Shurvell v. Fournier Date:, 2011 BCPC 342

Citation: Shurvell v. Fournier Date: 20111205 2011 BCPC 0342 File Nos.: 38915; 38916 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: WILLIAM EARLE SHURVELL CLAIMANT AND: AMANDA MARIE FOURNIER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: Mr. W. Shurvell Place of Hearing: Kamloops , B.C. Date of Hearing: November 28, 2011 Date of Judgment: December 5, 2011 [ 1 ] Mr. Shurvell has brought an application to substitutionally serve Amanda Marie Fournier with a Summons to a Payment Hearing because he has been unable to effect personal service.

He tried to serve Ms. Fournier personally with the Summons and was unsuccessful. He then hired North Central Bailiffs to serve the Summons to no success. Finally, he retained I.R.I.S.S. Security Solutions to locate Ms. Fournier. [ 2 ] Ms. Fournier gave a forwarding address to Mr. Shurvell care of her mother, Kelly Sherwood, at 965 Norview Road in Kamloops. This is the last known address that has been disclosed through any source. Mr. Shurvell said that when he attempted to serve the Summons to a Payment Hearing, he did not knock on the door but simply waited outside to see if Ms. Fournier would come out.

This is because his last encounter with Ms. Sherwood was quite unpleasant. When Mr. Shurvell first served Ms. Fournier with the residential tenancy proceedings, Ms. Sherwood signed the registered mail for Ms. Fournier, but all further mailings have been returned unclaimed. His evidence at this hearing was that he instructed the bailiff likewise and did not believe the bailiff knocked on the door. I directed Mr.

Shurvell to provide an Affidavit of Attempted Service from the bailiff service. [ 3 ] A Certificate of Attempted Service was filed by the Donna Jensen which sets out that she attempted to serve Amanda Fournier at 965 Norview Road, Kamloops, BC on September 20, 23 and 27, 2011 by knocking on the door at the address and by sitting out front of the address waiting to see if anyone left or entered the residence. This Certificate of Attempted Service further states that Ms. Jensen believes the Defendant resides at the address and is evading service.

The court required an Affidavit under oath setting out the specifics of the attempts to effect service. The Certificate is not under oath. It does not set out the times that service was attempted. It does not state whether anyone did in fact enter or leave the residence while she waited. While that may be safely assumed because she does not state that anyone did come and go, it is inadequate on such an application which could potentially have such harsh consequences if Ms. Fournier does not attend court. Furthermore, while it may well be that Ms.

Fournier lives at the Norview Road address, there is no reason stated in the Certificate why Ms. Jensen believes the Defendant resides there or why she believes the Defendant is evading service. I also note the document purports to be signed on December 30, 2011. It was filed on December 2, 2011. This appears to be a typographical error. [ 4 ] Rule 18(12)(

b) provides that documents that are notices other than a Notice of Claim may be served by ordinary mail to a person’s address unless the document is, among other things, a Summons to a Payment Hearing. Rule 12(7) provides that the Summons

must be served by leaving it with the person at least seven days before the date of the Payment Hearing. The reason for requiring personal service is because there are penal consequences for failing to attend the payment hearing.

In a 1994 decision, Stansfield J., as he then was, found that where the court is satisfied a debtor is intentionally avoiding the jurisdiction of the court and frustrating the process of the court to the extent that the administration of justice is liable to be brought into disrepute, the court had jurisdiction to make an order for substitutional service pursuant to s. 2 of the Small Claims Act and Rule 17(4).

To do so, the court must be satisfied there is an overwhelming likelihood that the debtor who avoided the process of the court will receive de facto notice of the Payment Hearing and be on notice that his or her liberty will be in jeopardy in the event of non-appearance: Ho v. Porter , [1994] BCJ No. 1574 (QL) (Prov Court) , Stansfield J. [ 5 ] In that case, the court ordered a copy of the Summons, the Reasons and the Order be delivered to the debtor by regular mail and by double registered mail.

He further ordered that a registry staff was to telephone the debtor and state to any adult person answering in person or to leave on the answering machine a message that the debtor was required by Order to attend court.

The debtor was also to be advised that failure to attend would likely result in a warrant being issued for his arrest. [ 6 ] Judge Stansfield found jurisdiction from s. 2 of the Small Claims Act which states the purpose of the Act is to allow people to bring claims and have them concluded in a just, speedy, inexpensive and simple manner; and Rule 17(4) which permits a judge to impose any condition or give any direction that the judge thinks is fair.

In balancing the prejudice and risk to the debtor, the court noted that a warrant arising from failure to appear pursuant to substitutional service would result in a notice of arrest, giving the debtor an opportunity to attend court voluntarily before any actual arrest takes place. This case was followed by this court in Martin v.

Universal Cleaning Equipment Inc. 2005 BCPC 234 . [ 7 ] I am satisfied that I have jurisdiction in the appropriate circumstances to order substitutional service of a Summons to a Payment Hearing. [ 8 ] While there is clearly jurisdiction to make the order sought, such an order should only be made for substitutional service of a Summons to a Payment Hearing in the clearest of cases. The Certificate of Attempted Service does not provide the court with sufficient evidence that attempts to serve Ms. Fournier were made at appropriate times of the day or that any note or card was left at the address for Ms.

Fournier to contact the bailiff for service of those documents. While it appears that Ms. Fournier is evading service of the documents, where she risks arrest for failing to appear, a substitutional order should only be made upon the court being satisfied that proper attempts were made. [ 9 ] I am dismissing the application for substituted service of the Summons to a Payment Hearing but give liberty to Mr. Shurvell to reapply when the proper attempts to serve have been made and a proper Affidavit of Service has been filed supporting substitutional service. _____________________ S. D. Frame Provincial Court Judge