City Water v. The Great Canadian Oil Change Ltd. Date:, 2011 BCPC 236

Citation: City Water v. The Great Canadian Oil Change Ltd. Date: 20110401 2011 BCPC 0236 File No: 67679 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CITY WATER INTERNATIONAL INC. CLAIMANT AND: THE GREAT CANADIAN OIL CHANGE LTD. et al DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE P.D.

GULBRANSEN Date of Hearing: No Hearing was held Date of Judgment: April 1, 2011 A corrigendum was released by the Court on September 14, 2011; the corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] A Judge dismissed the claimant's action because no one appeared on its behalf at the settlement conference on March 14, 2011. The Judge did not know that the claimant, whose office is located in Ontario, had applied to appear at the conference by telephone.

The claimant had faxed a document to the Registry on the morning of March 14, making a request that it be permitted to participate in the conference by telephone. That document had not been put in the file by the time the settlement conference was to start. [ 2 ] The manager of the claimant's legal department has sent a letter, outlining what happened and requesting that the order of dismissal be set aside. [ 3 ] In most circumstances where the claimant's case has been dismissed for failing to attend a settlement conference, the claimant must appear before a Judge to have the dismissal set aside.

The applicant must also file an affidavit explaining the non-attendance and serve a copy of that document on the defendant. The court must notify the claimant and the defendant of the date set for the application where both parties may argue the merits of that application. [ 4 ] To make the applicant or the defendant in this case go through such a process would be quite unfair. The claimant actually made the request to appear by telephone. There is no doubt that the request would have been granted.

The reason for the claimant not appearing at the conference was that there was a mistake made by the court registry. (The fax was sent on a Monday. It was amongst a large number of Informations which had been faxed to the Registry. These Informations are related to persons who had been arrested over the weekend. It is likely that the claimant's faxed request would have been put in the file if it had been sent a few days earlier.) [ 5 ] S. 2 (1) of the Small Claims Act declares that its purpose is to allow litigants to have their cases resolved “...in a just, speedy, inexpensive and simple manner”.

Section 2 (2) of the Act permits the court to “... make any order or give any direction it thinks necessary to achieve the purpose of this Act or the rules”.

[ 6 ] There is no question that the claimant would have been granted permission to participate in the settlement conference by telephone. There is no question that the claimant acted in good faith and intended to participate in the conference.

In these circumstances, any judge who heard a formal application to set aside the dismissal would grant the application. [ 7 ] To make the claimant go through the formal application process and to make the defendant become involved as well, would make the process in this case slower, more complex and more expensive. [ 8 ] Under the broad discretion granted to the court under section 2 (2) of the Small Claims Act , I direct that the claimant's application may proceed without the formal proceedings that would normally apply.

I direct that the order dismissing the claim be set aside and the claim be reinstated. [ 9 ] I further order that another settlement conference be set and that the claimant may participate by telephone at a phone number to be supplied by the claimant. ________________________________________________ The Honourable Administrative Judge P. D.

Gulbransen Provincial Court of British Columbia CORRIGENDUM – Released September 14, 2011 [1] This corrigendum to my Ruling on Application issued on April 1, 2011, is to clarify and correct paragraphs [1] and [6] of those reasons. [2] The last sentence in paragraph [1] should read: That document had not been put in the file by the time the settlement conference was to start. [3] Paragraph [6] should read: There is no question that the claimant would have been granted permission to participate in the settlement conference by telephone.

There is no question that the claimant acted in good faith and intended to participate in the conference. In these circumstances, any judge who heard a formal application to set aside the dismissal would grant the application.