Johnson v. Smirfitt, 2023 BCPC 128

Citation: Johnson v. Smirfitt 2023 BCPC 128 Date: 20230609 File No: C- 7700 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MATTHEW LEWIS JOHNSON CLAIMANT (AS RESPONDENT ON THE APPLICATION) AND: LISA AUBRY SMIRFITT DEFENDANT (AS APPLICANT ON THE APPLICATION) RULING ON APPLICATION OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Claimant: K. Egner, Articled Student; A. McCray Counsel for the Defendant: S. Uppal Place of Hearing: Colwood, B.C. Date of Hearing: March 31, 2023 Date of Judgment: June 9, 2023

Introduction [ 1 ] The Defendant, Lisa Smirfitt, also known as Lisa Aubry Smirfitt (the “Applicant”) applies under Small Claims Rule 7(14) to dismiss the action (the “Action”) brought against her by the Claimant, Matt Johnson, also known as Matthew Lewis Johnson (the “Respondent”). [ 2 ] In this pre-trial application (the “Application”) filed on October 3, 2022, the Applicant, says in

summary, that the relief being sought by the Respondent (as Claimant) against her as the Defendant is beyond the jurisdiction of the Provincial Court. Furthermore, a significant part of the claim made in the Action arises from a residential tenancy dispute and another significant part of it seeks an equitable relief remedy requiring the granting of declaratory relief, which again it is submitted is not within the jurisdiction of this Court. [ 3 ] The Respondent (being the Claimant) opposes the Application for dismissal, characterizing it as drastic remedy. Again in

summary, the Respondent says that the true nature of the claim is within the jurisdiction of the Provincial Court, although it is conceded that the pleadings, by way of the Notice of Claim, prepared by the Claimant, without legal advice or representation, will need to be amended. [ 4 ] This matter has not yet proceeded to a Settlement Conference. [ 5 ] This Court must decide whether or not this is a situation which warrants a dismissal of the Action at this stage of the proceedings or alternatively are there further orders that this Court must make.

Background Circumstances [ 6 ] It is common ground that this case arises out of the break down in the romantic relationship between the Applicant and the Respondent. [ 7 ] The materials before this Court indicate that in or around October 2020, the Applicant was residing with her two children in a self-enclosed basement suite (the “Suite”) located on lands and premises in Victoria, BC which were owned by the Applicant’s parents, Gary Robert Smirfitt and Carla Kathleen Smirfitt (the “Defendant’s Parents”). [ 8 ] The Respondent began living with the Applicant in the Suite on or about November of 2020.

Although there are apparently no written agreements, the Respondent made certain payments in connection with the living arrangement for the sharing of the Suite. [ 9 ] Unhappy differences arose as between the Applicant and the Respondent, resulting in the parties discontinuing the living arrangement and the Respondent leaving the Suite in or about February of 2022. [ 10 ] There are significant factual disputes about the alleged oral agreements as between the parties and the nature of payments made by or amounts that should have been paid by the Claimant.

The Pleadings The Notice of Claim [ 11 ] On May 10, 2022, the Respondent, as Claimant, commenced an action against the Defendant and filed a Notice of Claim.

In the Notice of Claim he seeks a judgment against the Applicant, as Defendant, for an amount of $22,050 plus filing and service fees of $176, totalling $22,226 (the “Notice of Claim”). [ 12 ] The Claimant (Respondent) was self-represented at the time of the preparation and filing of the Notice of Claim and he has been self-represented until very recently up to and shortly before the hearing of this Application. [ 13 ] The facts being relied upon in support of these claims, as set out in the Notice of Claim, are somewhat cryptic and also somewhat unclear and confusing. [ 14 ] To summarize, in the Notice of Claim:

a) The Claimant seeks what is described as amounts that he paid for “extra rent” for three separate periods [which herein I will call the “Extra Rent Claim”] totaling $18,350 and it is further alleged that the “extra rent” payments were paid “as a form of savings” and were held by the Defendant’s Parents;

b) The Claimant particularizes the amount comprising the Extra Rent Claim as: (i) 6 months at $550 per month from November to April 2021 totaling $3,330; (ii) 9 months at $1,450 per month from May to January 2022 totaling $13,050; and (iii) 1 month total of $2,000 for the single month of February 2022;

c) In addition, the Claimant seeks reimbursement for an alleged missed payment on a phone bill of $1,200, and the alleged expense of $2,000 to cancel the phone plan, thereby totaling $3,200 [which herein I will call the “Cell Phone Plan Claim”]; and

d) The Claimant further claims reimbursement for his moving costs in the amount of $500, alleged to have arisen as a result of an

eviction “with no notice” [which herein I will call the “Moving Expense Claim”]. [15] While the particulars of the amounts being claimed within the Notice of Claim are somewhat clear, there are some significantgaps in the substance of the Notice of Claim, including many of the facts being relied upon in support of the three types of claims. The Reply and the Counterclaim [16] The Defendant (Applicant) filed a comprehensive Reply on June 1, 2022 which apparently was prepared with the assistance oflegal counsel (the “Reply”). It denies the substance and the amounts of the claims as set out in the Notice of Claim. [17] In

summary, in the Reply, the Defendant (Applicant) sets out a factual basis which she alleges formed the background for theclaim and her absolute denial of it. [18] In

summary, the Reply says:

a) The agreement for the Claimant and the Defendant to occupy the Suite together required that the Claimant pay rent of $1,200per month and to reimburse the Defendant for any expenses she incurred on the Claimant’s behalf relating to their living arrangement;

b) The Claimant never paid the Defendant rent that was to be held by the Defendant’s Parents as a form of savings and that therewas no such agreement as between the Defendant and the Defendant’s Parents on one hand and the Claimant on the other, to hold any ofthe monies paid for rent as a form of savings for the Claimant;

c) All money paid by the Claimant to the Defendant was in consideration for him residing in the Suite;

d) The Claimant abandoned the Suite and thus he was not entitled to notice from the Defendant under the Residential TenancyAct, SBC 2002, c 78, or alternatively the Residential Tenancy Act does not apply to the non-arm’s length arrangement between theClaimant and the Defendant for the occupation of the Suite; and

e) The cell phone plan which is the basis of the Cell Phone Plan Claim were Christmas gifts made by the Claimant to theDefendant and her children in both December 2020 and December 2021. [19] The Reply also contained a counterclaim against the Claimant for $34,794 (the “Counterclaim”) representing the following:

a) An estimate of the unreimbursed general living expenses incurred by the Defendant on behalf of the Claimant during the periodbetween November 2020 and February 2022, being $5,400;

b) Unpaid rental arrears for the month of February 2022, being $1,200;

c) Damages in the amount of $1,200, arising from the Claimant’s failure or in the alternative the Claimant’s refusal or failure toprovide notice that he was abandoning the Suite;

d) Damages in an amount representing personal property, including cash, belonging to the Defendant which was taken by theClaimant when he abandoned the Suite, totaling $1,050;

e) The unreimbursed cost of the Claimant’s personal items which were purchased for him and on his behalf by the Defendant buton the basis that he would reimburse her within one month from the date of purchase, being $1,000; and

f) In the event that the Court determines that the Claimant paid the Defendant monies to be held by the Defendant’s Parents as aform of savings, then an alternative claim, for unjust enrichment equal to the market rent for the Suite during the period of theClaimant’s occupancy, equaling $32,000. [20] No Reply to the Defendant’s Counterclaim has been filed by the Claimant in accordance with the Small Claims Rules. Case and Statutory Authorities Cited and Relied Upon by the Applicant [21] The Applicant has referred this Court to the following case authorities and statutory provisions in support of its position on thisApplication:

a) Bi v. Surrey (City), [2017] B.C.J. No. 2575 at paras. 27 to 28;

b) Gates v. Sahota, [2018] B.C.J. No. 3357 at para. 87;

c) Hatch v. Mackedie, [1998] CanLII 1080 (BCSC);

d) Huang v. Li, [2020] B.C.J. No. 1825 at para. 453;

e) Sorochan v. Sorochan, (SCC), [1986] 2 SCR 38 at para. 11; f) 0856464 B.C. Ltd. v. TimberWest Forest Corp., [2012] B.C.J. No. 804 at para.14;

g) Antrobus v. Antrobus, [2009] B.C.J. No. 1947;

h) Small Claims Act, RSBC 1996, c 430 at s. 3(1) which establishes the Provincial Court’s jurisdiction for claims; and

i) Residential Tenancy Act, SBC 2002, c 78:

(i) s. 44(1), [entitled: How a tenancy ends]; (ii) s. 45(1) [entitled: Tenant’s notice: family violence or long-term care]; (iii) s.52 [entitled: Form and content of notice to end tenancy]; and (iv) ss. 58 (3), (4) and (4.1) [being

Part 5 - entitled Resolving Disputes and Division 1- Dispute Resolution Proceedings]. The Basis for the Application [ 22 ] The Application was filed on October 3, 2022 on behalf of the Applicant. It was originally scheduled for hearing on February 17, 2023, but could not proceed on that date in front of another judge due to a lack of court time. [ 23 ] The basis for the Application for dismissal of the Claimant’s Action may be summarized as follows:

a) The Claimant has not pled sufficient facts to establish any legal basis for the relief being claimed in the Notice of Claim. [Reliance is placed upon 0856464 B.C. Ltd. v. TimberWest Forest Corp. , at para. 14.];

b) The Claimant has failed to plead and there is no legal basis available, whether in common law or statute, for the Claimant to obtain the relief being sought in the Notice of Claim. [Again reliance is placed upon 0856464 B.C. Ltd. v. TimberWest Forest Corp. ];

c) In the alternative, the remedy sought by the Claimant is not a claim for debt or damages but rather the Claimant is seeking a remedy, “more in the nature of a declaration” and more specifically a declaration of a constructive trust, which is beyond the jurisdiction of the Provincial Court; in the alternative, the Claimant has failed to plead sufficient facts in support of that relief. [Reliance is placed upon s. 3(1) of the Small Claims Act , Bi v. Surrey (City) , Antrobus v. Antrobus , and Sorochan v. Sorochan ];

d) The Claimant has failed to name the proper Defendant(

s) which it is submitted should be the Defendant’s Parents because they and not the Defendant are alleged to be holding a form of savings account, which is the subject matter of a claim for unjust enrichment made by the Claimant. Further, or in the alternative, it is actually a claim for a declaration of a constructive trust which requires there to be: an enrichment, a corresponding deprivation; and the absence of any juristic reason for the enrichment. All three of those requirements are not met and that declaration of a constructive trust is beyond the jurisdiction of the Provincial Court. [Again reliance is placed upon Sorochan v. Sorochan ];

e) A part of the Claimant’s claim for damages arises out an allegation that the Defendant failed to satisfy her notice obligations under Residential Tenancy Act , which is within the exclusive jurisdiction of the Residential Tenancy Branch; therefor that claim must be submitted to the Director for dispute resolution and thus it is outside of the jurisdiction of the Provincial Court. [Reliance is placed upon ss. 44(1) , 45(1) , 52 , 58(1) , (3) (4) and 58(4.1) of the Residential Tenancy Act and the decision of Gates v. Sahota ];

f) The Claimant’s Cell Phone Plan Claim is actually a claim in unjust enrichment for which the Defendant has not been unjustly enriched because she purchased a new cell phone plan upon the Claimant leaving the Suite. Further, or in the alternative, the Claimant gifted the cell phone plan to the Defendant and now seeks compensation simply because of the end of their romantic relationship and thus on that basis he is not entitled to revoke a perfected gift. [Reliance is place upon Huang v. Li ].

In the further alternative the Claimant has failed to mitigate his loss by not transferring the cell phone plan into his name. The Basis of the Opposition of the Claimant, as Respondent, to the Application for Dismissal [ 24 ] The Applicant has filed a significant amount of documentation including affidavit materials of the Defendant in support of the Application. [ 25 ] The Claimant has not filed a like amount of documentation and specifically has not filed any affidavit material on behalf of the Claimant in response to the Application and in opposition to it.

However, the Claimant, as Respondent, has actually filed some responding materials. [ 26 ] The Respondent’s “Response to the Defendant’s Application to Dismiss” was filed on March 28, 2023 with the assistance of legal counsel (the “Application Response”). It sets out with a much higher degree of clarity the factual basis for the Action than is contained within the Notice of Claim. [ 27 ] In

summary, the Application Response asserts that the facts are as follows:

a) The total rent for the Suite was $1,100 per month and it was agreed that the Claimant and the Defendant would split it equally such that the Claimant’s portion was $550 [hereinafter the “Claimant’s Rent Portion”], which the Claimant paid to the Defendant who in turn forwarded the Claimant’s Rent Portion and the Defendant’s own rent share of $550 to the Defendant’s Parents;

b) There was a separate verbal agreement made in November 2020 whereby the Claimant and the Defendant would equally contribute an extra amount, over and above their respective shares of the rent for the Suite, as “Savings Funds”, but on the basis that if the parties ended their romantic relationship, the Claimant’s equal portion of the “Savings Funds” [hereinafter the “Claimant’s Savings Funds Portion”] would be returned to him;

c) The Claimant’s Savings Funds Portion equaled $550 per month commencing November 2020. By way of a further agreement made in May of 2021, the parties agreed that the Savings Funds “would increase to $1,450 per month, which reflected estimated future mortgage payments.” Thus each party would make a total payment of $2,000 per month and thereby the Claimant’s Saving Funds Portion increased to $1,450 per month and the Defendant was responsible for paying an equal amount towards the Savings Funds;

d) The parties agreed that the Defendant was to transfer the Savings Funds from her personal account to the Defendant’s Parents who were to hold the Savings Funds on behalf of the Claimant and the Defendant, although it was unknown to the Claimant whether this

was done by the Defendant; and

e) The Claimant says that he paid for phones and phone bills for the Defendant’s children but denies that he gifted a phone plan to the Defendant’s children and denies that he intended to pay the phone plan on an indefinite basis. Rather he says that he agreed to pay “half of phone bills” while the parties were together.

Actual Relief Being Sought By the Claimant [ 28 ] In the Application Response, the Claimant (as Respondent) also clarifies the relief actually being sought in the Action and the basis for that relief. [ 29 ] The Claimant says that in fact he is not claiming damages for the Defendant’s failure to provide notice to end his tenancy under the Residential Tenancy Act . [ 30 ] The Claimant does seek to recover by way of damages the Claimant’s Savings Funds Portion of the Savings Funds, which it is acknowledged are incorrectly described in the Notice of Claim as “extra rent”.

In reality those payments are not rent paid under a Residential Tenancy Agreement nor governed by the Residential Tenancy Act . Rather the Claimant says he is seeking to recover what are alleged to be the Claimant’s Savings Funds Portion refundable to him pursuant to the November 2020 separate oral agreement as between the Claimant and the Defendant, and not pursuant to any Residential Tenancy Agreement. [ 31 ] The Claimant (as Respondent) further submits that the Defendant (as Applicant) is the properly named Defendant because she held the Savings Funds in her personal saving account.

Case and Statutory Authorities Cited and Relied Upon by the Respondent [ 32 ] The Respondent has referred this Court to the following case authorities and statutory provisions in support of its position on this Application:

a) Bi v. Surrey (City) , supra;

b) Gill v. Posthuma , 2020 BCPC 190 ;

c) Lura v. Jazz Forest Products

(2004) Ltd., 2014 BCPC 14 ; and

d) Small Claims Act , supra, at s. 3(1) which establishes the Provincial Court’s jurisdiction for claims. Respondent’s Argument for the Court to Reject the Application for Dismissal [ 33 ] In

summary the Respondent argues that the Defendant, as the Applicant, has not met the requirements for dismissal set out in Rule 7(14)(i). [ 34 ] Furthermore the Respondent relies upon Gill v. Posthuma , at para. 31 for the proposition that this Court should consider Supreme Court Civil Rule 9-6(5) which describes the powers of the Supreme Court in a

summary judgment application. In essence the court must be satisfied that there is no genuine issue for trial. The Respondent asserts that there is such a genuine issue (or issues) for trial. [ 35 ] Similarly, the Respondent relies upon the decision in Lura v. Jazz Forest Products at paras. 11 and 12. The Respondent says that this case is not one of those clearest cases where the drastic remedy of dismissal of a claim prior to trial should be used.

Here it is submitted that there are facts which are in dispute and must be resolved at trial. [ 36 ] Thus, as I understand it, the Respondent urges this Court to dismiss the Application and to permit the Respondent to amend his pleadings to reflect the actual basis of the cause of action and the relief being sought.

Legal Framework The Purpose of the Small Claims Act set out in s. 2 [ 37 ] In considering this Application I am mindful of the guiding principle about the purpose of the Small Claims Act s. 2 : Purpose 2 (1)The purpose of this Act and the rules is to allow people who bring claims to the Provincial Court to have them resolved and to have enforcement proceedings concluded in a just, speedy, inexpensive and simple manner.

(2) Subject to this Act and the rules, in conducting a hearing the Provincial Court may make any order or give any direction it thinks necessary to achieve the purpose of this Act and the rules. The Provincial Court’s jurisdiction for claims under s. 3(1) of the Small Claims Act [ 38 ] I must also be very mindful of this Court’s statutory jurisdiction as stated in s. 3(1) of the Small Claims Act : Claims the court may hear 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 the amount that is prescribed by regulation,excluding interest and costs

(2) The Provincial Court does not have jurisdiction in a claim for libel, slander or malicious prosecution. Jurisdiction of the Provincial Court [39] The Provincial Court of British Columbia is a statutory court created under the Provincial Court Act, RSBC 1986, c. 379 [see: s.2]. [40] It has no inherent jurisdiction beyond what is expressly given to the Court or may be reasonably inferred from the Small ClaimsAct and the Small Claims Rules. That inferred jurisdiction is procedural and not substantive.

Various case authorities have held that "bynecessary implication" the Provincial Court may make certain types of procedural orders not specifically provided for in either the SmallClaims Act or the Rules. [41]

Section 3 of the Small Claims Act noted above sets out the jurisdiction of the Provincial Court insofar as the types of claims withwhich it can deal. [42] Under s. 3(1) of the Small Claims Act, the court has no express authority to grant equitable remedies under the Law and EquityAct, RSBC 1996, c. 253 but does possess the limited jurisdiction arising from necessary implication to deal with matters of procedure toensure justice is done. [43] Generally, a claim that seeks certain types of injunctive relief is beyond the jurisdiction of the Provincial Court except as noteddirectly above.

Also, a claim that seeks a declaratory order is beyond the jurisdiction of the Provincial Court, unless the order isincidental to a claim for relief in which the court has jurisdiction, such as specific performance [see: Mort and Power v. Le, 2016 BCPC287 (CanLll); [2016] B.C.J. No. 2052 at para. 67 to 70 inclusive; also see: Dalla Rosa v. Ladysmith (Town), 2017 BCPC 178 ;[2017] B.C.J.

No. 1184]. [44] The Provincial Court cannot grant a remedy that affects any interest in land since Provincial Statutes confer this jurisdiction onthe Supreme Court of British Columbia: see the Property Law Act, RSBC 1996, c. 377 at ss. 3, 13, and 35. [45] The Provincial Court does have jurisdiction to consider claims in which interests in land are at issue, insofar as those interestsrelate to a claim for debt or damages provided, however, no statute precludes consideration by the Provincial Court, and so long as theremedy does not affect title or an interest in land.

Within those limitations, it is open to the Provincial Court to assume jurisdiction; forexample, in matters involving breach of contract relating to land (see: Lou Guidi Construction Ltd. v. Fedick, [1994] B.C.J. No2409 (PC)). The Jurisdiction of the Provincial Court to Dismiss a Claim [46] The Application has been brought on prior to a Settlement Conference. The Provincial Court’s authority to dismiss the Claim atthis juncture in the proceedings has been settled for some time. Judge Lee in the Gill v.

Posthuma decision, concisely states the law atparas. 21 to 24 as follows: 21 The statutory basis for an application to dismiss a claim prior to a trial is found in Small Claims Act s. 2 and Small Claims Rule 7(14)(

i) and Rule 16(6)(o). 22 Rule 7(14)(

i) gives a judge at a settlement conference the power to dismiss a claim, counterclaim, reply or third party notice. The rulestates that a settlement conference judge may: (

i) dismiss a claim, counterclaim, reply or third party notice if, after discussion with the parties and reviewing the filed documents, ajudge determines that it (

i) is without reasonable grounds, (ii) discloses no triable issue, or (iii) is frivolous or an abuse of the court's process; 23 Caselaw also supports the authority of a Provincial Court judge to hear an application to dismiss a claim prior to or following asettlement conference. This allows for the "just, speedy, inexpensive and simple" resolution of claim as mandated by s. 2 of the SmallClaims Act.

This procedure also allows the judge to put his or her decision on the record, which may not be possible at a settlementconference. 24 Cases where the court dealt with an application to dismiss prior to trial and outside of a settlement conference include the following: • Lura v. Jazz Forest Products

(2004) Ltd., 2014 BCPC 14

• Sigurdur v. Fung and Louie, 2007 BCPC 239 • Cecil v. Holt Renfrew & Co. Ltd., 2001 BCPC 54 • Gradley v. Doig Baily McLean Greenbank & Murdoch, 2000 BCPC 25 • Szczurowski v. Van Strien, 2009 BCPC 405 • Schiller v. Northern Health Authority, 2019 BCPC 60 [47] The Application before this Court seeks a

summary determination and dismissal of the Notice of Claim. In para. 25 of Gill v.Posthuma, Judge Lee goes on to summarize the law as follows: 25 The decision Lura v. Jazz Forest Products

(2004) Ltd., 2014 BCPC 14 at para. 12, states when a

summary determination of a claimshould be used: [12]

Summary determination of a claim is a remedy which should only be used where it is clear from the facts which are not in issue, orfrom a proper application of the law, or from a combination of the two, what the result will be. While the following is not an exhaustivelist, some of the more common situations when the rule has been applied to prevent a case from proceeding to trial include: (

a) Where a claim is statute barred or precluded by a limitation period or because of a failure to give notice (Wawanesa MutualInsurance Company et. Al v. Rona Inc. and Fluidmaster Inc. 2008 BCPC 0196; Cecil v. Holt Renfrew and Weston 2001 BCPC54 , 2001 BCPC 0054; Eddy v. Vandermeys [1993] B.C.J. No. 3031 (BCPC); Zabolotniuk v. City of Vancouver [1999] B.C.J.No. 3067 (BCPC), Sigurdur v. Fung and Louie 2007 BCPC 239 ); (

b) Where the court lacks jurisdiction over the subject matter of the claim (First City Trust v. 282674 BC Ltd. (1983) (BC SC), 82 BCLR (2d) 123 (BCSC); Long v. Avis [1993] B.C.J. No. 1999 (BC Prov. Ct.); Universal Ventures Ltd. v.Gillespie [1993] B.C.J. No. 2691 (BC Prov. Ct.)); (

c) Claims against the principal of a company which should properly be brought against the company, not the individual (E.M. Plastics& Electrical Products Ltd. v. Abby Signs Ltd. and Lardeur 2009 BCPC 18 , 2009 BCPC 0018); (

d) Claims that turn on the

interpretation of a statute or regulation (Sidon v. Matsqui First Nation 2008 BCPC 103 , 2008 BCPC0103; Michell v. Emond 2007 BCPC 295 , 2007 BCPC 0295, upheld on appeal at 2008 BCSC 111 ); (

e) Claims that turn on the

interpretation of a contract (Johnson v. Lamb Properties Inc. 2008 BCPC 0193; Devon Transport Ltd. v. Shawand Oswald 2009 BCPC 3 , 2009 BCPC 0003; Biggs v. Biggs 2009 BCPC 64 , 2009 BCPC 0064); (

f) Claims brought against the wrong party; (

g) Claims brought by or against an unincorporated entity (Eco-Tourism 2010 Society v. Vancouver 2010 Bid Corp. 2005 BCPC23 ); (

h) Claims for the cost of attending small claims court (Johnson v. Lamb Properties Inc., supra); (

i) Claims against a lawyer acting on behalf of an opposing party (Pugsley v. Harrison and Cohen 2007 BCPC 370 ,2007 BCPC0370); (

j) Claims under the Personal Property Security Act (First City Trust v. 282674 BC Ltd., supra); (

k) Unsupported claims for professional negligence (Sigurder v. Fung and Louie, supra, Bossy v. Kelowna Dental Center Inc. andDeGrouchy unreported decision of Myers P.C.J., May 28, 2004, Kelowna file C61482); (l)Claims for solicitor-client costs (C.I.B.C. v. Washburn [1993] B.C.J. No. 2706 (BC Prov. Ct.), Gord Hill Log Homes Ltd. v. CancedarLog Homes (B.C.) Ltd. 2006 BCPC 480 , 2006 BCPC 0480, McGillion v. Barnett and Pique Publishing Ltd.2007 BCPC 10, 2007 BCPC 0010); (

m) Certain claims against a strata corporation (Valana v. Law 2005 BCPC 23 , 2005 BCPC 0023; Clappa v. ParkerManagement Ltd. [2003] B.C.J. No. 1980; 2003 BCPC 305 , Frechette v. Crosby Property Management Ltd. [2007] B.C.J. No.1162; 2007 BCPC 174 and Matthews v. The Owners, Strata Plan NW1874 2009 BCPC 66 , 2009 BCPC 0066; Leruyetv. Friesen et. Al 2012 BCPC 264 ); (

n) Where there has been clear abuse of process (Bank of Montreal v. Smith [1993] B.C.J. No. 2741 (BCPC)). [48] The premise that dismissal of a claim prior to trial is a drastic remedy and one that should be used only in the clearest of cases isalso well established. (See, for example: Lura v. Jazz Forest Products

(2004) Ltd., at para. 11 and Sigurdur v. Fung and Louie, 2007BCPC 239 at para. 4.) [49] In my view it follows that such a cautionary approach must be used by this Court when dealing with applications for

summarydeterminations in settlement conferences, before settlement conferences and after settlement conferences, in other words, at any stage ofthe proceedings. [50] In Gill v. Posthuma at para. 30, Judge Lee draws the analogy that an application for dismissal of a claim in the Provincial Courtis akin to an application for

summary judgment under Supreme Court Civil Rules, noting that under Rule 9-6(5) the powers of theSupreme Court in a

summary judgment application are described as follows:

(5) On hearing an application under subrule (2) or (4), the court, (

a) if satisfied that there is no genuine issue for trial with respect to a claim or defence, must pronounce judgment or dismiss the claim accordingly, (

b) if satisfied that the only genuine issue is the amount to which the claiming party is entitled, may order a trial of that issue or pronounce judgment with a reference or an accounting to determine the amount, (

c) if satisfied that the only genuine issue is a question of law, may determine the question and pronounce judgment accordingly, and (

d) may make any other order it considers will further the object of these Supreme Court Civil Rules. [ 51 ] At para. 31 of Gill v.

Posthuma , it confirms that Supreme Court Civil Rule 9-6(5) “is an appropriate description of how the Small Claims Court should also proceed when dealing with an application to dismiss a claim.” In doing so, generally an applicant “must accept for the purposes of the dismissal application that the facts in support of the claim are true”, but subject to exceptions such as “the making of outlandish claims.” [ 52 ] Therefore the court hearing such an application “is not to weigh the evidence.” [ 53 ] Reliance can also be placed upon Williams v. Simon Fraser University , 2018 BCSC 1787 especially at para. 4 .

That case was decided in the context of a motion to strike as disclosing no cause. It states the applicable test is as follows: assuming the facts in the pleading are true, it is whether it is plain and obvious that it discloses no reasonable cause of action. At the end of para. 4 of Williams v. Simon Fraser University it goes on to say that “no evidence is admissible”. Sufficiency of a Notice of Claim [ 54 ] This Application raises the question of whether or not the Claimant's Notice of Claim adequately discloses the cause of action being relied upon by the Claimant.

It also raises the question of this Court’s jurisdiction to deal with the substance matter of certain claims or to be able to grant the relief being sought. [ 55 ] A Notice of Claim in a Small Claims action prepared by an unrepresented party may rely upon what is sometimes referred to as "inelegant" pleadings as long as the opposing party is put on notice of the issues and the need to adduce relevant evidence at trial [see the Continuing Legal Education Society of British Columbia: Provincial Court Small Claims Handbook at s. 3.24 (relying on Priority Building Services v. Ali , [1999] B.C.J.

No. 2820 (Q.L) (S.C.) ]. [ 56 ] That same section, namely s. 3.24, also notes that it is necessary that the pleadings are sufficient in order that the defendant is not caught by surprise by an argument made at trial which is not disclosed in the pleadings (relying upon Kamloops Honda v. Collinge , 2000 BCSC 1686 ). Amending Filed Documents in an Action [ 57 ] Rule 8 of the Small Claims Rules permits amendments to a Notice of Claim, Reply or other document filed by a party. Rule 8 provides as follows: Any filed document may be changed

(1) Subject to subrule (1.1), anything in a notice of claim, reply or other document that has been filed by a party may be changed by that party (

a) without any permission, (

i) at any time before the settlement conference begins, or (ii) if a settlement conference will not be held, at any time before the earliest of the following: (

A) Repealed. [B.C. Reg. 267/2018, s. 9.] (

B) a trial conference under Rule 7.5; (

C) a trial under Rule 9.1 or 9.2, and (

b) with the permission of a judge (see Rule 16 (7)), at any time after that. Analysis [ 58 ] For the benefit of the parties, although I may not make mention of some of the case authorities presented to this Court and described above, I wish to assure them that I have read and considered all of these authorities in reaching my decision. [ 59 ] The Notice of Claim is significantly deficient.

I am satisfied that what the Claimant is actually seeking is not accurately nor sufficiently set out in the Notice of Claim. [ 60 ] Specifically, it mischaracterizes the Claimant’s most significant claim against the Defendant being the Extra Rent Claim. In the Claimant’s Application Response it states that this is actually a claim to recover, by way of damages, the Claimant’s Savings Funds Portion of the Savings Funds.

[ 61 ] The Notice of Claim is also deficient in providing sufficient facts to support the basis of that claim for damages. [ 62 ] Similarly within the Notice of Claim, the facts and the basis for the Cell Phone Plan Claim are inadequate. [ 63 ] That portion of the Notice of Claim which relates to the Moving Expense Claim, on its face, is a claim that is governed by the Residential Tenancy Act and therefore outside the jurisdiction of the Provincial Court.

I am mindful that in the Claimant’s submissions, the Claimant will not be pursuing the Moving Expense Claim in this Court. [ 64 ] The deficiencies, including the language used in the Notice of Claim, in contrast to the abundance of details in the Reply have permitted the Defendant to frame the purported claim of the Claimant and to thereby open the issues of the Provincial Court’s jurisdiction.

In particular it gives rise to the Defendant’s submission that the Claimant is not bringing a claim for debt or damages but rather is seeking a declaration. [ 65 ] The Defendant’s Counterclaim itself, on its face, asserts claims for matters that are also governed by the Residential Tenancy Act and are beyond this Court’s jurisdiction. Again I mindful of the Applicant’s submissions that she is prepared to abandon her claim, at the least for the unpaid rental arrears for the month of February 2022.

I am not entirely certain as to whether this intention extends to the claim for damages of $1,200 arising out of the alleged inadequate notice to abandon the Suite, but again, on its face, that claim appears to be governed by the Residential Tenancy Act . [ 66 ] I have concluded that the Notice of Claim, the Reply and the Counterclaim all need to be amended in order to properly frame the issues and to ensure that they fall within the jurisdiction of the Provincial Court as set out in s. 3(1) of the Small Claims Ac t .

I am of the view that there is a reasonable likelihood that this can be achieved based upon all of the information before me and the submissions that I have received. [ 67 ] Again, based upon all of the foregoing, I have concluded that if I do permit the Claimant to amend his Notice of Claim to properly reflect his claims as set out in the Application Response then there is a genuine issue for trial. Accordingly, I must dismiss the Application and permit the parties to amend their respective pleadings. I am satisfied that proceeding in this fashion will not unduly prejudice either of the parties.

Both parties will be spared the problem of being surprised by an argument that is not disclosed in the pleadings and to possibly avoid jurisdictional issues at a later part of the proceedings. [ 68 ] In my view I may make an order permitting the parties to amend their pleadings at this stage by relying on Rule 8 and also on Rule 16(6)(

o) which permits me to make any other order after a hearing that a judge has the power to make. I am mindful of the case authorities which have suggested that Rule 16 should be interpreted narrowly and judges should be slow to expand the application of Rule 16 beyond the specific matters listed in Rule 16(6), unless it can be demonstrated that the broad jurisdiction under that rule must be invoked if the objectives of the court in s. 2 of the Small Claims Act are to be achieved. (See: Belanger v. AT&T Canada Inc., [1994] B.C.J. No. 2792 (QL) and also Barroetavena v. Dr. Ernst J. Schmidt Inc. , [1994] B.C.J.

No. 1593 (QL) ). On this basis I will make an order permitting the amendment of all of the pleadings. [ 69 ] I have further concluded that this cautionary approach to dealing with this Application for

summary dismissal and the other orders that I have made are in keeping with the purpose of the Small Claims Act as set out in

section 2 . It will permit the parties to eventually resolve their respective claims in a just speedy, inexpensive and simple matter. Decision and Orders [ 70 ] Based upon all of the forgoing, I make the following orders arising from this Application:

a) The Defendant’s Application to a Judge filed on October 3, 2022 is dismissed but with liberty to re-apply as set out in this order.

b) The Claimant will be at liberty pursuant to Rules 8(1) and 16(6) and this order to amend the Claimant's Notice of Claim filed May 10, 2022, in order to assert a claim against the Defendant that is within the jurisdiction of the Provincial Court of British Columbia and which claim relates to the matters set forth in the Application Response, filed on March 28, 2023 by the Claimant (as Respondent). The Claimant may as he sees fit, but is not required, to also name Gary Robert Smirfitt and Carla Kathleen Smirfitt, or either of them, as defendants in this action.

The Claimant’s amended Notice of Claim must be filed in the Western Communities Court Registry no later than June 30, 2023 and immediately thereafter the Claimant will serve the Defendant and any other newly named defendants within 7 days, all of which is subject to further order or direction of this Court.

c) The Defendant is at liberty to file with the Western Communities Court Registry any necessary amended Reply, and any necessary amended Counterclaim within 21 days of service of the Amended Notice of Claim and to forthwith serve it on the Claimant within 7 day of filing, all of which is subject to further order or direction of this Court.

d) The Claimant must file his own Reply to the amended Counterclaim within 7 days of service of the Defendant’s amended Reply and Counterclaim, all of which is subject to further order or direction of this Court.

e) Any other newly named defendant in the amended Notice of Claim must file their Reply, Counterclaim and any other form of pleadings within 21 days of having been served with the amended Notice of Claim, together with a filed copy of the order contained herein, which permits, inter alia , other parties to be joined as defendants, all of which is subject to further order or direction of this Court.

f) The Claimant and the Defendant must each file any required reply to any counterclaim or other document served upon them by any other newly named defendant within 7 days of service by any other named defendant.

g) In the event that the Claimant shall fail to file and serve an amended Notice of Claim upon the Defendant within the time limits set out in this order then the Defendant may renew the Defendant's application for

summary dismissal of the existing claim against the Defendant as set out in the Notice of Claim, filed on May 10, 2022, on such grounds as the Defendant may then advance, including

without limitation, the Claimant’s failure to abide by the terms of this order, all of which is subject to further order or direction of this Court.

h) The Honourable Judge J.P. MacCarthy is not seized of this matter.

i) The Claimant’s solicitors will be responsible for the preparation of the form of this order and the signatures of both parties legal counsel approving the form of this order is required, provided however that the approval and filing of the form of the order must be completed within 10 days of the filing of these Reasons for Judgment in the Western Communities Court Registry, all of which is subject to further order or direction of this Court. __________________________________ The Honourable Judge J.P. MacCarthy Provincial Court of British Columbia