Gardiner v. Prasad, 2024 BCPC 19

Citation: Gardiner v. Prasad 2024 BCPC 19 Date: 20240206 File No: C-19675 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: NORMA CAROL GARDINER CLAIMANT AND: REGINALD PRASAD DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE N. PREOVOLOS Appearing on her own behalf: N. Gardiner Appearing on his own behalf: R. Prasad Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: February 2, 2024 Date of Judgment: February 6, 2024 Introduction [ 1 ] The claimant, Norma Gardiner, rented a house from the defendant, Reginald Prasad, in Port Coquitlam from March 1, 2018 to October 31, 2020. Ms. Gardiner alleges that water ingress caused by improper maintenance resulted in the formation of mould inside the house, damaging furniture and clothing and causing her loss of quiet enjoyment. She claims over $20,000 in damages, including $6,750 for a six-month rent reduction and $2,500 in aggravated damages. [ 2 ] I had to infer the nature of Ms.

Gardiner’s claim from materials filed with the Court by her and Mr. Prasad before trial, including decisions of the Residential Tenancy Branch (RTB) and a will-say statement. The Notice of Claim was skeletal and did not specifically plead negligence or breaches of the Residential Tenancy Act , SBC 2002, c. 78 ( RTA ). [ 3 ] Mr. Prasad argues that the matters in dispute are res judicata , having already been decided after a hearing before the RTB, and denies Ms. Gardiner’s allegations in any event.

Issues [ 4 ] The parties did not have counsel when they attended Court for trial on February 2, 2024 and had not turned their minds to whether the Court has jurisdiction to hear the claim. I ruled that the issue of jurisdiction should be decided before evidence is called and reserved judgment. [ 5 ] While preparing these Reasons, I also considered whether the claim is res judicata or barred by either the Limitation Act , SBC 2012, c. 13 ( Limitation Act ) or the RTA . [ 6 ] The issues before me are therefore: 1. Is the claim res judicata , i.e., barred because it was decided by the RTB? 2.

Is the claim barred by the Limitation Act or the RTA due to the passage of time? 3. Does the Court have jurisdiction to hear the claim? Evidence [ 7 ] I have reviewed and relied upon the following: 1. RTB decision dated September 28, 2020 (RTB #1); 2. RTB decision dated March 30, 2021 (RTB #2); 3. RTB decision dated April 15, 2021 (RTB #2A); 4. RTB decision dated February 15, 2023 (RTB #3); 5. Will-say statement outlining the proposed evidence of Kristin Gardiner (filed on January 8, 2024); 6.

Various photographs filed with the Court and accompanied by an index stamped by the Court on December 29, 2023 and January 2, 2024. Background [ 8 ] The parties appeared before the RTB for hearings on four separate applications, and the RTB released RTB #1, RTB #2, RTB #2A and RTB #3 following the hearings. The only relevant decisions for my purposes are RTB #1 and RTB #3. [ 9 ] RTB #1 is the RTB’s decision on an application by Ms. Gardiner heard on September 28, 2020. The application was for compensation for losses, a rent reduction, and an order for repairs, and the monetary claims totalled $30,100.

The claim, which was not described in more detail in RTB #1, was withdrawn because of an issue regarding service of Ms. Gardiner’s application materials on Mr. Prasad. She was invited to resubmit her application if she wished. [ 10 ] RTB #3 is the RTB’s decision on an application by Ms. Gardiner heard on January 17, 2023 for damages relating to mould in the rental property. The amount claimed, excluding the RTB’s $100 filing fee, was $19,975, which is identical to the amount claimed in the Notice of Claim.

Similarly, the specific items and amounts claimed are identical to those in the Notice of Claim – mattress, couch, three leather jackets, 25 pieces of clothing, family heirlooms, leather purse, six month rent reduction, loss of quiet enjoyment, and aggravated damages – except that the Notice of Claim refers to an unspecified number of leather jackets while RTB #3 refers to three. [ 11 ] The issue in RTB #3 was whether Ms. Gardiner is “entitled to a monetary order for compensation for loss or money owed under the [ Residential Tenancy] Act , regulation or tenancy agreement,” based on her allegation that Mr.

Prasad failed to “maintain the property in a state that is suitable for occupation.” RTB #3 addresses Ms. Gardiner’s claim for losses “associated with the mould”, including “damaged clothing and personal belongings, and a reduction in the value of the tenancy,” “aggravated damages” and adverse health effects.

[12] The RTB found that there was mould in the home but that Ms. Gardiner had failed to prove on a balance of probabilities that themould was attributable to Mr. Prasad’s acts or omissions or that the mould caused the alleged health problems. Is the claim res judicata, i.e., barred because it was decided by the RTB? [13] In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at paras 18, 25 and 62 (Danyluk), the Supreme Court of Canadareviewed the doctrine of estoppel per rem judicatem, commonly known as res judicata, and the rationale for it: 18 The law rightly seeks a finality to litigation.

To advance that objective, it requires litigants to put their best foot forward toestablish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at thecherry. The appellant chose the ESA as her forum. She lost. An issue, once decided, should not generally be re-litigated to the benefitof the losing party and the harassment of the winner. A person should only be vexed once in the same cause.

Duplicative litigation,potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. … 25 The preconditions to the operation of issue estoppel were set out by Dickson J. in Angle, supra, at p. 254: (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppelis raised or their privies. … 62 … There is no doubt that such a discretion [not to apply issue estoppel] exists.

In General Motors of Canada Ltd. v. Naken, (SCC), [1983] 1 S.C.R. 72, Estey J. noted, at p. 101, that in the context of court proceedings “such a discretion must be verylimited in application”. In my view the discretion is necessarily broader in relation to the prior decisions of administrative tribunalsbecause of the enormous range and diversity of the structures, mandates and procedures of administrative decision makers. [14] In Danyluk, the plaintiff brought her claim for damages against her former employer under the Employment Standards Act, RSO1990, c. E. 14 (ESA) before an employment standards officer.

She also commenced legal action in the Ontario Court (General Division)before a decision was made under the ESA, and did not apply for judicial review after the case was decided against her by theemployment standards officer. [15] Applying the test in Danyluk, I have no hesitation finding that Ms. Gardiner is asking me to decide the same question that wasdecided by the RTB, that the decision of the RTB was judicial in nature and final, and that the parties to the RTB proceeding were thesame as the parties before me.

The question is whether I should exercise my discretion not to apply the estoppel doctrine as the Courtdid in Danyluk. [16] The Supreme Court of Canada found that Ms. Danyluk had not received notice of evidence that was submitted by her employerand relied upon by the employment standards officer, and did not have an opportunity to respond to it. That irregularity deprived Ms.Danyluk of procedural fairness.

In combination with certain features of the ESA at the time, which did not provide exclusive jurisdictionover employment-related claims, that irregularity caused the Supreme Court of Canada to find that the lower courts should haveexercised their discretion in Ms. Danyluk’s favour. [17] Relying on Danyluk, however, I am not prepared to dismiss Ms. Gardiner’s claim at this stage. Unbeknownst to me, there mightbe considerations militating in favour of not applying the doctrine of res judicata.

Had I not decided to dismiss her claim on othergrounds, I would have heard evidence and invited submissions from the parties. Is the claim barred by the Limitation Act or the RTA due to the passage of time? [18] The events that give rise to Ms. Gardiner’s claim occurred while she was living in the house from March 1, 2018 to October 31,2020. There is some evidence that Ms. Gardiner had discovered her claim by September 28, 2020, the date of RTB #1. RTB #1mentions monetary claims totalling $30,100 and Ms.

Gardiner filed photographs depicting damage to the house and her possessions,which must have been taken while she was still living there. There is also an argument that at the latest Ms. Gardiner had “discovered”her claim by the end of her tenancy – October 31, 2020. If that were the case, the limitation period under the Limitation Act and the RTA– two years – would have expired on March 26, 2023, accounting for the COVID-19 suspension of limitation periods. [19] Ms. Gardiner’s Notice of Claim was filed on April 12, 2023, which means that it was likely out of time. However, not havinggiven Ms.

Gardiner an opportunity to adduce evidence on when she discovered her claim, including long-term health effects, I am notprepared to dismiss her claim at this stage based on an apparent limitation issue. Had I not decided to dismiss her claim on othergrounds, I would have heard evidence and invited submissions from the parties. Does the Court have jurisdiction to hear the claim? [20] In Bulwer v.

Canadian Mental Health Association and Others, 2016 BCSC 1110 at paras 17 and 19 (Bulwer), Justice Baird findsthat the RTB has exclusive jurisdiction to adjudicate disputes arising out of residential tenancies based on the RTA, considered as awhole: 17 Considering the RTA as a whole, including s. 6 ("Enforcing rights and obligations of landlords and tenants"), the correct

interpretationof this mixture of mandatory and permissive language is this: if either a landlord or tenant has a dispute against the other concerning

rights or obligations under a tenancy agreement or the RTA , and assuming that it cannot be resolved by agreement, then either may apply to the director, who must conduct a hearing and resolve the dispute unless it is obvious that the complaint has no merit, the applicant owes fees payable under the RTA , or the complaint is formally defective: see s. 59(5) . … 19 The privative language forbidding adjudication of such complaints in this court is strong and clear.

It is subject only to the exceptions contained in s. 58(4) referring to claims over $25,000 and matters subsumed in other litigation properly before the court. The director is empowered by s. 67 of the RTA to order damages for compensation or loss in any lesser amount, including aggravated damages in negligence cases: Sahota v. Vancouver Director of Residential Tenancy Branch , 2010 BCSC 750 … [ 21 ] As an aside, I pause to comment on Justice Baird’s reference to the “mixture of mandatory and permissive language” that comprises the RTA ’s provisions on jurisdiction.

On the one hand, section 58(1), which governs the making of claims with respect to disputes between landlords and tenants, is permissive – a person “may make an application… for dispute resolution” to the RTB: 58(1) Except as restricted under this Act, a person may make an application to the director for dispute resolution in relation to a dispute with the person's landlord or tenant in respect of any of the following: (

a) rights, obligations and prohibitions under this Act; (

b) rights and obligations under the terms of a tenancy agreement that (

i) are required or prohibited under this Act, or (ii) relate to (

A) the tenant's use, occupation or maintenance of the rental unit, or (

B) the use of common areas or services or facilities. [ 22 ] On the other hand, the Court is only prohibited from exercising jurisdiction in respect of matters that must be submitted to the director for dispute resolution under the RTA , even though there does not appear to be an express provision in the RTA requiring landlords and tenants to submit disputes to the RTB for resolution. [ 23 ] Sections 58(2)(

a) and 58(3) read as follows: 58(2) Except as provided in subsection (4)(a), the director must not determine a dispute if any of the following applies: (

a) the amount claimed, excluding any amount claimed under section 51 (1) or (2) [tenant's compensation:

section 49 notice] , 51.1 [tenant's compensation: requirement to vacate] or 51.3 [tenant's compensation: no right of first refusal] , for debt or damages is more than the monetary limit for claims under the Small Claims Act ; …

(3) Except as provided in subsection (4) or (4.1), a court does not have and must not exercise any jurisdiction in respect of a matter that must be submitted to the director for dispute resolution under this Act. [ 24 ] Despite these peculiarities of the RTA , I am bound by Bulwer on the question of jurisdiction and cannot hear Ms. Gardiner’s claim. In any event, I also find support for the Bulwer

interpretation in the RTB’s willingness to exercise jurisdiction over Ms. Gardiner’s claim in RTB #3 and in Han v. Baune , 2021 BCCA 139 ( Han ). While Han does not directly address the issue of jurisdiction, the decision demonstrates the acceptance of the RTB’s jurisdiction and expertise in the area of torts, including claims for health problems caused by mould, in the context of landlord-tenant disputes. Order [ 25 ] I rely on my authority under Rules 16(6)(

o) and 7(14)(

i) of the Small Claims Rules and

section 2 of the Small Claims Act , RSBC 1996, c. 430 , to dismiss a claim after reviewing filed documents: Treminio v. Aveda Institute, 2017 BCPC 348 at paras 19 to 22 . [ 26 ] In the absence of jurisdiction, there is no triable issue. [ 27 ] Ms. Gardiner’s claim is therefore dismissed. _____________________________ The Honourable Judge N. Preovolos Provincial Court of British Columbia