Mikszan v. Vetro, 2022 BCPC 64

Citation: Mikszan v. Vetro 2022 BCPC 64 Date: 20220412 File No: 24691 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: ELZBIETA MIKSZAN CLAIMANT AND: SALVATORE VETRO DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN Appearing on their own behalf: E. Mikszan Counsel for the Defendant: Mr. Balakrishnan Place of Hearing: Abbotsford , B.C. Date of Hearing: February 28 and April 11, 2022 Date of Judgment: April 12, 2022

INTRODUCTION [1] On February 28, 2022, I presided over a settlement conference in this matter. The Claimant, Ms. Mikszan, attended in personand was self–represented, and the Defendant, Mr. Vetro, had counsel. [2] At the settlement conference, Mr. Vetro’s counsel argued that this claim ought to be dismissed under the doctrine of resjudicata, that is, the case was already decided upon. Further, he submitted that this new claim for “exploitation” had no merit and wasnot a proper cause of action. Since Ms.

Mikszan was self-represented, I gave her the opportunity to make further submissions on April11, 2022, with possible reply by the Defendant. [3] Ms. Mikszan had already brought two prior small claims actions against Mr. Vetro arising out of their on-again/off-againrelationship. A provincial court judge heard both claims together at a trial held from June 1 to June 3, 2021, and the judge providedcomprehensive reasons for judgment on June 22, 2021. Ms.

Mikszan was only partially successful, and she chose to appeal that decisionto our Supreme Court. [4] My task now is to consider the defendant’s motion for early dismissal of the present claim. MY JURISDICTION TO CONSIDER THE APPLICATION TO DISMISS [5] Small Claims Rule 7(14)(

l) states that at a settlement conference, a judge may “make any other order for the just, speedy andinexpensive resolution of the claim.” Many cases from our court have held that a judge may dismiss a claim or counterclaim at asettlement conference under this rule. See for example Harvey v. Matacheskie, 2003 BCPC 8 , 2003 B.C.P.C. 8, where a claimwas dismissed because it already had been adjudicated upon. [6] As outlined in paragraph 19 of Burton v.

Vancouver/Richmond Health, 2003 BCPC 440 , 2003 B.C.P.C. 440, the role ofa judge under Rule 7 is to act as a gatekeeper in determining if the case can proceed to trial. I am going to act as a gatekeeper here.

THE PRIOR LITIGATION [7] As stated above, a provincial court judge has already heard small claims files 24072 and 24198 together in one trial involvingthe same two parties as this present case. [8] In the Notice of Claim for file 24072, the Claimant claimed that as a result of promises made by the Defendant to “move hereand be with me forever,” she entered into an agreement with her landlords to expand her residential suite in Abbotsford.

Her rentincreased by $500 per month to cover renovations and a larger living space. [9] On the particular issue of whether the Claimant was entitled to compensation for the increased rental cost as a result of theDefendant’s breach of his promise to cohabit with her, the Claimant was awarded $6,000. The Defendant had argued his liability waslimited to $3,000, while the Claimant sought $35,000. [10] In the Notice of Claim for file 24198, the Claimant sought monies or title to a vehicle co-owned with the Defendant ascompensation for work she did in furthering the Defendant’s career as an actor and model.

Her claims were rooted in breach of contractor unjust enrichment. Alternatively, she argued the vehicle was gifted to her. The Defendant counterclaimed for full title to the vehicleand the return of numerous personal items. [11] After a thorough analysis, the trial judge ruled that there was no enforceable agreement between the parties to establish a breachof contract, nor any unjust enrichment for services rendered to the Defendant during the relationship.

Any assistance the Claimantprovided as a “media manager” was accepted by the Defendant as part of the mutual exchange of benefits in a domestic relationship. [12] The trial judge also found no evidence to support the argument that the vehicle was gifted to the Claimant. The Defendant wasentitled to have title to the vehicle in his name alone, but his claim for personal belongings was dismissed. THE PRESENT LITIGATION [13] In this present action 24691, the Claimant seeks in her Notice of Claim $35,000 for “exploitation and pain and suffering” arisingout of the relationship with the Defendant.

She speaks of the Defendant’s “exploitation, deceit, empty promises” which “added damageto my health, causing trauma, anxiety, and depression.” She alleges that the Defendant violated her dignity, human and equal rights as awoman. According to the Claimant, the “Defendant was pulling me into a web of deceit, servitude and his sexual favors.” [14] The Claimant’s Certificate of Readiness has a brief doctor’s note which refers to a general anxiety disorder and a headache issuefor which she sees a neurologist.

There is no medical opinion linking these medical issues to anything arising out of the relationship. [15] Some of the Claimant’s other material filed at the settlement conference related to her claims already made in the prior twoactions. RES JUDICATA [16] The policy behind the doctrine of res judicata or “matter already judged” is twofold. First, there is the interest of the communityin the termination of disputes and the finality and conclusiveness of judicial decisions.

Secondly, there is the interest of an individual inbeing protected from repeated suits and prosecutions for the same cause. [17] This principle that a party should not be “twice vexed” for the same cause must be balanced against the other fundamentalprinciple that courts are reluctant to deprive litigants of their right to have their cases decided on the merits. See paragraphs 25 and 26

from Cliffs Over Maple Bay Investments (Re), 2011 BCCA 180 , 2011 B.C.C.A. 180. [18] The doctrine of res judicata can be broken down into issue estoppel and cause of action estoppel, and they are related to thedoctrine of abuse of process.

Issue estoppel prevents litigants from raising an issue that has already been decided in a previousproceeding, whereas cause of action estoppel prevents a litigant from pursuing a matter that was or should have been the subject of aprevious proceeding. [19] At paragraph 31 of Cliffs Over Maple Bay, the requirements for issue estoppel are set out: 1. the same question has been decided; 2. the judicial decision which is said to create the estoppel was final; and 3. the parties to the judicial decision or their privies were the same persons as the parties in which the estoppel is raised. [20] At paragraph 38 of the same case, the requirements for cause of action estoppel are set out: 1. there must be a final decision of a court of competent jurisdiction; 2. the parties to the subsequent litigation must have been the parties to or in privy with the parties to the prior action; 3. the cause of action in the prior action must not be separate and distinct; 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. [Emphasis added.] CAUSE OF ACTION ESTOPPEL [21] I am focussing on cause of action estoppel in my analysis. [22] First, there is no doubt that the decision from our court on June 22, 2021, regarding the two prior actions was a final decision.

Itcomprehensively dealt with all issues on a final basis. [23] Secondly, there is no doubt that the parties in the two prior actions, Ms. Mikszan and Mr. Vetro, are exactly the same parties inthis case. [24] Thirdly, I conclude that the cause of action in the prior actions is not entirely separate and distinct from the current cause ofaction. In all three actions, the Claimant is suing for losses or claims arising from a failed relationship.

In action 24072, she sued for theincreased rent as a result of expanding her residential suite to accommodate the defendant; in action 24198, she pursued a variety ofclaims arising out of the relationship based on breach of contract, unjust enrichment, or gift.

A trial was heard on both those actions.Now, under this action, she sues for exploitation and pain and suffering arising out of the same failed relationship. [25] The trial judge even commented that the Claimant was reminded numerous times to focus on the claim and not her feelings.Throughout her evidence, she was attempting to come to terms with the loss of what she hoped to be a long-term romantic union.

By myreading of the trial judgment, the Claimant felt exploited by the relationship and she was aware that the claims she then made were toaddress at least some forms of the alleged exploitation. [26] I must remember that Ms. Mikszan is self- represented, and I ought to take a broad reading of her pleadings.

She may well haveintended to allege more than hurt feelings or financial exploitation in the present case. [27] While I agree that “exploitation” is not perhaps a defined cause of action, the pain and suffering resulting therefrom could fallunder the category of emotional or psychiatric injury, or more generally, nervous shock. As discussed in Burton above, these sort ofclaims must be more than the expected emotional response flowing from learning of the troubling event. There must be severe emotionaltrauma manifesting itself in a disorder such as clinical depression or post-traumatic stress disorder.

It does not include emotional upset,mental distress, grief, sorrow, anxiety, worry or other more transient or minor psychiatric injury. [28] In this case, I appreciate Ms. Mikszan had a very negative emotional response to issues arising out of the failed relationship withthe Defendant. Although the pleadings and some materials allude to anxiety and even PTSD, the Certificate of Readiness falls far shortof evidencing a claim for psychiatric injury. The brief medical note simply says the Claimant has a general anxiety disorder andheadaches.

It in no way connects those symptoms to the Defendant or even the relationship. [29] Again, I acknowledge the Claimant is without counsel and she was upset about the failed relationship. However, when I readwhat is actually written in this third Notice of Claim involving these parties, I cannot discern a separate and distinct cause of action suchas nervous shock or psychiatric injury.

I come to that conclusion even when considering all other documents on file, including theCertificate of Readiness. [30] Fourthly, and most significantly, I find that the Claimant’s claims in the present action arising from alleged “exploitation” couldhave and should have been raised in the prior two actions if the Claimant were acting with due diligence.

I appreciate the Claimant isself-represented, but the prior trial spanned three days and covered all manner of causes of action arising out of the parties’ relationship.She was suing in contract or unjust enrichment to compensate for her perceived services as a media manager for the Defendant. She suedfor the vehicle as compensation or a gift. The Claimant’s only success, in part, arose out of her claim for increasing the size of herresidence.

[ 31 ] The Claimant either knew or ought to have known that she could have raised any additional “exploitation” or psychiatric injury claim against the Defendant within the two prior actions and during the three-day trial. She appears to have expressed her alleged pain and suffering, or at least “tremendous hurt and bad feelings,” to the trial judge, but she chose not to pursue those sort of claims more specifically. [ 32 ] In short, Ms. Mikszan could have claimed and argued “exploitation,” psychiatric injury or nervous shock in the prior two proceedings if she were acting with due diligence.

Those claims are now res judicata , and she is estopped from raising them. Overall, it is an abuse of process. [ 33 ] I adjourned the Defendant’s application to dismiss to April 11, 2022, to allow the Claimant to make further submissions or to provide further documents supporting any distinct and viable cause of action in the present case. She provided no further documents, and I continue to find that her case falls well short of a claim for any type of psychiatric injury.

She did refer to sexual exploitation based on deceit in her submissions, but her pleadings certainly do not set out any incidence of an intentional tort, a sexual assault, a police report or facts supporting the tort of deceit. Her Certificate of Readiness makes no reference to matters of a sexual nature at all. [ 34 ] Again, I understand Ms. Mikszan remains very upset by the failed relationship, but the court is not the venue to redress her current claims. [ 35 ] Based on my ruling above, the new claim is res judicata and any listed cause of action has no prospect of success.

ORDER [ 36 ] The Notice of Claim is dismissed under the doctrine of res judicata and abuse of process. The Defendant is awarded costs for filing a Reply. __________________________ G.J. Brown Provincial Court Judge