Pereira v. Civil Resolution Tribunal, 2019 BCPC 58

Citation: Pereira v. Civil Resolution Tribunal 2019 BCPC 58 Date: 20190328 File Nos: 180552, 180503 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CORINNE PEREIRA CLAIMANT AND: CIVIL RESOLUTION TRIBUNAL AND HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L MROZINSKI Appearing on her own behalf: C. Pereira Counsel for the Defendants: T. Mason Place of Hearing: Victoria , B.C. Date of Hearing: March 19, 2019 Date of Judgment: March 28, 2019 I. Introduction [ 1 ] This is an application pursuant to Rule 7(1)(

i) of the Small Claims Rules for an order in this settlement conference striking the claimant’s two small claims actions on the grounds that neither discloses a cause of action and/or that they constitute an abuse of process. The application is brought by both defendants, Her Majesty the Queen in Right of the Province of British Columbia and the Civil Resolution Tribunal (“CRT”) (referred to herein together as the “Province”).

[ 2 ] The claimant, Corinne Pereira, opposes the Province’s application. She urges this Court to allow her claims (or at least one of them) to proceed to trial bearing in mind her fundamental grievance which she maintains is a denial of access to justice by the CRT. II. The Issue [ 3 ] The issue in this application is straightforward enough: is it plain and obvious that neither of these claims disclose a triable issue?

Alternatively, is it clear that one or both constitute an abuse of process such that they should be struck out at the settlement conference stage of this proceeding? [ 4 ] At the outset, however, it must be noted that what is formally before me in this settlement conference is Ms. Pereira’s claim under File No. 180552. This claim is for damages in the amount of $35,000 for what is alleged to be a bad faith exercise of statutory authority by CRT members Julie Gibson and Kate Campbell. Ms. Pereira takes issue firstly with a decision by CRT member Gibson dated July 9, 2018, in which Ms.

Gibson ruled that a claim application filed by Ms. Pereira was res judicata having been subsumed in an earlier order of CRT member Jordanna Cytrynbaum (a decision I will refer to hereafter as “Decision No. 1”). Ms. Pereira maintains the decision of Ms. Gibson (a decision I will refer to hereafter as “Decision No. 2”) was made in bad faith and for an improper purpose. Within a day of the release of Decision No. 2, Ms. Pereira filed a near identical dispute, but for the addition of some strong language. In an order dated July 11, 2018, CRT member Kate Campbell refused to resolve that dispute or to refund Ms.

Pereira’s filing fees (a decision I will refer to hereafter as “Decision No. 3”). Decision No. 3 is also alleged by Ms. Pereira to have been made in bad faith, and for an improper purpose. [ 5 ] In addition to this claim (File No. 180552), Ms. Pereira has filed another small claims action seeking damages for many of the same decisions made by the CRT (File No. 180503). On December 3, 2018, Ms.

Pereira filed an amended notice of claim in this court on File No. 180503 seeking damages in the amount of $35,000 with regard to Decisions No. 2 and 3, but with particular emphasis on CRT member Cytrynbaum’s Decision No. 1. This claim includes other allegations concerning Ms. Pereira’s alleged high handed treatment at the hands of the CRT. The Crown applies for an order striking this claim on the grounds it is no more than a variation of the claim in File No. 180552 and as such constitutes an abuse of this court’s process. The Crown also submits it is plain and obvious that Ms.

Pereira’s claim involving Decision No. 1 cannot succeed and ought to be struck on that ground as well. [ 6 ] Although the Crown’s application to strike was brought in the settlement conference scheduled for File No. 180552, clearly Ms. Pereira’s claim having the File No. 180503 is related, and ought to be addressed. File No. 180503 is referred to in the Crown’s written submissions. The application does not, I find, take Ms. Pereira by surprise. Moreover, it is neither a good use of Ms.

Pereira’s time nor the court’s time to defer consideration of File No. 180503 given its inextricable link to small claims File No. 180522. I will address both files in these reasons. III. Background [ 7 ] Both of Ms. Pereira’s claims in this court relate to various disputes or claim applications brought by her before the CRT for damages arising out of an alleged infringement of her copyright and/or moral rights. Ms.

Pereira commenced the CRT process by filing a complaint application for damages arising out of the alleged use and misuse of creative works designed by her while she was in the employ of the Hirsh Creek Golf and Winter Club (the “Club”). [ 8 ] In or around July, 2015, Ms. Pereira and an associate were hired (and in the case of Ms. Pereira, re-hired) to manage the Club’s kitchen and dining room. Ms. Pereira was very specific in her submissions to the CRT that her associate was the manager but that she worked with him as his partner to manage the kitchen and dining room.

Only one other person was alleged to have been senior or “above” the two in the Club’s chain of command. [ 9 ] In or around late May, 2017, the Club hired a general manager, Mr. Winston Michell. Ms. Pereira found it difficult, if not impossible, to work with Mr. Michell. She left her job at the Club within weeks of Mr. Michell’s hiring. However, while employed at the Club, Ms. Pereira had designed menus for the dining room utilizing her graphic design skills, and incorporating her own photographs. Ms.

Pereira maintained and continues to maintain that this work was done on her own time, and was in no way connected to her employment duties at the Club. [ 10 ] Ms. Pereira writes in her submission to the CRT that upon her departure she allowed the Club to use her menus for up to three weeks. After that, Ms. Pereira expected the Club to design its own menus and to discontinue its use of her work. This did not happen, and Ms. Pereira filed for unofficial copyright on June 12, 2017. She sent cease and desist letters to the Club and subsequently found herself banned from the premises. Ms.

Pereira advised the CRT in writing that when the Club became aware that she had “officially registered and without a doubt was the owner of the copyrights it became their legal obligation to rectify it with the register of copyrights if they disagreed and they did not.” What followed was a demand letter from Ms. Pereira to the Club ordering it to cease and desist from using her meus and a request for a payment in the amount of $1,850 for the unauthorized use of her designs. [ 11 ] Ms. Pereira submitted an application to the CRT to commence a dispute against the Club, and against Mr.

Michell personally, for the use of her works and for punitive damages. I was not provided with a copy of Ms. Pereira’s first claim application in regard to this first decision of the CRT. I do however have lengthy submissions from Ms. Pereira, which I have referenced. Those appear to be submissions in the first instance, though they also reference various documents listed in the reply submissions filed by the Club and Mr. Michell. I have been provided with those reply submissions of the Club and with Ms. Pereira’s more fulsome response to the Club’s reply submissions.

It is quite clear from these materials that Ms. Pereira raised the issue not only of her copyright to the menus, but also her claim that the use by the Club of the menus infringed her moral rights “by way of distortion, association, and not allowing me to make sure the integrity of my work was upheld…” [ 12 ] Later in her materials, in an email at Tab 10 of the materials presented in this settlement conference, Ms. Pereira complained to the CRT that CRT member Cytrynbaum missed the issue of her moral rights. She writes “the CRT dispute notice…asks for a

summary of the claim and says you will have a chance to provide more detail. In the dispute notice I filled out I simply said ‘unauthorized use of my creative works’. This can mean moral rights and copyrights. In my submission I was explicit and referred to my moral rights even more than my copyrights.”

[ 13 ] I find I agree with Ms. Pereira that the issues of both her moral rights and copyright infringements were before the CRT in that first dispute. [ 14 ] The CRT issued its reasons for decision in the dispute on April 17, 2018 (Decision No. 1). In it, CRT member Cytrynbaum ruled that Ms. Pereira’s work designing the menus fell within the scope of her duties and that she did the work for the use and benefit of her employer. As such, the Club was presumed to be the first owner of the copyright to the menus. The member dismissed the claim against Mr.

Michell personally, finding no evidence to suggest he was working in his personal capacity, or that he did anything improper or that there was a basis for the claim against him personally. [ 15 ] In response to Decision No. 1, Ms. Pereira filed a second claim application before the CRT. The application, at Tab 5 of Ms. Pereira’s materials is not dated, though the date May 27, 2018, is handwritten at the top of the document. In this second claim, Ms. Pereira sought damages in the amount of $5,000 from Mr. Michell personally for infringement of her moral rights.

Again, it was in relation to the use and/or misuse of her menus. [ 16 ] This second complaint was quickly followed up by email correspondence to the CRT from Ms. Pereira. It is readily apparent that Ms. Pereira’s firm view was that her claim of an infringement of her moral rights by Mr. Michell was missed in Decision No. 1. Ms. Pereira wrote in an email found at Tab 6 of her materials that “I can only infer based on her written decision that she [the CRT member in Decision No. 1] was only speaking of copyright infringement”. [ 17 ] Ms.

Pereira forwarded more information to the CRT including an excerpt from the Government of Canada’s website on moral rights. [ 18 ] On July 9, 2018, the CRT ruled on Ms. Pereira’s second claim application (Decision No. 2). It acknowledged Ms. Pereira’s argument that the first CRT decision (Decision No. 1) did not address her claim to moral rights associated with the menu designs. The member then wrote as follows at paragraphs 12 and 13: 12. Here, the basis of the claim is the same as in the Hirsch Creek decision, namely a breach of the Copyright Act , albeit on a narrower basis of moral rights infringement only.

Moral rights are addressed in the Copyright Act . An applicant cannot bring a broad claim for any breach of the Copyright Act and then, unhappy with the decision, seek to bring another claim against the same respondent, arising out of the same events, and argue that it is a new claim because it focusses on one narrow aspect of the already determined claim. 13. If I am incorrect about the moral rights issue, this dispute is still res judicata and has no reasonable chance of success because the tribunal in the Hirsch Creek decision considered whether there was any wrongdoing on Mr.

Michell’s part regarding the menu designs and dismissed the claim against him personally. [ 19 ] This decision, which the Province aptly refers to as the “Refusal Decision” in its submissions was followed by at least three other claim applications, all involving the claim by Ms. Pereira that Mr. Michell infringed her moral rights when he, among other things, continued to use her designs in association with the Club, and utilized them in a manner that distorted them. The first of these last three claim applications was the subject of a

Summary Decision dated July 11, 2018, days after the issuance of Decision No. 2. There the CRT member wrote that “the applicant’s claims have already been decided and are therefore res judicata ” (Decision No. 3). [ 20 ] This was followed up by Ms. Pereira with yet another claim application, again seeking damages against Mr. Michell for infringement of her moral rights. It is at this juncture that the CRT responds to Ms. Pereira largely by email; the substance, at least initially, focussing on why it would now refuse to resolve Ms. Pereira’s claim given its earlier reasons.

Additionally, the CRT indicated by July 19, 2018, that it would not refund Ms. Pereira’s filing fees. [ 21 ] By her own admission, Ms. Pereira became angry by these refusals. She was, she writes, emotionally upset. Ms. Pereira’s own materials include numerous clearly abusive emails addressed to CRT members and staff. Ms. Pereira swore frequently at CRT members and staff in her emails; she charged they were stupid, unethical, that they cared little about society, that they were hypocritical and a disgrace to the CRT. Still, the record before me indicates that CRT members always strove to address Ms.

Pereira respectfully while at the same time urging her to adopt a calmer tone and to proceed with her matter in the Provincial Court. Ms. Pereira in turn wrote in an email dated July 9, 2018, that the CRT was never going to be done with her until it acknowledged that Ms. Cytrynbaum did not consider her moral rights claim in Decision No. 1. [ 22 ] In her submissions on this application Ms.

Pereira admits at paragraph 32 of her argument entitled “Opportunity Lost” that her emails are “candid, in the moment, objective evidence of the emotional and mental stress the CRT was inflicting on me through their actions.” [ 23 ] After several refusals to consider each of her other claim applications, Ms. Pereira filed the two small claims actions at issue herein. [ 24 ] There can be no question that the filing of these two claims in this court each involving Ms. Pereira’s dispute with the CRT is itself an abuse of process.

Moreover, it is beyond doubt that allegations of a breach of procedural fairness and errors of decision making do not constitute any actionable damages claim. The remedy for the various complaints in File No. 180503 is, as the Province submits, an application for judicial review. [ 25 ] Still, Ms. Pereira’s small claim’s action, File No. 180552, is one of bad faith. This was fleshed out in the Settlement Conference. Among other things, Ms. Pereira’s large, 37 tab, Volume of Documents makes it clear; this is a claim for misfeasance of public office, even though that is not explicitly pled. [ 26 ] Ms.

Pereira iterated that her claim is fundamentally one of a denial of access to justice: that the issue of the infringement of her moral rights was not, she maintains, decided by Ms. Cytrynbaum, and that she is entitled to a decision on that point from the CRT. Ms. Pereira stated both at the settlement conference and in her written submissions on this application that while Ms. Cytrynbaum must have erred in not deciding the issue of her moral rights, both Ms. Gibson and Ms. Campbell exercised their statutory powers and denied her a

reconsideration for an improper purpose. That improper purpose being to shield Ms. Cytrynbaum and the whole of the CRT from thepublic ignominy that would surely follow if the alleged errors of Decision No. 1 were to become widely known at that critical juncture inthe life of the CRT. [27] It is against this backdrop that the Province seeks an order dismissing this claim, and the claim against the CRT in File No.180503. IV. Grounds to Strike [28] The Province brings this application at the settlement conference stage of these proceedings pursuant to Rule 7(14)(

i) of theSmall Claims Rules. Rule 7(14)(

i) gives a settlement conference judge jurisdiction to dismiss a claim if after an discussion with theparties and a review of the filed documents, the judge determines that the claim: (

a) is without reasonable grounds; (

b) discloses no triable issue; or (

c) is frivolous or an abuse of the court’s process. [29] In partial reply, Ms. Pereira urges this court to bear in mind the injunction of McLachlan C.J.C. regarding applications to strike.In an excerpt from paragraph 21 of R. v. Imperial Tobacco, 2011 SCC 42 , 2011 3 S.C.R. 45, Justice McLachlan, recalling theevolution of the common law in seminal cases such as Donoghue v. Stevenson, (FOREP), [1932] A.C. 562 and HedleyByrne & Co. v. Heller & Partners, Ltd., [1963] 2 All E.R. (575) (H.L.), notes that a claim should not be struck solely on the grounds thelaw has not yet recognized a particular cause of action.

Rather, Justice McLachlan writes: “(T)he court must ask whether, assuming thefacts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side ofpermitting a novel but arguable claim to proceed to trial.” [30] Here there is no novel claim; rather, this is claim for damages arising out of alleged misfeasance of public office by severalstatutory decision makers who have refused to adjudicate Ms.

Pereira’s multiple claim applications. [31] In considering whether there is any chance of success of the claim for damages for misfeasance of public office, it is necessaryto consider the test for misfeasance. That is set out in Odhavji Estate v. Woodhouse, 2003 SCC 69 , [2003] 3 S.C.R. 263, atparagraph 25 as follows: …Canadian courts also have made a deliberate unlawful act a focal point of the inquiry. In Alberta (Minister of Public Works, Supplyand Services) v. Nilsson (1999), 70 Alta.

L.R. (3d) 267, 1999 ABQB 440, at para. 108, the Court of Queen’s Bench stated that theessential question to be determined is whether there has been deliberate misconduct on the part of a public official. Deliberatemisconduct, on this view, consists of: (

i) an intentional illegal act; and (ii) an intent to harm an individual or class of individuals. See alsoUni-Jet Industrial Pipe Ltd. v. Canada (Attorney General) (2001), 156 Man. R. (2d) 14, 2001 MBCA 40, in which Kroft J.A. adoptedthe same test.

In Powder Mountain Resorts, supra, Newbury J.A. described the tort in similar terms, at para. 7: . . . it may, I think, now be accepted that the tort of abuse of public office will be made out in Canada where a public official is showneither to have exercised power for the specific purpose of injuring the plaintiff (i.e., to have acted in “bad faith in the sense of theexercise of public power for an improper or ulterior motive”) or to have acted “unlawfully with a mind of reckless indifference to theillegality of his act” and to the probability of injury to the plaintiff. (See Lord Steyn in Three Rivers, at [1231].) Thus there remains whatin theory at least is a clear line between this tort on the one hand, and what on the other hand may be called negligent excess of power —i.e.,

an act committed without knowledge of (or subjective recklessness as to) its unlawfulness and the probable consequences for theplaintiff. [Emphasis in original.] Under this view, the ambit of the tort is limited not by the requirement that the defendant must have been engaged in a particular type ofunlawful conduct, but by the requirement that the unlawful conduct must have been deliberate and the defendant must have been awarethat the unlawful conduct was likely to harm the plaintiff. [32] As the Court in Rain Coast Water Corp v.

Her Majesty the Queen in Right of the Province of British Columbia, 2016 BCSC845, at paragraph 155, Three Rivers has been accepted as the test in Canadian law for misfeasance. [33] At the outset it bears noting that this test describes an intentional tort. That fact has immediate implications for Ms. Pereira’sclaim involving CRT member Cytrynbaum in particular in File No. 180503. Nothing in that claim discloses an intentional tort. Rather,the allegations are that the CRT member breached the rules of procedural fairness by failing to consider a matter, or at least providingreasons in regard to the matter.

Other allegations in this claim include the alleged high handed conduct of the CRT. Still, there is nothingin this claim, or in the nature of this claim, approaching the intentional tort of misfeasance of public office. [34] Ms. Pereira’s other claim in this court, under File No. 180552, does allege bad faith and I accept it could be construed asincluding an allegation of misfeasance of public office. The claim, as I have discussed earlier in these reasons, relates to what I havereferred to in these reasons as Decision No. 2 and Decision No. 3.

I propose to deal with each of these decisions separately for thepurposes of this application to strike. [35] In Decision No. 2, CRT member Gibson held that Ms. Pereira’s claim for damages against Mr. Michell personally forinfringement of her moral rights to her work was res judicata given CRT member Crtrynbaum’s Decision No. 1. Ms. Gibson also wrotethat Ms. Pereira could not bring a broad claim for a breach of the Copyright Act and then, dissatisfied with that decision, bring anothernarrower, more focused claim. Ms.

Gibson held that even if she were wrong about that, the dispute was nonetheless res judicata. [36] I mention this part of Ms. Gibson’s reasons only because Ms. Pereira is so convinced the two concepts are inherentlyinconsistent and cannot stand. While little turns on this, I acknowledge Ms. Pereira’s strong feelings on this point and I find I agree that

Ms. Pereira did not bring a narrow case before the CRT: her case included the issue of her moral rights. It is for that reason, among others, that I find the matter is res judicata as CRT member Gibson held at paragraph 13 of Decision No. 2. [ 37 ] I am convinced for the reasons given at paragraph 13 of Decision No. 2 that the complaint filed by Ms. Pereira seeking damages against Mr. Michell personally for infringement of her moral rights was rendered res judicata by Decision No. 1. Clearly CRT member Cytrynbaum had before her the question of Mr. Michell’s alleged personal wrongdoings in relation to Ms.

Pereira’s work, including an alleged breach of her moral rights, and dismissed that claim. The matter was then res judicata . It was entirely subsumed in the order CRT member Cytrynbaum (Decision No. 1). As for the lack of reasons on that point, that is, as noted, a matter for judicial review. [ 38 ] In regard to Decision No. 3, wherein CRT member Campbell refused to resolve a dispute that was nearly identical to the dispute that was the subject of Decision No. 2 but for the addition of some foul language, I find that decision too was entirely correct.

I find there is no possibility a trial court would find an improper exercise of statutory power in regard to this decision made only two days after the release of Decision No. 2. It follows that any of the subsequent decisions by the CRT refusing to resolve the identical, yet increasingly angry disputes filed by Ms. Pereira are also correct. In the circumstances, given the record of abuse directed at the CRT by Ms.

Pereira, and its consideration of her dispute notices, I see no prospect that any court would find the decision to refuse to refund her filing fees an act of abuse of a statutory power. [ 39 ] I am, for the reasons given, convinced that there is no possibility Ms. Pereira will succeed in the argument that CRT member Gibson’s ruling that the claim against Mr. Michell personally was res judicata constitutes an improper or unlawful exercise of statutory power.

At a minimum, the tort of misfeasance of public office requires proof of the unlawful exercise of statutory power, including the exercise of a statutory power for an improper purpose. There is in this decision no basis for this allegation. I find both Decision No.’s 2 and 3 to be manifestly correct. There is no possibility Ms. Pereira will succeed in the claim that these decisions constitute an abuse or misfeasance of public office. [ 40 ] CRT member Cytrynbaum’s decision (Decision No. 1) may or may not be correct. At best, as alleged, it may have benefited from more fulsome reasons.

There may, in addition, be errors of procedural fairness. None of these matters give rise to a cause of action in tort. I find there was ample basis for the effective dismissal of Ms. Pereira’s subsequent claim applications on the grounds of res judicata and ultimately abuse of process. Again, there is no basis on which any court would or could find a tort of misfeasance of public office in regard to Decision No. 1. [ 41 ] To put it another way, as a general matter, there is no possibility of a finding of bad faith in any of the decisions of the CRT in respect of Ms. Pereira’s many claim applications.

As such, given the CRT member’s immunity from civil liability pursuant to s. 84 of the Civil Resolution Tribunal Act , there is no chance either of these two claims will succeed at trial. [ 42 ] Though it is unnecessary to address this next submission of the Province given my findings above, I will note firstly that even if Decisions No. 2 and 3 were in error, it would not follow the CRT members engaged in misfeasance of public office. I find I agree with the Crown that Ms. Pereira’s theory regarding the alleged motivation of the CRT members is pure speculation.

There are no facts capable of supporting such a claim and for that reason alone small claims File No. 180552 must be dismissed. V. Alternative Remedy [ 43 ] As Ms. Pereira well knows, she does have a remedy to her main concern: that being her claim for an infringement of her copyright and moral rights to her work. As the Province’s materials disclose, the CRT has issued a Certificate of Completion. The Province submits further that Ms. Pereira has now filed a small claims action against her former employer in the Terrace Registry, File No. 20158. It is open to Ms.

Pereira to pursue her claim for damages in relation to her work in this court. It is now not open to Ms. Pereira to pursue a claim in damages against the Province for the decisions made by the CRT. VI. Conclusion [ 44 ] The small claims actions at issue herein concern Ms. Pereira’s claim that her fundamental right to access to justice has been infringed by the CRT which refuses to acknowledge an alleged error in Decision No. 1, and which refuses to resolve her subsequent claims intended to address this alleged error. This court can do no more than re-iterate what Ms.

Pereira has been told many times: if an applicant is dissatisfied with a decision of the CRT, the applicant may bring the matter in the Provincial Small Claims court and the matter will proceed as a trial de novo . There is no prejudice other than the forfeiture of the CRT’s filing fees. There is in law no fundamental right to access the CRT. There is certainly no right to demand reasons or resolutions as has been done in this case. [ 45 ] For all these reasons, the Crown’s application to strike both of Ms. Pereira’s small claims actions filed in this Registry is granted.

BY THE COURT ______________________________________________ The Honourable Judge L. Mrozinski