Courtenay Action, Mr. Brown sought an order requiring RE/MAX to release to him the full deposit held in trust givenLucky Cat’s refusal to proceed with its unconditional purchase agreement. Mr. Brown also sought his legal fees incurred in respect ofthe collapsed sale. The defendants in the Courtenay Action are RE/MAX and Lucky Cat, though Mr.

Roy figures largely in theclaimants’ allegations of breach of contract. Mr. Brown was granted the deposit, but no order was made regarding his claim for legalfees. Mr. Brown submits that his application for legal fees was simply left unaddressed. [24] The order, dated August 14, 2019, is silent regarding Mr. Brown’s claim for legal fees but it is impossible to imagine the courtwould have awarded them given

Section 19 of the Small Claims Act. Still, the important point is that the claim for legal fees was alive inthe Courtenay Action, arising out of and connected to the collapsed sale agreement. [25] In this claim, Mr. Brown again seeks to recover his legal fees arising out of Lucky Cat’s failure to complete the sale. Some of theallegations, and some of the parties are different than in the Courtenay Action, but all of the parties in the claim are related to thecollapsed sale (albeit indirectly in the case of the RE/MAX defendants and the RECBC).

The latest allegations include that through thenegligence of at least some of these defendants, Mr. Brown and the Numbered Company, suffered damages – those damages being“lawyer’s fees for non-completion”, now amounting to $21,367.00. [26] RE/MAX, having been a defendant in the Courtenay Action, rightly wonders why it is once more defending against a claim forMr. Brown’s legal fees arising out of the collapsed sale. In my view, the fact Mr.

Brown has filed an action seeking the same kind ofdamages arising out of the same event (the collapsed sale) yet again raises the same question for all of the defendants herein with theexception of the claim involving the RECBC’s disciplinary proceeding. The question is whether the vast bulk of the claim is res judicataand ought to be struck out as constituting an abuse of process. [27] In John Doe (HGM #1) v. Roman Catholic Episcopal Corp. of St. John's, [2013] N.J.

No. 361, the court helpfully sets out therationale for the doctrine of res judicata at para 40 as follows: 40 The policies underlying the res judicata doctrine are the promotion of finality of litigation and the prevention of a multiplicity orfragmentation of proceedings so that "[a] person should only be vexed once in the same cause": Danyluk v. Ainsworth Technologies Inc.,2001 SCC 44, [2001] 2 S.C.R. 460 per Binnie J. at para. 18; Quinlan v. Newfoundland (Minister of Natural Resources) (2000), 2000NFCA 49 , 192 Nfld. & P.E.I.R. 144 (NFCA), per Green J.A. at para. 6. In Penner v.

Niagara (Regional Police Services Board),

2013 SCC 19, Cromwell and Karakatsanis JJ., writing for the majority, elaborated on the rationale as follows: [28] Relitigation of an issue wastes resources, makes it risky for parties to rely on the results of prior litigation, unfairly exposes partiesto additional costs, raises the spectre of inconsistent adjudicative determinations and, where the initial decision maker is in theadministrative law field, may undermine the legislature's intent in setting up the administrative regime… For these reasons, the law hasadopted a number of doctrines to limit relitigation. [28] One such doctrine to limit relitigation is the doctrine of res judicata.

The Court in St. John’s describes the doctrine at paras 42and 43 below: 42 It is generally recognized that there are two species of res judicata, or estoppel by record: cause of action estoppel and issue estoppel:Angle v. Minister of National Revenue, (SCC), [1975] 2 S.C.R. 248, per Dickson J. at p. 254. For the former category,the cause of action in the prior proceeding must be the same (i.e. not "separate and distinct") from the cause of action in the currentproceeding: Grandview (Town) v. Doering, (SCC), [1976] 2 S.C.R. 621 per Ritchie J. at p. 65; Furlong v.

AvalonBookkeeping Services Ltd., 2004 NLCA 46; 239 Nfld. & P.E.I.R. 197 per Roberts J.A. at para. 17. If the facts relied on to support thecause of action in the prior proceeding constitute substantially the same facts supporting the cause of action in the current proceeding, thecauses of action will be regarded as the same (i.e. not separate and distinct) for the purposes of cause of action estoppel, even though theactual relief sought in the two proceedings is not the same. See Donald J.

Lange, The Doctrine of Res Judicata in Canada, 3d ed.(Markham, ON: LexisNexis, 2010), pp. 147-151 and cases there cited. 43 For issue estoppel, on the other hand, the causes of action need not be the same but an issue or question fundamental to thedisposition of the previous litigation must be at issue again in the current litigation: Angle, per Dickson J. at p. 255; Quinlan at paragraph7; Furlong at paragraph 16. 44 Where cause of action estoppel is established, the party seeking to relitigate will, subject to limited exceptions, be barred fromretrying the cause of action or any claim or argument which could have been made in the prior action had the party exercised reasonablediligence.

Where issue estoppel is established, the party seeking to relitigate will, subject to limited exceptions, be barred fromchallenging the "material facts and the conclusions of law or of mixed fact and law ... that were necessarily (even if not explicitly)determined in the earlier proceedings": see Danyluk, per Binnie J. at paragraph 24. [29] In this instance, the question is one of issue estoppel at least with regard to the claim for damages arising out of the collapsedsale. In that regard, the claimants are required in law to put forward their entire claim in one action.

There is nothing in this claim, savethe allegations related to the disciplinary hearing before the RECBC, that could not have been brought forward in the Courtenay Action.It is, I find, an abuse of the process of this court to relitigate the issue of Mr. Brown’s legal fees arising out the collapsed sale after theyhave been litigated in another action. For this reason I would dismiss the claim entirely, including against Lucky Cat. While Lucky Catdid not participate in this hearing, I find it would not be a good use of this court’s time, or frankly that of Mr.

Brown’s to allow the claimagainst Lucky Cat to proceed when it too is an abuse of process. [30] For the reasons given, I find firstly that the whole of the claim ought to be dismissed as against all of the defendants, includingLucky Cat, given that s. 19 of the Small Claims Act prohibits this Court from granting the remedy sought. Additionally, I find the claimsin breach of contract, negligence, negligent misrepresentation and the tort of conspiracy are res judicata.

To relitigate the issue of legalfees in this claim based on these alleged causes of action after having litigated the Courtenay Action constitutes as abuse of this Court’sprocess. This latter ground for dismissal does not apply to the claim against the RECBC involving its disciplinary proceeding. [31] For these reasons, as well as the reasons below involving the claims against each of the defendants, I would dismiss this claimentirely. VI. The Application by Mr. Roy to Strike [32] The claim, filed originally on January 16, 2020, alleges that Mr.

Roy and Lucky Cat entered into a firm, unconditional purchaseagreement with the Numbered Company which did not complete. The claim further alleges that as a result of the negligence of Mr. Roy,RE/MAX and the RECBC, Mr. Brown suffered damages, including legal fees. Mr. Roy presumed the claim, as pled, was one fordamages for breach of contract and/or negligence. In this application to strike, he addresses both possibilities. [33] After the claim was filed, the defendants, including Mr. Roy, sought particulars of the alleged negligence.

These are provided tosome degree in the amended claim, filed this December 8, 2020. With respect to Mr. Roy, the amended claim alleges he engaged in thetort of conspiracy and negligent misrepresentation resulting in a loss to the claimant when he drafted a contract essentiallymisrepresenting the purchaser’s ability to pay. [34] As the purchase agreement, attached as Exhibit A to the Affidavit of Mr. Roy, evidences, the parties to the agreement are theseller, the Numbered Company, and the purchaser, Lucky Cat. It is apparent on its face that the agreement was prepared by Mr.

Roy,with RE/MAX listed as the brokerage. There is, in the event, no possibility the agreement can be construed in such a way as to find thatMr. Roy was a party to the purchase offer. There is obviously no merit to the claim that Mr. Roy entered into a contract with theNumbered Company and subsequently committed a breach of the agreement. [35] Mr. Brown, who was, at the material time at least, a licensed managing broker, submitted in court that as far as he understood,Mr. Roy was a party to the purchase agreement.

Although the argument was difficult to follow, it seems to relate to a form filed by Mr.Roy entitled “Disclosure of Interest in Trade”. That form, or disclosure, indicates, as Mr. Roy must by law, that upon the resale of theProperty, he will have acquired an option to purchase a parcel of the land. There is, in my view, no possibility that this disclosed futureinterest in the Property catapults Mr. Roy from agent with an option to purchase to a party to the purchase agreement. [36] Aside from alleging Mr.

Roy is a party to a contractual arrangement gone awry, the claim also contains a bare allegation ofnegligence on the part of Mr. Roy. That bare allegation is, as noted above, fleshed out somewhat in the amended claim filed the daybefore this hearing. Because of the late filing, Mr. Roy came prepared to address the mere allegation of negligence in the originally filed

claim, but also addressed the expanded allegations at the hearing. I find that Mr. Roy’s submissions on the negligence claim, as it wasfirst articulated, warrant consideration as those have bearing not only on the claim against Mr. Roy, but also against RE/MAX. [37] To establish a claim in negligence it must, at a minimum, be shown that the defendant owed the claimant a duty of care. Briefly,once the duty of care is made out, the claimant must go on to establish the standard of care required, a breach of that standard, and thedamages resulting from the breach. In this instance, Mr. Roy relies on Gordon v.

Kreig, 2013 BCSC 842 as authority for the propositionthat the claimants cannot establish he owes them a duty of care in the circumstances. As the agent for the buyer, Mr. Roy submits that toimpose upon him a duty of care to the purchaser would put him in an untenable position. [38] As the Court writes at para 135 of Gordon v. Kreig, the establishment of a duty of care involves a two-stage process (the “Anne’stest”).

First, it must be demonstrated that the harm that occurred was a reasonably foreseeable consequence of the defendant’s act – thedefendant also being in sufficient proximity so as to create a prima facie duty of care. As the Court notes further in Gordon, the lawprovides that even if the first part of the Anne’s test is satisfied, it must still be determined at the second stage whether there are policyreasons outside of the relationship of the parties that negative the duty of care.

That part of the discussion at paras 137 to 139 of the case,set out as follows, has bearing on this claim: 137 The second part of the first stage of the Anns test presents some difficulty for Ms. Gordon. That second

part is: "are there reasons,notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognizedhere?" 138 The facts of this case are that Wolfram Krieg was acting solely as the vendor's agent. Real estate agents who act solely for one sideof a transaction provide a valuable service to their clients. Those valuable services are set out in the Working with a Realtor contracts thatboth Ms. Gordon and the Kriegs made with their respective agents. Among other things, those contracts required the realtor to act solelyin the interests of his client.

To impose a duty of care of the type that Ms. Gordon advocates would vitiate at least that part of the soleagency contracts. It would have the practical effect of imposing dual agency on parties who have specifically contracted for sole agency. 139 Further, to impose a duty of care such as Ms. Gordon proposes would be to place Wolfram Krieg in a position of conflict; he wouldhave to choose between exposure to a claim by his client for impairing his client's interest and exposure to a claim by a purchaser forfailing to compromise that same interest.

Simply put, there are good policy reasons for preserving the relationship that arises when arealtor agrees to act exclusively for a client. In other words, the duty of care that Ms. Gordon advocates would jeopardize thatrelationship by setting up a conflict between the realtor and his client. [39] To paraphrase from the reasons in Gordon at para 138 above, to impose a duty of care on Mr. Roy to the Numbered Company(even assuming proximity) would have the effect of imposing a dual agency on parties who have specifically contracted for sole agency.It would place Mr.

Roy in an impossible situation, having a duty to both his client, the buyer, as well as to the purchaser. In my view,Gordon holds that no such duty exists. For these reasons, I find the claimants’ bare negligence claim against Mr. Roy has no chance ofsuccess at trial. [40] The bare bones of this claim are augmented, as noted, in the amended claim, and Mr. Brown expanded on those further in hissubmissions. As Mr. Brown puts it, his claim is that Mr.

Roy was deeply involved in the sale, allegedly engineering a purchaseagreement by a shell corporation, which agreement provided for a lengthy closing period sufficient to enable the purchaser to eitherobtain financing or sell the property for profit before closing. If, as in this case, the deal collapsed, Mr. Roy would suffer no harm.Alternatively, if the deal succeeded, Mr. Roy would benefit. Either way, Mr. Brown alleges, Mr. Roy knew the purchaser did not havethe financial means to complete the purchase on the date the purchase agreement was signed, but knowingly enabled the deal to proceednonetheless.

In doing so, he misrepresented the fact that the purchaser was able to complete the deal. [41] To the extent the claim looks to the purchase agreement as the source of the misrepresentation, no claim that Mr. Roy made anysuch representation can succeed. Mr. Roy is not a party to the purchase agreement. If there is a representation of the kind alleged, it isone made by the purchaser, Lucky Cat. As Mr. Cordell put it in his submissions on behalf of Mr. Roy, it is inconceivable, absent fraud,that an agent could be held responsible in law for representations of a purchaser in such circumstances. In addition, Mr.

Roy points toparagraph 18 of the purchase agreement which provides there are no representations or warranties outside of the written agreement. Thepurchase agreement itself makes no representation concerning the financial viability of Lucky Cat. There is, I find, no possibility theclaimant can recover damages against Mr. Roy on this ground. [42] This leaves the alleged tort of conspiracy. It is, as Mr. Cordell submits, a bare bones allegation, even given the additionalsubmissions by Mr. Brown in court. In support of the submission to strike the claim even on this ground, Mr. Roy cites Can-DiveServices Ltd. v.

Pacific Coast Energy Corp, (1993), (BC CA), 96 B.C.L.R. (2d) 156 (C.A.), at para 5. There, the courtwrites that to prove conspiracy, the claimants must prove: 1. an agreement between two or more persons; 2. concerted action taken pursuant to the agreement; 3. (

i) if the action is lawful, there must be evidence that the conspirators intended to cause damage to the plaintiff; (ii) if the action is unlawful, there must at least be evidence that the conspirators knew or ought to have known that their action wouldinjure the plaintiff (i.e., constructive intent); 4. actual damage suffered by the plaintiff. [43] I agree with Mr. Cordell that there is nothing, even on the face of the amended claim, that can support this bare allegation ofconspiracy. Certainly the claim does not approach any of the elements required for proof of the tort. Additionally, Mr.

Cordell submitsthat even were some of the elements proven, the conspiracy as alleged does not lead to any damages suffered by the NumberedCompany, let alone Mr. Brown.

[ 44 ] I find I agree that the conspiracy claim lacks any reasonable grounds. On the pleadings and information before the Court, there is no chance the claim will succeed. VII. RE/MAX [ 45 ] As the amended claim clarifies, apart from a general claim of negligence, the claim against RE/MAX is largely that it is vicariously liable for the actions of Mr. Roy. As I have dismissed the claim against Mr. Roy, I would dismiss the claim of vacarious liability against RE/MAX. [ 46 ] With respect to the bare claim of negligence against RE/MAX, I find for the reasons set out above regarding the same claim against Mr.

Roy that this claim cannot succeed. If Mr. Roy owes the claimants no duty of care, one can hardly be owed by RE/MAX. VIII. The Defendants Stellinwerff, Dent and Lees [ 47 ] At paragraph 21 of the purchase agreement, each of the parties have detailed their various agency relationships. Mr. Brown, licensed in relation to Robin Brown and Associates, is listed as being in an agency relationship with the buyer, the Numbered Company. The agreement provides further that the buyer, Lucky Cat, has an agency relationship with Mr. Roy and team “Deborah Stellinwerff, Greg Dent, and Taryn Lees.

Each are in turn licensed in relation to RE/MAX. [ 48 ] Apart from naming Ms. Stellinwerff, Mr. Dent and Ms. Lees as defendants, the claimants provide no particulars. Unlike the defendants Roy and RE/MAX, the claim contains no allegations of negligence against them. The amended claim adds nothing. [ 49 ] Earlier in these reasons, I alluded to Mr. Brown’s submissions in court that he did not know what role these defendants played in the sale, but that he might be inclined to discontinue against them if he had more information. Each of these defendants filed affidavits in support of their application to strike.

Each asserts that their name “was listed as one of the buyer’s agents on the Contract of Purchase and Sale for the Property pursuant to the (RECBC’

s) requirements for members of real estate teams.” [ 50 ] As an experienced realtor and broker, Mr. Brown would have known this even at the time of filing. If he did not, he knew once these affidavits were filed. There was never a basis for naming these defendants in this claim. I would dismiss the claims against these defendants on the grounds they are frivolous and an abuse of this court’s process. IX. The RECBC [ 51 ] In the initial claim, filed January 16, 2020, the claimants simply allege that the RECBC was negligent, causing Mr. Brown to suffer damages, including legal fees.

The claim contains no particulars and no explanation as to why the RECBC would be liable in any way for the collapse of the sale. [ 52 ] Based on the claim as first written, the RECBC provided lengthy submissions concerning the limitations of a duty of care of public authorities. The RECBC relies particularly on Wu v. Vancouver (City), 2019 BCCA 23 as being the most recent authority for the proposition that as a general rule, a public body such as the RECBC owes no private law duty of care to persons who may be affected by the exercise of the public bodies’ statutory authority.

Certainly, as the court writes, statutory duties of public authorities are “insufficient to ground private law duties…” If the claim were for damages for negligence for failing to prevent the sale from collapsing, I would dismiss it on the ground that it is plain and obvious the RECBC owes the claimants no duty of care to oversee the sale. There is nothing about the RECBC’s alleged failure to stop a sale agreement over which it had neither knowledge nor control that gives rise to a private law duty of care. However, the day before this hearing, Mr.

Brown filed his amended claim and the ground shifted as a result. [ 53 ] In the amended claim, the claimants allege firstly that RECBC engaged in bad faith and wilful blindness by ignoring the conduct of Mr. Roy.

This claim is effectively a variation of the earlier bare claim in negligence and I would dismiss it for the reasons set out in the preceding paragraph. [ 54 ] The amended claim also alleges that “RECBC investigator acted in bad faith by dismissing the complaint brought by Complainant despite evidence contrary to her findings and the obvious statement by Lucky Cat ….acknowledging why she submitted such a fraudulent offer draft by (Mr. Roy).” In effect, as Mr. Brown discussed in greater detail in his submissions in court, it is alleged that the RECBC knew that Mr.

Roy knew of the foreclosure - and the conduct of sale order - before Lucky Cat entered into the purchase agreement. Even so, RECBC seems to have accepted Mr. Roy’s statement that he was unaware of the conduct of sale order before Lucky Cat entered into the purchase agreement. [ 55 ] Mr. Brown is convinced of this, while Mr. Cordell offered that there is a difference between knowing of the foreclosure and knowing of the conduct of sale order. In either event, as Ms. Murray for the RECBC submits, what is at issue in this aspect of the amended claim is Mr.

Brown’s dissatisfaction with the RECBC’s decision arising out of his complaint. In essence, this Court is asked to review the wisdom or fairness of the RECBC’s disciplinary process and, if it is found wanting, to award Mr. Brown his legal fees. It is, I agree, a matter wholly outside the jurisdiction of the Small Claims Court. If Mr. Brown has a remedy, it lies in a judicial review proceeding in the Supreme Court. For these reasons I would dismiss the claim against the RECBC. X.

Summary [ 56 ] Based on the foregoing reasons, I have determined that the claim in this matter should be struck pursuant to Rule 16(6)(

o) on various grounds. First, the claimants seek damages in the form of legal fees. This Court is prohibited by s. 19 of the Small Claims Rules from granting that remedy. The fact they are characterized as “damages” is of no moment. Secondly, I find this claim is largely res judicata given the Courtenay Action. It is, in that regard, an abuse of process to relitigate the issue of legal fees arising out of the collapsed sale when the matter was previously before the court.

This applies to all of the claims against all of the defendants, but for the claim involving the RECBC’s disciplinary proceeding. [ 57 ] Dealing with each of the applications to strike on their merit, I find firstly that the claim against Mr. Roy has no chance of

success. I am satisfied that the claimants will not be able to prove a case in negligence, whether it is a simple claim of negligence, or negligent misrepresentation. Additionally, there is no chance the claimants will succeed in their claim of conspiracy. As there is no chance the claimants will succeed in their action against Mr. Roy, there is similarly no chance the claim against RE/MAX will succeed. For these reasons, I would dismiss the claim as against these defendants for these reasons as well. [ 58 ] I find the addition of Ms. Stellingwerff, Mr. Dent and Ms.

Lees to this claim to be most unfortunate and baseless. The claim as against these defendants discloses no triable issue. I would dismiss it also on the ground that it is frivolous and an abuse of this court’s process. [ 59 ] Finally, there is no possible basis on which the claimants can succeed in their claim against the RECBC in this Court. The remedy, if there is one, lies in an application for judicial review in the British Columbia Supreme Court. [ 60 ] For all these reasons, the claim is dismissed entirely against all of the defendants, including the defendant Lucky Cat.

It is, I find, unnecessary in the result for this Court to determine whether Mr. Brown has standing to bring this claim and I decline to do so. [ 61 ] The defendants, with the exception of the defendant Lucky Cat, are entitled to their reasonable fees and disbursements. _______________________________ The Honourable Judge L. J. Mrozinski Provincial Court of British Columbia