Polak v. Bank of Montreal Date:, 2013 BCPC 3

Citation: Polak v. Bank of Montreal Date: 20130117 2013 BCPC 0003 File No: 20185 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ALOIS POLAK CLAIMANT AND: BANK OF MONTREAL DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Claimant: E. Heringa (Amicus Curae) Counsel for the Defendant: T. Kruger Place of Hearing: Abbotsford , B.C.

Date of Hearing: December 12, 2012 Date of Judgment: January 17, 2013 Introduction [1] The Claimant Alois Polak has commenced an action in this court against the Defendant Bank of Montreal. In essence, theclaim alleges that the Bank has committed a civil wrong because it failed to reverse a transaction on the Claimant’s credit card which theClaimant admits to have authorized. The request to reverse the transaction was made by telephone almost two months after the initialtransaction. Attempts were made to resolve the issue, but the Defendant concluded that it was unable to do so.

The Claimant has not suedthe other party to the initial transaction, but has instead sought recourse against the Defendant for failing to reverse the initial transaction. [2] A settlement conference was held in this matter on December 12, 2012, at which time the Defendant applied under Rule 7(14)of the Small Claims Rules for a dismissal of the claim. Decision was reserved at that time. Following are my reasons for an orderdismissing the claim, and clarifying another order made at the settlement conference.

Applicable Law [3] One of the functions of a Settlement Conference in Small Claims proceedings is as a cursory test of the merits of a claim. Ashas often been said, the Settlement Conference Judge is essentially a gatekeeper whose task it is to keep out those claims which have nomerit, those which are unsupported by any evidence (without weighing the existing evidence) and those whose outcome can be easilydetermined without a significant expenditure of the court’s time and resources, such as on a point of law.

The dismissal of a claim at aSettlement Conference is a remedy that should be used with caution and only in clear cases. See Artisan Floor Co. v. Lam (1993) (BC SC), 76 B.C.L.R. (2d) 384 (BCSC); Eco-Tourism 2010 Society v. Vancouver 2010 Bid Corporation and the Queen2005 BCPC 23; Cecil v. Holt-Renfrew 2001 BCPC 54 , [2001] BCJ No. 798; 2001 BCPC 54; Pugsley v. Harrison 2007 BCPC370; E. M. Plastics & Electrical Products Ltd. v. Abby Signs Ltd. 2009 BCPC 18; Poy v. Dr. Edward Coates Inc. 2009 BCPC 388. [4] Rule 7(14) of the Small Claims Rules provides in part as follows: “

(14) At a settlement conference, a judge may do one or more of the following:… (

b) decide on any issues that do not require evidence;... (

d) set a trial date, if a trial is necessary;... (

i) dismiss a claim, counterclaim, reply or third party notice if, after discussion with the parties and reviewing the filed documents, ajudge determines that it (

i) is without reasonable grounds, (ii) discloses no triable issue, or (iii) is frivolous or an abuse of the court's process; (

l) make any other order for the just, speedy and inexpensive resolution of the claim.” Analysis [5] The Claimant admits in his claim, and at the Settlement Conference, that he authorized his Bank of Montreal (BMO)MasterCard to be debited for $8,068 as a deposit for certified engineering drawings from a company called Future Sales Corporation.This company has its head office in Ontario, but advertises its services and products in this province. This transaction took place onDecember 22, 2009.

The drawings the Claimant received were incorrect, as they did not meet his requirements which were toaccommodate a motor home on a cement pad with a mechanic’s pit. The drawings her received were for a semi-circular building whichdid not meet his needs. [6] The Claimant and representatives of the Defendant had contact beginning February 15, 2010, but the issue was unresolved. OnNovember 9, 2010 the Defendant wrote to the Claimant requesting supporting documentation for his claim, which was to be providedwithin 15 business days. The Claimant complied with this request, sending his response on the same day.

Upon receipt of the forms, theDefendant concluded that it was unable to resolve the matter. The Claimant commenced this action against the Defendant on February18, 2011. [7] At the settlement conference, the Claimant was unable to show where, in his contract with the Defendant (the “BMOMasterCard Cardholder Agreement) the Defendant was obliged to reverse transactions, especially where the request for request forreversal is made almost two months after the fact. The Defendant was able to show a contrary provision in this agreement.

Section 16 ofthat agreement provides as follows: “We [BMO] are not responsible for any problem you [the Claimant] have with a merchant or if a merchant does not accept your card orcheques. Even if you have a problem with a merchant, you are still responsible for the total debt. You must settle any problems you havedirectly with the merchant.” (Emphasis added)

[ 8 ] On behalf of the Claimant, Mr. Heringa reiterated the nature of the Claimant’s dispute with Future Sales Corporation. He argues that the Claimant complied with what was requested of him in the Defendant’s letter of November 9, 2010 and that the Claimant did not receive any written response from the Defendant. He argues that it is the Defendant’s failure to provide a written response to the Claimant’s information which attracts liability.

With respect, I am unable to agree that this makes the Defendant responsible for the amount of the claim. [ 9 ] It appears at best that under the contract the Defendant has offered to provide a type of mediation services where there is a dispute between the cardholder and the other party to a transaction. No provision of the agreement has been shown which will rest liability on the Defendant for a dispute between parties, or for its failure or refusal to reverse a transaction where a request is made almost two months after the fact.

Such a policy would unfairly place a duty on the Defendant to fight its cardholder’s battles at its own expense or by passing that expense on to all of its customers. [ 10 ] I am satisfied that this claim is without reasonable grounds and that it discloses no cause of action against the Defendant and the claim is therefore dismissed pursuant to Rule 7(14)(

i) of the Small Claims Rules. Addition of Future Sales Corporation as a Party [ 11 ] At the settlement conference held in this action on December 12, 2012, an order was made adding Future Sales Corporation as a third party. On reflection, this was not the appropriate order to be made, as it would place responsibility for bringing Future Sales Corporation into this action on the Defendant.

Future Sales Corporation has not yet been added as a party and this is likely because each of the parties left the settlement conference believing that it was the other party’s responsibility to do so. [ 12 ] Since the dealings giving rise to this matter were had directly with the Claimant, he is the party that should be adding Future Sales Corporation to this action. I will permit the Claimant a period of 30 days to may amend his claim, adding Future Sales Corporation as a Defendant to this action. Order [ 13 ] For the foregoing reasons it is ordered as follows: (

a) The Claim brought in this action against the Defendant Bank of Montreal is dismissed pursuant to Rule 7(14)(

i) of the Small Claims Rules. The Defendant is entitled to its costs from the Claimant for the filing of its reply, in the sum of $50. (

b) The Claimant shall have until Monday February 18, 2013 at 4:00 p.m. to amend his Claim by adding Future Sales Corporation, carrying on business as Future Steel Buildings, as a party to this action. Thereafter he shall be required to serve the amended Notice of Claim on Future Sales Corporation in compliance with the Small Claims Rules. If the Claimant elects not to file an Amended Claim in accordance with this paragraph, this action shall be concluded. Dated at the City of Abbotsford in the Province of British Columbia this 17 th day of January, 2013. ________________________________________ (The Honourable Judge K. D. Skilnick)