Brown v. Howard, 2021 BCPC 34

Citation: Brown v. Howard 2021 BCPC 34 Date: 20210226 File No: 200073 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: ROBIN ANDREW BROWN and ROB BROWN AND ACCOCIATES CORP. CLAIMANTS AND: DAN HOWARD and REAL ESTATE COUNCIL OF BC DEFENDANTS RULING ON APPLICATION OF THE HONOURABLE JUDGE L. MROZINSKI Appearing on their own behalf: R. Brown Counsel for the Defendants: A. Murray, Q.C. Place of Hearing: Victoria , B.C. Date of Hearing: February 1, 2021

Date of Judgment: February 26, 2021 I. Introduction [ 1 ] In December 2018, Robin Brown, then a licensed realtor, was the subject of an investigation by the defendant, Real Estate Council of British Columbia (the “RECBC”). Following the investigation, the RECBC issued an Order (the “Order”) dated March 13, 2019, under which it suspended Mr. Brown’s personal real estate license and the license of Rob Brown & Associates Corp. The Order, made on an urgent basis, also prohibited both Mr.

Brown and Rob Brown & Associates from providing real estate services to any member of the public. [ 2 ] The investigator, and a co-defendant in this small claims action, Dan Howard, is a compliance officer with the RECBC. Mr. Howard was responsible for conducting the investigation involving Mr. Brown and his real estate brokerage firm in or about 2018. In the course of that investigation, Mr. Howard spoke with Mr. Michael Drouillard, counsel for the property manager of a property leased by Mr. Brown; the property lease forming a part of the subject of one of three complaints against Mr. Brown. Mr.

Howard does not deny that during his conversation with Mr. Drouillard, he mentioned he was investigating complaints against Mr. Brown. In a follow-up email from Mr. Howard to Mr. Drouillard, three separate file numbers are referenced in the subject line at the top of the email. Apart from these references, Mr. Howard denies disclosing any additional information regarding two of the three complaints unrelated to the lease. [ 3 ] By email dated October 25, 2018, Mr. Brown raised the disclosure in an email to Mr. Howard. Mr. Brown writes he was told by Mr. Drouillard that Mr.

Howard disclosed to him not only the complaint related to the lease, but also that Mr. Howard was investigating two other unrelated complaints. Mr. Brown asked for an explanation. He added that he had an affidavit from Mr. Drouillard. In a reply email dated October 26, 2018, Mr. Howard confirmed with Mr. Brown that he had spoken with Mr. Drouillard on the matter of his lease. He asked for a copy of Mr. Drouillard’s affidavit. [ 4 ] Mr.

Brown filed a complaint with the Office of the Information & Privacy Commissioner (the “OIPC”) that the RECBC had inappropriately disclosed his personal information in contravention of the Freedom of Information and Protection of Privacy Act , RSBC 1996, c. 165 (“ FIPA ”). The complaint relates to the disclosure of the three file numbers as well as Mr. Howard’s comment to Mr. Drouillard that he was investigating complaints against Mr. Brown. [ 5 ] The OIPC investigated the complaint, and, in a report to Mr. Brown, advised that it was partially substantiated. The OIPC was satisfied that Mr.

Howard was not authorized to disclose to Mr. Drouillard any information related to any of the complaints but for the complaint involving the lease. OIPC then advised Mr. Brown that it was closing its file. [ 6 ] In this small claims action, Mr. Brown seeks punitive damages in the amount of $10,000, as well as damages for pain and suffering in the amount of $25,000 from the RECBC and Mr. Howard arising out of the disclosure to Mr. Drouillard. The RECBC and Mr. Howard seek an order striking the claim on several grounds, including that it discloses no cause of action, and that the RECBC and Mr.

Howard cannot be held liable for anything done or omitted to be done in the performance of their duty or in the exercise of an power, except in relation to anything done or omitted to be done in bad faith. Additional objections include that the claim constitutes a collateral attack on the Order and a subsequent order of the British Columbia Supreme Court (“BCSC”) on judicial review, as well as an abuse of process given the sheer number of claims brought by Mr. Brown tangentially related to the Order. [ 7 ] In turn, Mr.

Brown seeks to amend his claim to allege both bad faith, and misfeasance of public office against Mr. Howard. He seeks to hold the RECBC vicariously liable for the conduct of its compliance officer, Mr. Howard. The defendants, RECBC and Mr. Howard, oppose the amendments. Alternatively, it is submitted they are of no value in that they do nothing to bolster the merit of the claim in any event. II. The Issues [ 8 ] The main issue in this application to strike involves the question whether the claim in this case discloses a triable issue or whether the matter is capable of

summary determination at this juncture. That, in turn, requires some consideration of the role of the court on an application such as this and the purpose of the rules allowing for a

summary dismissal in this court. [ 9 ] Other issues include whether this claim constitutes an abuse of process and/or an impermissible collateral attack on other orders. III. The Court’s Authority to Summarily Dismiss a Claim [ 10 ] This is an application to dismiss brought on an interlocutory basis, before trial, and outside of a settlement conference.

Rule 7(14) of the Small Claims Rules , authorizes a settlement judge to dismiss a claim, counterclaim, reply or third party notice if, after discussion with the parties and reviewing the filed documents, a judge determines that the claim lacks reasonable grounds, discloses no triable issue, or is frivolous or an abuse of the court’s process. It is accepted that Rule 16(6)(

o) authorizes the court to dismiss a claim outside of a settlement conference on the same grounds. Authorities include: Klos v. Fraser Valley Christian Soccer Association , 2020 BCPC 199 (“ Klos ”) , Treminio v. Aveda Institute, 2017 BCPC 348 (“ Treminio ”) , citing other authorities, including Judge Stansfield in Belanger v. AT & T Canada Inc ., [1994] B.C.J. No. 2792 . [ 11 ] The purpose of the Small Claims Rules that enable this court to dismiss a claim summarily are discussed in numerous cases.

In Klos , Judge Skilnick puts it this way at para 8: At a settlement conference, the judge acts as a "gatekeeper" whose function it is to determine which claims do and do not merit the assignment of the valuable resource of court time. The provision of one's "day in court" is not an absolute right. This is especially so at this time when court resources have become limited because of the current pandemic, but even absent in today's special circumstances, this principle has always applied.

The child who is in foster care awaiting a trial to determine his or her future should not be delayed because of civil litigants wishing to use court time as a soapbox to complain of hurt feelings while asserting a claim with no chance of success. Nor should taxpayers have to foot the bill for such. A small claims court judge has the ability to deny litigants their day in court

if the outcome of the litigation can be decided at an earlier stage. A judge has the obligation to close the gate on litigation that is without merit in order to optimize the limited resources of the court. [ 12 ] At para 14 of Klos , Judge Skilnick references a list of common situations in which cases have been dismissed before trial. The list includes where a claim is statute barred, where this court lacks jurisdiction over the subject matter, and unsupported claims for professional negligence. The claimants and applicants herein submit this claim ought to be dismissed on all these grounds. IV.

The Claim Involving the Breach of Mr. Brown’s Privacy [ 13 ] In his notice of claim, Mr. Brown asserts that Mr. Howard acted in bad faith and deceit, and committed professional negligence by violating provincial enactments causing him to suffer emotionally and psychologically. It is further alleged that Mr. Howard was in a power of authority and abused Mr. Brown and the system. Mr. Brown alleges the RECBC is vicariously liable for these actions of Mr. Howard. [ 14 ] In correspondence, subsequent to being served with the claim, the defendants sought particulars of Mr.

Brown’s claim, particularly regarding the claim of professional negligence. Mr. Brown has provided particulars of a sort in an application for, among other things, leave to amend his claim. In

Schedule A to the application, Mr. Brown seeks to amend his claim to add bad faith to the allegations against the defendants as well as the tort of misfeasance of public office. [ 15 ] With respect to allegations of bad faith, which appear in the filed claim in any event, Mr. Brown alleges that Mr. Howard violated s. 122 of the Real Estate Services Act , SBC 2004, c. 42 (the “ RESA ”) and deceived him and the OIPC by being inconsistent in his submissions to the OIPC regarding Mr. Brown’s complaint compared to his sworn affidavit evidence in this proceeding. Mr. Brown further alleges that Mr.

Howard “abused his power by engaging in illegal activity while claiming to act under s. 37 of the RESA .” [ 16 ] As the material filed by the parties evidences, in response to Mr. Brown’s complaint, both Mr. Howard and the RECBC submitted to the OIPC that Mr. Howard had authority to discuss each of the complaints it was investigating in regard to Mr. Brown with Mr. Drouillard. The OIPC disagreed; it found that Mr. Brown had authority to discuss only one complaint with Mr. Drouillard: the complaint involving the lease. Mr.

Brown’s allegation of “abuse of power” in this proceeding is based on the OIPC’s finding that Mr. Howard was not authorized under the RESA to disclose to Mr. Drouillard that the RECBC was investigating Mr. Brown for more than one complaint. [ 17 ] As for the allegation of bad faith as amplified in Mr. Brown’s proposed amendments, Mr. Brown points to the sworn affidavit testimony of Mr. Howard in this proceeding explaining that the three complaints referenced in his email correspondence to Mr.

Drouillard are a function of the RECBC’s file management database which requires a file number in the subject line in order to save communication to the correct file. Mr. Brown notes this explanation was not proffered before the OIPC. He submits the difference between the submissions before the OIPC and this affidavit constitute deception and amount to bad faith. [ 18 ] The question is whether Mr. Brown’s pleadings, including his proposed amendments, raise any cause of action against Mr. Howard and the RECBC. [ 19 ] As a general matter, Mr.

Brown is immune from liability pursuant to s. 128 of the RESA for anything done in the performance of any duty under the Act , or the exercise of any power. The immunity does not apply in relation to anything done in bad faith. Does the difference in submissions made by Mr. Howard and the RECBC before the OIPC and Mr. Howard’s affidavit in this case serve to deprive Mr. Howard of the immunity under s. 128 of the RESA ? I do not see how it could. Mr. Howard’s submission that he was authorized to disclose to Mr. Drouillard that the RECBC was investigating complaints against Mr. Brown was not accepted by the OIPC.

It could hardly form the basis of a defence to Mr. Brown’s claim in this court; the fact it is not referenced by either Mr. Howard or the RECBC in reply to this claim is unsurprising. Instead, in this application the defendants have offered another explanation as to why the file numbers at least were disclosed to Mr. Drouillard. The explanation is not inconsistent with the submissions before the OIPC; it is simply different. [ 20 ] In any event, even assuming that the differences amount to bad faith on the part of Mr. Howard, it does nothing to advance Mr. Brown’s claim in this court. If Mr.

Howard acted in bad faith in disclosing personal information regarding Mr. Brown, and is thus not immune under the RESA for that act, the claim against him must be one for breach of privacy. In Cook v. The Insurance Corporation of British Columbia , 2014 BCSC 1289 , at paras 70 to 73 , Justice Steeves accepts firstly that there is no common tort of invasion of privacy. Secondly, the Court in Cook holds that complaints related to such breaches or invasions of privacy must proceed under FIPA . [ 21 ] In Mohl v.

University of British Columbia , 2009 BCCA 249 , it is also noted at para 13 that there is no common law claim for breach of privacy. Instead, to the extent there is a tort relating to an invasion of privacy, it is found in s. 1 of the Privacy Act , RSBC 1996, c. 373 . Mr. Brown gives no indication he is proceeding under this Act , but regardless, s. 4 of the Act provides such an action must be heard and determined by the BCSC. [ 22 ] This is all to say that even if this court assumes, for the sake of argument, that Mr. Howard acted in bad faith when he disclosed information to Mr.

Drouillard, this court has no jurisdiction to hear Mr. Brown’s claim for damages which he alleges flow from the disclosure. If Mr. Brown has a remedy for this alleged unlawful act, it is not in this court. [ 23 ] While Mr. Brown initially claimed Mr. Howard was professionally negligent in carrying out his investigation, his proposed amendments allege the intentional tort of misfeasance of public office. Mr. Brown relies on the elements of the tort as set out in Odhavji Estate v. Woodhouse , 2003 SCC 69 , at para 23 which provides in part that: In my view, there are two such elements.

First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. “…” [ 24 ] The OPIC did not agree with the submissions of Mr. Howard and the RECBC that Mr. Howard was acting within his statutory

authority when he disclosed information to Mr. Drouillard, but that in no way amounts to a finding that Mr. Howard knowingly engaged in deliberate and unlawful conduct that was likely to harm Mr. Brown. I see nothing in the filed materials, the claim or the proposed amendments that would in any way support this allegation. Mr. Brown cannot simply allege misfeasance of public office; there must be some allegation that would support such a claim.

Viewing the materials filed, which constitutes the whole of the communication on the matter, I do not see how a claim for misfeasance of public office leading to the disclosure of personal information relating to Mr. Brown on the part of Mr. Howard could succeed at trial. [ 25 ] While the applicants herein focused their submissions on Mr. Brown’s allegations of breach of privacy arising out of Mr. Howards investigation of the complaints against him, Mr. Brown submits his claim has nothing to do with a breach of his privacy. Rather, Mr. Brown asks this Court to focus on Mr.

Howard’s October 26, 2018, reply to his email the day prior when he asked Mr. Howard, “outright if he revealed any information to his landlord.” [ 26 ] In written submissions, Mr. Brown writes “the Defendant (Mr. Howard) was deceitful and advised the Claimant that he had spoken to Mr. Drouillard about the lease only and that he welcomed any information that I may have contained (sic) about the subject.” In fairness, the email sent by Mr. Howard on October 26, 2018, replying to Mr. Brown does not say what is alleged above. Rather, it reads as follows: “Thank you for your email. I can confirm I did speak with Mr.

Drouillard on the matter of your lease. I would point out that my inquiries were made pursuant to s. 37(1) of the Real Estate Services Act . As for your suggestion that you possess an affidavit from Mr. Drouillard attesting to these discussions, I look forward to receiving a copy of same at your earliest opportunity.” [ 27 ] The email does go on to advise Mr. Brown that the investigation will continue but the remainder is not relevant to this issue. [ 28 ] It is the case, as Mr. Brown points out, that he was asking Mr. Howard about the disclosure of two other unrelated complaints to Mr. Drouillard. Mr.

Howard’s reply carefully avoids reference to those other files and it is, in that regard, not a fulsome response to Mr. Brown’s earlier email. Still, I find I agree with Ms. Murray that while Mr. Howard’s reply is not a fulsome response to Mr. Brown’s question, neither is it a lie. It is a carefully crafted response; particularly careful in light of Mr. Brown’s statement that he possessed an affidavit by Mr. Drouillard. [ 29 ] Still, as with Mr. Brown’s other allegations, it must be determined whether these allegations give rise to a cause of action such that the matter ought to proceed to trial.

Again, I find I agree with Ms. Murray; there is no tort of lying, as it was put. That appears to be the nub of Mr. Brown’s claim in this regard - that Mr. Howard was deceitful in response to his email query. Such an allegation does not found a cause of action known to law. [ 30 ] If, by this allegation, Mr. Brown suggests an inference could be drawn back to Mr. Howard’s disclosure as being in bad faith or for an improper purpose, the result is simply to deprive Mr. Howard of his statutory immunity for the act of disclosing Mr. Brown’s personal information.

That, in turn, leads right back to a claim for damages for breach of privacy. It is a claim over which the court has no jurisdiction. V. Abuse of Process/Collateral Attack [ 31 ] The defendants raise other objections to this claim, including that it constitutes an abuse of this court’s process and/or a collateral attack on orders made by the OIPC and the BCSC. [ 32 ] The abuse objection flows from the sheer number of claims filed by Mr. Brown in this court, and now also in the BCSC, against the RECBC.

For the most part the claims relate to a real estate transaction that did not conclude, though at least one claim relates to the Order itself, and of course this claim tangentially relates to the Order. While I accept the RECBC is the subject of numerous claims by Mr. Brown, this claim is quite specific and somewhat unique among those that I have adjudicated upon or that are in these file materials. I would not at this point dismiss this claim on the grounds of abuse of process. [ 33 ] The defendants cite Khan v.

Law Society of Ontario , 2020 ONCA 320 (“ Khan ”) as authority for the proposition that a claim for damages arising out of a discipline proceeding brought against a professional by the governing body is an abuse of process. In my view Khan is distinguishable . To the extent the lower court’s decision to strike the claim against the Law Society Tribunal and other defendants was upheld, it was based on Mr. Khan’s active appeal of the disciplinary decision. There is no appeal in this case against the Order, or the decision on judicial review in which the court declined to set aside the Order.

Perhaps there ought to be, but the lack of appeal does not render this particular claim largely against Mr. Howard an abuse of process. This claim is not about the Order or any disciplinary measure against Mr. Brown: it is concerned with the disclosure of Mr. Brown’s personal information and Mr. Howard’s communications with Mr. Brown on that subject. In my view, this distinction also undermines the submission that this claim constitutes a collateral attack on the Order or the order of Justice Young. I would not dismiss Mr. Brown’s claim on these grounds. VI. Conclusion [ 34 ] I have found that Mr.

Brown’s pleadings, including his proposed amendments, do not give rise to a cause of action over which this court has any jurisdiction or one that has any prospect of success at trial. For these reasons I would dismiss the claim. The application to amend is denied. _____________________________ The Honourable Judge L. Mrozinski

Provincial Court of British Columbia