Meyer v. DiMambro Date:, 2013 BCPC 95

Citation: Meyer v. DiMambro Date: 20130501 2013 BCPC 0095 File No: 21057 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: RONALD MEYER CLAIMANT AND: NICK DIMAMBRO DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: Ronald Meyer Appearing in person: Nick DiMambro Place of Hearing: Abbotsford , B.C. Date of Hearing: April 16, 2013 Date of Judgment: May 1, 2013

Introduction [1] The Claimant Ronald Meyer has brought a claim against the Defendant Nick DiMambro seeking judgement in the sum of$7,223.00 for reimbursement for materials used in renovations to a home belonging to the Defendant. The renovations were neverrequested by the Defendant and the Claimant clearly has no claim in contract. The Claimant performed the renovations believing that hewas going to be buying the property.

He did not complete the purchase and the Claimant resided on the property as a tenant when therenovations were performed. [2] The Defendant denies any responsibility for the cost of the renovations, which he says were performed without his approval. Inaddition, he raises a preliminary objection concerning the jurisdiction of this court to hear this Claim. He states that this is a disputebetween a landlord and a tenant, something that this court does not have jurisdiction to decide. He asks for an order under Rule 7(14)dismissing the Claim.

Applicable Law [3] One of the functions of a Settlement Conference in proceedings under the Small Claims Act is to perform a cursory test of themerits of a claim. As has often been said, the Settlement Conference Judge is essentially a gatekeeper whose task it is to keep out thoseclaims which have no merit, those which are unsupported by any evidence (without actually weighing the existing evidence) and thosewhose outcome can be easily determined without a significant expenditure of the court’s time and resources, such as on a point of law.

The dismissal of a claim at a Settlement Conference is a remedy that should be used with caution and only in clear cases. See ArtisanFloor Co. v. Lam (BCSC), (1993) 76 B.C.L.R. (2d) 384 (BCSC); Eco-Tourism 2010 Society v. Vancouver 2010 BidCorporation and the Queen 2005 BCPC 23 , 2005 BCPC 23; Cecil v. Holt-Renfrew 2001 BCPC 54 , [2001] BCJ No.798; 2001 BCPC 54; Pugsley v. Harrison 2007 BCPC 370 , 2007 BCPC 370; E. M. Plastics & Electrical Products Ltd. v. AbbySigns Ltd. 2009 BCPC 18 , 2009 BCPC 18; Poy v. Dr.

Edward Coates Inc. 2009 BCPC 388 , 2009 BCPC 388; Polak v.Bank of Montreal 2013 BCPC 3 , 2013 BCPC 003, [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.” [5] The Defendant argues that the Claim in this case is not one which this court can hear because of

section 58 of the ResidentialTenancy Act directs that this type of dispute falls within the jurisdiction of the Dispute Resolution Services of the Residential TenancyBranch.

Section 58 reads as follows: 58

(1) Except as restricted under this Act, a person may make an application to the director for dispute resolution in relation to a disputewith the person's landlord or tenant in respect of any of the following: (

a) rights, obligations and prohibitions under this Act; (

b) rights and obligations under the terms of a tenancy agreement that (

i) are required or prohibited under this Act, or (ii) relate to (

A) the tenant's use, occupation or maintenance of the rental unit, or (

B) the use of common areas or services or facilities.

(2) Except as provided in subsection (4), if the director receives an application under subsection (1), the director must determine thedispute unless (

a) the claim is for an amount that is more than the monetary limit for claims under the Small Claims Act,

(

b) the application was not made within the applicable period specified under this Act, or (

c) the dispute is linked substantially to a matter that is before the Supreme Court.

(3) Except as provided in subsection (4), a court does not have and must not exercise any jurisdiction in respect of a matter that must be submitted for determination by the director under this Act . (Emphasis added).

(4) The Supreme Court may (

a) on application, hear a dispute referred to in subsection (2) (

a) or (c), and (

b) on hearing the dispute, make any order that the director may make under this Act.

(5) The Arbitration Act does not apply to a dispute resolution proceeding. (Emphasis added). Analysis [ 6 ] The Claimant began an action in the Supreme Court of British Columbia for the same relief that he is seeking in this Claim. That action was commenced on June 29, 2012. The merits of that claim were never adjudicated because the Claimant discontinued those proceedings.

On July 24, 2012 the Claimant began this action and also applied for Dispute Resolution under the Residential Tenancy Act the same day. [ 7 ] A hearing under the Residential Tenancy Act was conducted by conference call on October 10, 2012 and on October 12, 2012 the Dispute Resolution Officer rendered a written decision. The issues decided were: 1. Is the tenant entitled to a monetary order for return of his security deposit and to recover a filing fee? 2.

Is the landlord entitled to a monetary order and to recover a filing fee? [ 8 ] At the hearing before the Dispute Resolution Officer, it was the Defendant who raised this issue as his damages. The written decision states at page 3: “As to the balance of his monetary claim, the landlord stated that the amount of $7233 was the amount for which the tenant claimed in his application to the Supreme Court of British Columbia for work performed.

The landlord confirmed that he could not produce a receipt or any evidence that he has suffered a loss in this amount.” [ 9 ] The Dispute Resolution Officer declined to find jurisdiction to resolve the dispute about the issue of the Claimant’s claim for the cost of renovations he made to the Defendant’s house, stating “The parties are at liberty to continue seeking the appropriate legal remedy to this dispute already filed in the Supreme Court and the Provincial Court of British Columbia.” The decision rendered dismissed the Claimant’s application for return of his security deposit and the Defendant’s claim for unpaid rent. [ 10 ] The Defendant states that this court is prohibited from hearing this claim by virtue of the Residential Tenancy Act.

He takes the position that when the issue of the claim for renovations was put before the Director under that Act, it fell under the category of rights and obligations under a tenancy agreement that related to the tenant’s use of the premises (one of the categories under subsection 58(1) (b).) Since the dispute has been submitted to the Director, subsection (3) directs that this court must not hear the dispute. He says that the Claimant’s only remedy is under subsection (4), i.e. he must recommence his action in Supreme Court. [ 11 ] This action is complicated by the following circumstances: 1.

Section 58(3) of the Residential Tenancy Act directs that a court must not exercise jurisdiction on a matter that must be submitted to the director under the Act, except if the Supreme Court has jurisdiction under subsection (4). 2. According to subsection (2), the Director (appointed under

section 8 of the Act) must determine disputes under subsection (1) including disputes about a tenant’s rights and obligations relating to the tenant’s occupation of the rental property. 3. The Claimant seeks judgement on an issue concerning his rights arising out of his occupation of the rental property. Specifically, he seeks an order concerning his right to compensation for reimbursement for renovations to rental property performed while he was a tenant. 4. Section 58(3) says that such a dispute must be determined by the Director, unless the Director finds that the matter is before the Supreme Court. 5.

When the Claimant brought this claim before the Director, the Director declined to accept jurisdiction over the matter because the claim was before the Supreme Court. 6. After the Director made his order, the Claimant discontinued his Supreme Court action. [ 12 ] The Claimant believed that it was smarter for him to discontinue his action in Supreme Court and proceed in this court. The problem with this is that the Residential Tenancy Act does not give the Small Claims Court jurisdiction to hear a claim of this nature.

Section 85.1 of the Residential Tenancy Act gives the Director the exclusive jurisdiction to hear a claim like this one. That

section reads as follows: 84.1

(1) The director has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined in a dispute resolution proceeding or in a review under Division 2 of this Part and to make any order permitted to be made.

(2) A decision or order of the director on a matter in respect of which the director has exclusive jurisdiction is final and conclusive and is not open to question or review in any court. [ 13 ] Under

section 85, this court can enforce orders under the Residential Tenancy Act , but it can not decide issues under the Act. Apart from the jurisdiction to enforce orders of the Director as set out in

section 85, this court has no jurisdiction to decide a claim that may be brought under the Residential Tenancy Act . Authority for this principle can be found in the following decisions of this court: Harron Enterprises Inc. v. Von Pfahlenburg 2004 BCPC 264 ; Standfield v. Sebal 2004 BCPC 418 ; and Kasay v. Royal Drake Investments Ltd. 2005 BCPC 368 . [ 14 ] It is clear therefore that this court does not have jurisdiction to hear this claim and that trial time should not be set aside for a claim like this that has no chance of success. Therefore this Claim is dismissed pursuant to Rule 7(14)(

i) of the Small Claims Rules. [ 15 ] In terms of where this leaves the Claimant, it will be up to him to decide whether or not to seek legal advice about whether or not he can recommence his claim in Supreme Court or if he can reapply to the Director for determination of the issue now that the Supreme Court action has been discontinued. No suggestion or direction is offered in this regard because it would not be binding on anyone and therefore would be of no use to the Claimant.

The Claimant would likely benefit from legal advice in this regard, both as to whether he can proceed with this claim in another forum, and as to whether he is able to prove any unjust enrichment. Order [ 16 ] For the foregoing reasons, the Claimant’s claim is dismissed pursuant to Rule 7(14)(

i) of the Small Claims Rules. Dated at the City of Abbotsford, in the Province of British Columbia this 1 st day of May, 2013. ________________________________ (The Honourable Judge K. D. Skilnick)