Cash Stop Loans Inc. v. Thiessen Date:, 2016 BCPC 42

Citation: Cash Stop Loans Inc. v. Thiessen Date: 20160219 2016 BCPC 0042 File No: 40398 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: CASH STOP LOANS INC. CLAIMANT AND: MATHEW HENRY THIESSEN DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing for the Claimant: Ms. A. Cacka Place of Hearing: Kamloops , B.C. Date of Hearing: November 9, 2015 Date of Judgment: February 19, 2016 [ 1 ] This is an application by the judgment creditor to waive the requirement for service of the Notice of Arrest on Mr. Thiessen or,

[ 1 ] This is an application by the judgment creditor to waive the requirement for service of the Notice of Arrest on Mr. Thiessen or, alternatively, for an order for substitutional service of the Notice of Arrest by e-mail to both addresses provided by the Defendant at matao23@hotmail.com and mattytee@hotmail.com. [ 2 ] The Defendant lives or has lived at 225 - 1951 Garibaldi Way in Squamish, British Columbia. He has been served there previously in these proceedings. The judgment creditor does not know the post office box number associated with the apartment unit on Garibaldi Way.

The judgment creditor has also conducted a skip trace of the judgment debtor and has concluded he may no longer be at this physical address. In Squamish, the residents evidently only receive mail through post office box numbers. [ 3 ] The judgment debtor is aware from the judgment creditor’s e-mail exchanges that the judgment creditor is seeking a warrant of arrest. [ 4 ] The problem arises with the Notice of Arrest. Under Rule 14(1) of the Small Claims Rules , when a Warrant of Arrest is issued, the registrar must serve the person named in the warrant with a Notice of Arrest.

The purpose of a Notice of Arrest is to give the person the opportunity to attend court voluntarily once a Warrant of Arrest is issued in court. The Rule specifically states that it is the registrar who must effect this service, not the judgment creditor. [ 5 ] Rule 18(12)(

a) and (

b) provide as follows:

(12) Any document may be served on a person (

a) by following (

i) Rule 2, if the person is not a corporation referred to in subparagraph (ii), or (ii) subrule (6.1), if the person is a corporation incorporated outside British Columbia but is not an extraprovincial company, unless the document is a summons to a payment hearing or to a default hearing, or (

b) by mailing it by ordinary mail to the person’s address, unless the document is a notice of claim, a third party notice or a summons to a payment hearing or to a default hearing. (See Rules 2, 5(4), 12(7) and 13(5)). [ 6 ] Since a Notice of Arrest, despite its serious implications and strict timelines, is none of the specifically enumerated items in Rule 18(12)(b) , service of it may be effected by ordinary mail. The purpose of it is to give delivery to an address where the judgment debtor is believed to be.

A certificate of service is not mandated. [ 7 ] The Registrar or delegate mails the Notice of Arrest by ordinary mail to the party to be arrested. If the Notice of Arrest is not returned to the Registrar and the person does not attend court voluntarily within 21 days, the Warrant of Arrest is forwarded to the sheriffs for execution. If the Notice of Arrest is returned, however, a letter is sent to the judgment creditor requesting further information for service or suggesting the judgment creditor make an application to the court for service of the Notice of Arrest by way of substitutional service.

This latter procedure is not contained in the Rules but is a practical and sensible policy adopted by Court Services Branch. [ 8 ] When the Registrar receives these non-delivery notices back from Canada Post this is the procedure it follows. The letter advises the judgment creditor that the Warrant cannot be executed until the Notice of Arrest is served.

The letter invites the judgment creditor to provide additional or alternative address information, or to make an application to a judge to waive the service of the Notice of Arrest, or to allow for service of the Notice of Arrest by substitutional service. [ 9 ] The difficulty appears to be arising from the imperative language of Rule 14(1) . There is no qualifying language that suggests there are circumstances in which the Registrar might not serve the Notice of Arrest. If the judgment creditor has no alternative mailing address, the process reaches an impasse. [ 10 ] I draw some guidance from the case law.

The leading case is the decision of my brother Judge Stansfield in Ho v. Porter , [1994] B.C.J. No. 1574 (QL) (Prov Ct.) . In that case, Judge Stansfield found that if the court is satisfied there is a substantial likelihood the debtor, who is avoiding service, will receive de facto notice of the payment hearing, then substitutional service could be ordered. In this case, the evidence is not so much that the judgment debtor is avoiding service as that the only method of service the Registrar uses is by ordinary mail.

To serve the notice in any other manner would not usually be practical. [ 11 ] This is a case of Canada Post being unable to deliver mail to a physical address. It is not circumstances in which I would have granted substitutional service to a judgment creditor because the requisite service under the Rule can and has been effected. It could be effected by the judgment creditor by other delivery methods such as courier or process service if the judgment debtor has not moved.

The judgment creditor, though, is not the party tasked with serving the Notice of Arrest. [ 12 ] No authority for making an application for substituted service or waiver of service is cited in the letter. The policy appears to have found its genesis in a direction from an Administrative Judge in the context of a single case. It also seems to have arisen after the sheriffs were unable to execute a warrant after a Notice of Arrest was returned to the Registrar. It does not purport to make a direction generally that would be binding in all cases across the province.

Such a direction could only come from the Office of the Chief Judge in any event. Absent such a direction, I am restricted in jurisdiction by the authority I am given under the Small Claims Act , its Rules and the inherent jurisdiction of the court over procedural matters. [ 13 ] I have no jurisdiction under the Act or Rules to transfer the burden of service from the Registrar to the judgment creditor. While service is largely a procedural matter, the burden of service seems to me to be substantive. Ordinarily, parties are tasked with effecting service.

The Rules have specifically provided in this case that the Registrar must do it given the jeopardy to the judgment debtor. [ 14 ] I am satisfied that the procedure adopted by the Court Services Branch is not inconsistent with the Rule to the extent that a judgment creditor is asked for further information in order for the Registrar to effect service elsewhere or in another manner. If there is

no other address for mailing and no other manner of service the Registrar can effect, then it is also appropriate for the Registrar to advise the judgment creditor that it cannot effect that service. The judgment creditor can then apply to the court to waive service of the Notice of Arrest and ask that the Warrant of Arrest be executed. I am not satisfied, though, that I have jurisdiction to order that service or substituted service be effected by the judgment creditor . [ 15 ] The judgment creditor has provided two e-mail addresses by which it has communicated with the judgment debtor in the past.

The e-mail addresses appear to be valid and appear to relate to this judgment debtor. [ 16 ] The Registrar and the registry, however, have no general email address to use to send out these Notices. Email is therefore not a viable option for the Registrar. [ 17 ] There being no other means of service available to the Registrar, I allow the judgment creditor’s application to dispense with Notice of the Arrest and direct that the warrant be executed.

The judgment creditor will have to provide all available information it has on the judgment debtor to assist Sheriff Services in location the judgment debtor at home, work or elsewhere in order for the warrant to be executed. _____________________________ S.D. Frame Provincial Court Judge