Chefs Secret Service Inc. v. Greyell, 2021 BCPC 42

Citation: Chefs Secret Service Inc. v. Greyell 2021 BCPC 42 Date: 20210309 File No: 23883 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (SMALL CLAIMS COURT) BETWEEN: CHEFS SECRET SERVICE INC. CLAIMANT AND: BRYAN WAYNE GREYELL DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE K.D. SKILNICK Appearing for the Claimant: C. E. Brady Counsel for the Defendant: D. Larson Place of Hearing: Abbotsford , B.C. Date of Hearing: March 4, 2021

Date of Judgment: March 9, 2021 Introduction [1] The Defendant Bryan Wayne Greyell brings an application pursuant to Rule 7(14)(

i) of the Small Claims Rules for dismissal ofthe Claim brought in this case on two grounds: (

a) The Claimant, as named in the Claim is not an incorporated company or entity of any kind and is therefore incapable of making aClaim under the Small Claims Act; and (

b) The issues raised in this Claim had previously been decided in other litigation in the Supreme Court of British Columbia andtherefore these matters are res judicata (meaning that they have already been adjudicated, and the Claimant is precluded from bringingmultiple court actions for the same subject matter.) [2] The law concerning dismissal of a Claim prior to trial has been the subject of a number of decisions of this Court. There are twocore principles which apply to such an application: 1.

Dismissal of a claim at or before a settlement conference has been held is a remedy to be used sparingly and only in clear cases. 2.

Where a Judge of this Court is satisfied that a claim is without reasonable grounds, discloses no triable issue, seeks a remedy that theCourt is not empowered to grant, or is otherwise found to be frivolous or an abuse of the Court’s process, the claim should be dismissedprior to trial. [3] The law pertaining to these types of applications is set out in more detail in a number of decisions of this Court, including Klos v.Fraser Valley Christian Soccer Association, 2020 BCPC 199; Treminio v.

Aveda Institute, 2017 BCPC 348; Shantz, Gorman v.Godfroid, 2012 BCPC 81; Watch Lake North Green Lake Volunteer Fire Department Society v. Haskins et al., 2010 BCPC 114, 2010 BCPC 0114; Brown v. RE/MAX Select Realty, 2020 BCPC 250; Lura v. Jazz Forest Products

(2004) Ltd., 2014 BCPC14, to list a few. [4] Each of the proposed grounds for dismissal of the Claim in this case will now be addressed. The First Ground: The Name of the Claimant [5] In this case, counsel for the Defendant asserts two reasons why this Claim is destined to fail even before any evidence has beencalled. The first reason is because there is no such legal entity as Chefs Secret Service Inc.

While this is factually correct, it does notpaint a complete picture in this case. [6] The Defendant and Cynthia Brady, formerly known as Cynthia Greyell, were once husband and wife and were also oncedirectors and shareholders in a company called Chefs Secret Service Catering Company Inc. These two individuals were parties to anaction in the Supreme Court of British Columbia in Vancouver, having Court File E172918.

An order was made in that action awardingCynthia Brady (then known as Cynthia Greyell) sole ownership of this company (incorrectly named in the order as “Chef’s SecretServices Catering Ltd.”). [7] In its Notice of Claim, the Claimant in this action has taken the unusual step of attaching a copy of the Notice of Articles of thiscorporation, as well as a Notice of Change of Directors. Both of these documents show the name of the corporation as Chefs SecretService Catering Company Inc.

In this case, there is no doubt which corporation is being referred to and the Defendant has not beenmisled about which company he is being sued by. [8] As a general rule, an unincorporated entity such as Chefs Secret Service Inc. is not a person at law, and any action brought bysuch an entity can be dismissed, as was the case in Eco-Tourism Society v. Van. 2010 Bid Corp. et al., 2005 BCPC 23. [9] In this case however there is actually an incorporated company, but it has been misnamed on the Notice of Claim.

This can beremedied under Rule 8 of the Small Claims Rules by amending the name of the Claimant, as was done by this Court in Universal KitchenCabinets v. Dhanai, 2019 BCPC 177. In that case, the Honourable Judge W.L.

Lee of this Court held that doing so was in keeping withsection 2 of the Small Claims Act, which provides that the purpose of the Act is “to allow people who bring claims to the ProvincialCourt to have them resolved… in a just, speedy, inexpensive and simple manner.” [10] In this case, given that the Defendant has not been misled in any manner, especially since the corporate documents in the correctname of the Claimant were attached to the Claim, and thus it would be unjust to dismiss the Claim for this reason.

Pursuant to Rule 8(1)of the Small Claims Rules, it is ordered that the Notice of Claim be amended to show the name of the Claimant as “Chefs Secret ServiceCatering Company Inc.” The Second Ground: Res Judicata [11] As previously stated, the Defendant and Cynthia Brady were each parties to the action previously referred to in the BritishColumbia Supreme Court. The Claimant was not a party to that action. It was however the subject of one of the terms of an order madein that action on April 1, 2019 by the Honourable Justice Sharma.

That order provide in paragraph 5 as follows: “The Claimant [Cynthia Eileen Greyell – now known as Cynthia Eileen Brady] shall be sole owner of Chef’s Secret Services CateringLtd. (sic) (the “Company”) and the Respondent [Bryan Wayne Greyell] will transfer any shares in the company in his name to theClaimant, if there are any shares currently in his name. The Respondent will immediately confirm the location of the truck belonging tothe Company and from the date of this order forward the Claimant will take possession of the Company’s truck.

The Respondent shallpromptly execute any documentation provided to him by the Claimant evidencing his resignation as an officer or director of the

Company.” [12] The same order went on to provide, in paragraph 9, that “All other claims will be dismissed as if there had been a trial on themerits.” [13] Counsel for the Defendant takes the position that the effect of this order is that all matters concerning the company have beendealt with, and that the company, as a privy to Cynthia Brady, is precluded from bringing any claims concerning any property belongingto it.

In support of this proposition, counsel relies on two decisions of the British Columbia Court of Appeal. [14] In Cliffs Over Maple Bay Investments (Re), 2011 BCCA 180, the Court summarized the requirements for the doctrine of ResJudicata to be applied to subsequent court actions. Newberry J.A. wrote: [28] Although grounded in the same basic considerations, each form involves, or has traditionally involved, criteria that have beenexpressed in slightly different terms. The traditional criteria for cause of action estoppel, confirmed in Canada in Angle, supra, weresummarized by Chief Justice Hewak in Bjarnarson v.

Manitoba (1987) (MB QB), 38 D.L.R. (4th) 32 (Man. Q.B.) at34, aff’d. (1987) (MB CA), 45 D.L.R. (4th) 766 (Man. C.A.), as taken from Grandview v. Doering(SCC), [1976] 2 S.C.R. 621: 1. There must be a final decision of a court of competent jurisdiction in the prior action [the requirement of “finality”]; 2. The parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action [the requirement of“mutuality”]; 3. The cause of action and the prior action must not be separate and distinct; and 4.

The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties hadexercised reasonable diligence. [At para. 6; emphasis added.] [15] In this case, the parties are different from those in the BC Supreme Court action, in that in this case it is the corporation and notMs. Brady who is suing the Defendant. Counsel for the Defendant argues that the doctrine of res judicata still applies because theClaimant in this case is a privy of Ms.

Brady. [16] Generally speaking however, the term “privy” is used to describe someone or something is stands in the place of the party theyare said to be privy to. For example, an executor or administrator of an estate is a privy to the deceased testator or intestate. An assigneeof a contract is a privy to the assignor. Here, the Claimant is clearly not a privy of Ms. Brady. [17] Counsel argues that even if the Claimant is not a privy of Ms. Brady, the doctrine of issue estoppel still applies to this casebecause the Supreme Court litigation concerned the issue of ownership of the Claimant.

He relies on the British Columbia decision ofErschbamer v. Wallster, 2013 BCCA 76. [18] The Notice of Claim in this action alleges that the Defendant stole money from the Corporation and that the truck, which was aprincipal asset of the Corporation, was damaged by him before it was returned. The Notice of Family Claim in the Supreme Court soughtan order for divorce, an order for spousal support, an order relating to family property and family debt, and an order that the Defendantreturn any property he had taken.

The Supreme Court pleadings alleged that the Defendant had failed to deposit profits into the companyaccount, but only as a factor to be taken into account in support of Ms. Brady’s claim for an unequal division of the family property.

It isnot clear from the pleadings or from the order that the specific claims set out in the Notice of Claim in this action were claims that wereruled in in the Supreme Court Order. [19] It may be that there is merit to Counsel’s argument that the Defendant is not personally liable for those things claimed by theCorporation, and that as a director at the time, he had the authority to take the actions complained of by the Claimant in the Notice ofClaim. However it may also be that, because the truck that was the main asset of the Corporation was being hidden from Ms.

Brady atthe time of the Supreme Court Order, the Defendant acted fraudulently in misrepresenting the true state of the company at the time of thegranting of the Supreme Court order. This is analogous to the purchaser of a house who agrees to take the house “as is” at the time ofinspection, only to discover when they take possession that the property has been subsequently damaged. [20] The point is that whether or not the Defendant is correct in his assertion that these are the same issues ruled on in the SupremeCourt is something that is in dispute and is unclear from the pleadings.

In order to establish this defence, further evidence must be heardat trial. The matter cannot be decided summarily. Order [21] For the foregoing reasons, the application for

summary dismissal of the claim is denied. It is further ordered that, pursuant toRule 8(1) of the Small Claims Rules, it is ordered that the Notice of Claim be amended to show the name of the Claimant as “ChefsSecret Service Catering Company Inc.” Dated at the City of Abbotsford, in the Province of British Columbia this 9th day of March, 2021. _____________________________ The Honourable Judge K.D. Skilnick

Provincial Court of British Columbia