528076 B.C. LTD. CLAIMANT AND: GERALD EMMERSON CLARKE carrying on business as C & C CUSTOM MOTORWORKS v. GERALD EMMERSON, 2013 BCPC 169

Citation: 528076 B.C. Ltd. v. C & C Custom Motorworks et al. Date: 20130702 2013 BCPC 0169 File No: 39537 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: 528076 B.C. LTD. CLAIMANT AND: GERALD EMMERSON CLARKE carrying on business as C & C CUSTOM MOTORWORKS and GERALD EMMERSON CLARKE and C & C MOTORWORKS DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing for the Claimant: Mr. V. Smoluk Place of Hearing: Kamloops , B.C. Date of Hearing: May 27, 2013 Date of Judgment: July 2, 2013 [ 1 ] This matter came on before me on an application for a default order. The application was unusual because the Claimant sought

possession of commercial premises. [ 2 ] A Notice of Claim was filed on February 6, 2013. At that time, the Notice of Claim only identified rent owing on commercial premises, leased by the Defendants from the Claimant. On that same day, the Claimant brought an application for an order for possession of 1937 Quilchena Avenue, Merritt, BC, and further for an order that the numbered company be permitted to seize the inventory to offset eviction costs. That application was set for hearing for February 15, 2013 and was served on Gerald Clarke. [ 3 ] Mr.

Smoluk did not appear on February 15, and so his application for an order for possession was dismissed. [ 4 ] The Claimant made an application on April 10, 2013 to set aside the order of dismissal which was allowed. The Defendant was given 30 days to file a reply to the notice of claim in that same application. No reply was filed to the Notice of Claim. [ 5 ] On May 15, 2013, the numbered company made an application for a default order on the monetary amount of the claim as well as the application for possession. Mr.

Clarke did not attend. [ 6 ] The Claimant is entitled to judgment in the sum of $13,262.64, being the monetary amount claimed for the unpaid rent and related costs as of May 27, 2013, being the hearing date. [ 7 ] With respect to the application for an order for possession, this court’s jurisdiction is as provided in s. 3 of the Small Claims Act : 3

(1) The Provincial Court has jurisdiction in a claim for (

a) debt or damages, (

b) recovery of personal property, (

c) specific performance of an agreement relating to personal property or services, or (

d) relief from opposing claims to personal property if the amount claimed or the value of the personal property or services is equal to or less than an amount that is prescribed by regulation, excluding interest and costs. [ 8 ] This application for an order for possession is with respect to commercial property, which does not fall within the jurisdiction granted by s. 3 of the Small Claims Act . The Claimant must look to the terms of its lease to effect a termination of that lease, or it must look to the Commercial Tenancy Act , which is within the jurisdiction of the Supreme Court only.

Independent of the application for order for possession or termination of the lease, as the case may be, the Claimant has the ability to execute on the monetary judgment, which is within the jurisdiction of this court. An order is not required for that relief. The numbered company must proceed with such execution by whatever means are available to it as provided by the Act and Rules , including a writ of seizure and sale or garnishment. ________________________ S.D. Frame Provincial Court Judge