Sawatzky v. City of Abbotsford, 2019 BCPC 255

Citation: Sawatzky v. City of Abbotsford 2019 BCPC 255 Date: 20191028 File No: 23737 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: EDWARD SAWATZKY CLAIMANT AND: CITY OF ABBOTSFORD DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE K.D. SKILNICK Appearing in person: E. Sawatzky Counsel for the Defendant: A.B. Nguyen and A. Alani Place of Hearing: Abbotsford , B.C. Date of Hearing: October 18, 2019

Date of Judgment: October 28, 2019 Introduction [1] The Claimant, Edward Sawatzky, has sued the Defendant, the City of Abbotsford, for damages. His Amended Notice of Claimalleges that the Defendant entered onto his property and seized truckloads of his property. It was originally claimed that this was done“Illegally” and in violation of the Claimant’s rights, but this portion of the claim was deleted when the Claimant amended his claim.

TheAmended Claim seeks damages for loss of equipment and materials in the sum of $3,000 and for pain and suffering and other associatedclaims, in the amount of $35,000. [2] In its Amended Reply, the Defendant admits that its employees entered onto the Claimant’s property and removed certainproperty, but says that this was done as part of the valid exercise of its powers under Municipal Bylaw 1256-2003, known as the “GoodNeighbour Bylaw”.

The Defendant adds that if the Claimant wants to challenge the propriety of its actions, this must be done in theSupreme Court of British Columbia under the Judicial Review Procedure Act. [3] The Defendant now applies for an order dismissing the Claim pursuant to Rule 7 (14) (

i) of the Small Claims Rules on thegrounds that it discloses no triable issue and is an abuse of the process of this Court. The Claimant opposes the application and wants tohave his claim decided on its merits at trial. He argues that the motion brought by the Defendant will result in a denial of his access tojustice because he is unable to afford the cost of proceeding in the Supreme Court. Following is a

summary of the applicable law on an application of this nature, a

summary of the position of the parties, and the reasonsfor making the order that is being made in response to this application. Applicable Law [4] There is a mistaken assumption that everyone gets their day in court simply by demanding it. It is correct that those who bringa triable issue to the court have the right to have their issue adjudicated, unless the law provides otherwise. This is something that shouldbe interfered with reluctantly and only for good reason.

Access to adjudication of valid disputes by the appropriate court is essential tothe rule of law and the maintenance of a just and peaceful society. [5] Having said this, court time should not be used as a soapbox for those with an axe to grind, or as some sort of therapy for thosewho simply wish to vent against a party they are adverse to. Court time is too valuable, and there is a long line-up of those with importantissues waiting for their turn in the cue.

These include children in Foster care waiting to have their status determined, and those personscharged with offences wanting to exercise their right to be tried within a reasonable time, as promised by

section 11 (

b) of the CanadianCharter of Rights and Freedoms. There is also the issue of the cost to the taxpayers of operating a courtroom that makes it unreasonablefor courts to set aside trial time for frivolous or vexatious causes or for cases with no reasonable prospect of success. [6] It is the balancing of these competing interests that requires a Judge of this Court to serve as a gatekeeper to determine whichclaims go to trial and which don’t. To address this issue, Small Claims Rule 7(14) (

i) exists, giving the Judge the ability to dismiss aclaim if that claim is: (

a) without reasonable grounds, (

b) discloses no triable issue, (

c) is frivolous, or (

d) is an abuse of the court’sprocess. [7] Rule 7 provides that this takes place at a settlement conference. Many judges are reluctant to do this at a settlement conferencebecause insufficient time is set for these conferences to properly address this issue. Because of this, a party can elect to have this issuedetermined outside of the settlement conference. This procedure is authorized by Small Claims Rule 16 (6) (

o) which allows a party toapply for “any other order that a Judge has the power to make”. This includes the power to dismiss a claim before trial. [8] While it is not possible for an exhaustive list to be made of when rule 7(14) may be used to prevent a claim from gettingthrough the gate to trial, case law has determined some of the more common situations when the gate to trial is closed. This includes: 1. Where a claim is statute barred or precluded by a limitation period or because of a failure to give proper notice (e.g. WawanesaMutual Insurance Company et. al. v.

Rona Inc. and Fluidmaster Inc. 2008 BCPC 196; Cecil v. Holt Renfrew and Weston 2001 BCPC 54, 2001 BCPC 0054); 2. Where the court lacks jurisdiction to hear the claim (e.g. Universal Ventures Ltd. v. Gillespie [1993] BCJ No. 2691 (BC Prov.Ct); Long v. Avis [1993] BCJ No. 1999 (BC Prov. Ct)); 3. Claims against the principal of a company which should properly be brought against the company, not the individual (e.g. E.M.Plastics & Electrical Products Ltd. v. Abby Signs Ltd. and Lardeur 2009 BCPC 18 , 2009 BCPC 0018); 4. Claims that turn on the

interpretation of a statute or regulation (e.g. Sidon v. Matsqui First Nation 2008 BCPC 103 ,2008 BCPC 0103); 5. Claims that turn on the

interpretation of a contract (e.g. Landmark Realty Corp. v. 0763486 BC Ltd. 2009 BCPC 19 ,2009 BCPC 0019; Johnson v. Lamb Properties Inc. 2008 BCPC 0193); 6. Claims brought against the wrong party; 7. Claims for solicitor-client costs (prohibited under section 19(4) of the Small Claims Act); 8. Claims brought by or against an unincorporated entity (e.g. Eco-Tourism 2010 Society v. Vancouver 2010 Bid Corporation andHMTQ 2005 BCPC 23 , 2005 BCPC 0023);

9. Claims for the cost of a party attending Small Claims Court, other than those costs allowed under the Act and Rules (seeJohnson v. Lamb Properties Inc. supra, at para 24); 10. Claims against a lawyer simply for acting on behalf of a client (e.g. Pugsley v. Harrison and Cohen 2007 BCPC 370 ,2007 BCPC 0370); 11. Claims under the Personal Property Security Act (as was held in First City Trust v. 282674 BC Ltd. (1983) (BC SC), 82 BCLR (2d) 123 (BCSC)); 12. Unsupported claims for professional negligence (e.g. Sigurder v. Fung and Louie 2007 BCPC 2009); 13.

Claims lacking merit that are brought for the purpose of annoying or harassing the other party; 14. Claims that are an abuse of the process of the court (e.g. Bank of Montreal v. Smith [1993] BCJ No. 2741 (BCPC); Geisser v.City of Prince George, 2016 BCPC 151). [9] This is not an exhaustive list, but it sets out a number of situations when a Judge can prevent the unnecessary scheduling ofcourt time by allowing a motion to dismiss a claim. Generally speaking however, a Judge should be reluctant to decline jurisdictionunless it can be clearly stated why the court lacks that jurisdiction.

This principle was explained in Lou Guidi Construction Ltd. v. Fedick[1994] BCJ No. 2409 (BC Prov. Ct) where the late Chief Judge Stansfield of this court wrote: In short, as a general proposition, I conclude that a judge of this court should assume she or he has jurisdiction to hear every claim fordebt or damages (other than defamation and malicious prosecution) where the claim is limited to $ 10,000 [now $35,000] or less, unlessa party can demonstrate a statutory bar to that exercise of jurisdiction.

Position of the Parties [10] In this case, the Claimant wants his day in court (or at least his settlement conference). The Defendant says that he shouldn’thave it. The burden rests with the Defendant to show why this Claim should not get through the gate to the next stage. [11] At first glance, it appears that the Claimant is seeking damages for the wrongful taking of his property, as well as for someemotional damages that have been incurred because of the wrongful taking of his property.

These would normally be claims which couldbe heard in Small Claims Court, presuming that there was no other reason to dismiss the claim. [12] Essentially, the Defendant’s argument is that the Claimant is not actually seeking damages for wrong conversion of property(and for “pain and suffering”). The Defendant asserts that this is really a claim for a declaration that the City acted improperly in theenforcement of one of its bylaws.

The Defendant cites a number of authorities for the proposition that where a claim requires a court toexamine the question of whether or not a municipal body has acted properly in the enforcement of a bylaw, then this is something thatmust not be heard in Small Claims Court. It must be decided in Supreme Court. [13] The Defendant has referred to a number of authorities to support its position, some of which are binding on this court, whileothers are not technically binding, but should be followed on the principle of comity. I will summarize these authorities: 1. In Khani-Hanjani v.

City of Surrey 2012 BCPC 346, the claimant sued the City of Surrey for damages incurred when thedefendant entered onto his property for an inspection authorized by the city’s Controlled Substance Property Bylaw. The claim wasdismissed because it was barred under the Limitation Act. In his reasons for decision, the Honourable Judge Hicks of this Court also heldthat the claim was really not one for damages, but rather for a declaration or injunction, a remedy that this court did not have the power togrant. 2. In Bi v.

City of Surrey 2017 BCPC 386, the claimant brought five separate claims against the defendant for negligence,nuisance, damage to property, and recovery of money “illegally obtained” or “illegally collected”. All of the claims turned on whether ornot the defendant was acting properly under its bylaws. The Honourable Judge Sudeyko of this Court dismissed the majority of theclaims.

He found that in order to properly adjudicate the claims, this Court would have to “examine the legality of the bylaw enforcementand make a declaratory finding before considering the possible damages.” He held that the Court could not litigate the question of thecity’s authority to act under its bylaw. 3. In Varzeliotis v. The Queen 2007 BCSC 620, a decision which is binding on this Court, the claimant brought a Supreme Courtaction which included a claim for damages. The action concerned the plaintiff’s dissatisfaction with the Freedom of Information andPrivacy Commissioner.

The case is authority for the proposition that a party cannot claim for damages where it has an administrative lawremedy available to it. [14] The Defendant argues that since the Claim results from an allegation that it improperly exercised its statutory powers, the onlyremedy available to the Claimant at law is that of judicial review, pursuant to

section 2 of the Judicial Review Procedure Act. Subsection(1) of

section 2 requires that “[a]n application for judicial review must be brought by way of a petition proceeding” and the Act goes onto provide that this must be done in the Supreme Court. [15] The Claimant is suing for monetary damages and not for judicial review of any decisions under the bylaw. A claim for damagesis clearly within the authority of the Small Claims Court. But the Defendant argues that the only way that the Claimant can recoverdamages is if it can first be shown that the Defendant exceeded its authority under the bylaw.

In the Judicial Review Procedure Act, theLegislature has stated that this can only be done in the Supreme Court and not in Small Claims Court. [16] The Claimant has made submissions both in writing, and in oral argument when the motion to dismiss his Claim was heard. Hissubmissions do not specifically address the issue of whether or not his Claim can be heard in Small Claims Court. He asserts that,contrary to the submissions of the Defendant, he has sought legal advice (although he does not set out whether or not that advice

supported his position). His main complaint is that it would be unfair to force him to have his claim heard in Supreme Court because he cannot afford the cost of litigating the matter in Supreme Court. [ 17 ] In his submissions, the Claimant goes on to state that the Defendant has not properly complied with its bylaw. He alleges that it failed to give him the proper notice required under the bylaw. He also claims that he was treated rudely by the Defendant’s employees.

He also states that all of this took place at a time when he was addressing a serious health issue, which made it very difficult for him to do the clean-up of his property that was required under the bylaw. [ 18 ] The Claimant’s submissions go on to complain about the lack of clarity in setting out the proper procedures for enforcement of the bylaw. These submissions go on to make it clear that what is at the root of the Claim is that he wants the court to take the Defendant to task for not complying with its bylaw. His submissions conclude as follows: Analysis [ 19 ] In Bi v.

City of Surrey , most of the claims brought by the Claimant were dismissed because they turned on whether or not the City was acting properly under its bylaws. The Honourable Judge Sudeyko of this Court dismissed those claims because he found that in order to properly adjudicate the claims, this Court would have to “examine the legality of the bylaw enforcement and make a declaratory finding before considering the possible damages,” something that the Small Claims Court is not authorized to do. [ 20 ] This is almost identical to the action brought by the Claimant.

By his own admission, contained in his written submissions, the Claimant is asking this court to find that the Defendant acted improperly under its bylaw and declare that their all of its “subsequent actions are therefore invalid.” The problem is that he is asking the Small Claims Court for an order that the Court does not have the power to make. [ 21 ] The law of this Province requires that the Claimant must ask the Supreme Court of BC for the remedy he seeks. The Claimant believes this to be unfair.

He views this as a David and Goliath situation in which he is being bullied by the power and might of the Defendant. There are a number of problems with this reasoning. Firstly, the Claimant’s assumption that he will be treated unfairly in the Supreme Court is not a rational one. It is true that proceedings may turn out to be quite costly if the Claimant’s cause is without merit. But if it does lack merit, then it should not be brought in either court. The limited resources available in Small Claims Court should not be seen as a place to vent against government simply because it is cheaper to do so.

If his claim does have merit, he should be confident that the Supreme Court Justice will follow the law and do the right thing. [ 22 ] The second problem is that it is inconsistent for the Claimant on the one hand to argue that the Defendant should be punished for not following the law, and on the other hand to ask that this be remedied by having the Small Claims Court not follow the law. Remedying one wrong with another is not the right approach and only promotes the very wrong that the Claimant complains against.

He is in essence saying that it is wrong to break the law when it goes against my interest, but right to do so if it works in my favour. [ 23 ] On a previous occasion, it was suggested to the Claimant by the Honourable Judge Brown of this Court that the Claimant should get some legal advice on the question of whether or not he should be seeking his remedy in Small Claims Court. The Claimant states in his written argument that he did get some legal advice, but conveniently avoids the question of whether or not the advice was to proceed in this Court or in Supreme Court.

If he was advised to proceed in this court, it would be helpful to know what this advice was based on, for example if the advising lawyer provided the Claimant with any case law that supported this position. If the advice was for the Claimant to bring his action in Supreme Court, then that advice should have been respected. Order [ 24 ] I find that this Claim cannot be brought in Small Claims Court because before the Claim can be properly decided, the Court must rule on whether or not the Defendant acted properly in following and enforcing its bylaw.

The Legislature of this Province has passed a law, the Judicial Review Procedure Act , which directs that this must be determined in the Supreme Court of British Columbia and not in Small Claims Court. This means that this Court lacks the jurisdiction to hear this Claim. [ 25 ] Accordingly, this Claim is dismissed pursuant to Rule 16 (6) (

o) and Rule 7 (14) (

i) of the Small Claims Rules. [ 26 ] The Defendant has not asked for any order of costs to be made against the Claimant and no order for costs is being made in favour of or against either party. Dated at the City of Abbotsford, in the Province of British Columbia, this 28 th day of October, 2019. _________________________________________ The Honourable Judge K. D. Skilnick Provincial Court of British Columbia