Piekiel v. Scopelleti, 2021 BCPC 224

Citation: Piekiel v. Scopelleti 2021 BCPC 224 Date: 20210715 File No: C-2169284 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DANA ALEXANDRA PIEKIEL CLAIMANT AND: SHAYNE SCOPELLETI DEFENDANT ORAL REASONS FOR JUDGMENT RE WITHOUT NOTICE APPLICATION OF THE HONOURABLE JUDGE N. PHILLIPS Counsel for the Claimant: R. Breder by teleconference Appearing for the Defendant: Not Present Place of Hearing: Vancouver, B.C. Date of Hearing: July 15, 2021 Date of Judgment: July 15, 2021 [ 1 ] THE COURT : I can tell you then, Ms.

Breder, I am prepared to make the order sought, and I will put this on the record. [ 2 ] The application in front of the court was filed shortly after a notice of claim was filed in this case on June 14, 2021, but before Mr. Scopelleti, the named defendant in the notice of claim, was served with the notice of claim. The application that was filed two days

later, on June 16, seeks relief on an ex parte basis restraining Mr. Scopelleti from selling, disposing or otherwise moving the two dogs to another person until the resolution of these proceedings, and that the dogs be returned to the claimant forthwith pending resolution of the case. [ 3 ] The record will reflect that counsel has filed an affidavit from her client in support of this application, and supporting materials. I have had a chance to read those materials entirely in advance.

I had indicated at the outset to counsel speaking to the matter on the claimant's behalf, that the court is satisfied that dogs generally are treated as property for the purpose of these types of applications and that the court does have jurisdiction to make the order sought. The issue that I had was whether it would be appropriate to make that order before the notice of claim was served and on an ex parte basis. [ 4 ] One of the cases that was provided to the court in support of the application was made on an ex parte basis, but it was after the notice of claim was served and a reply was filed.

That is Judge Ehrcke's decision. [ 5 ] I am advised by Ms. Breder that more recently, in an unreported decision of Judge Skilnick of this court from September 10, 2020, in Abbotsford, he entertained a matter very similar to this in terms of the timing; that is, it was made on an ex parte basis after the notice of claim was filed but before it was served. Judge Skilnick found it was appropriate to make the order. [ 6 ] With respect to this particular application of the claimant Ms. Piekiel, she attests in her materials as to the relationship with Mr.

Scopelleti -- it was a romantic relationship; the breakdown of that relationship; how the two of them acquired two dogs, Miloh and Autumn; and how after the breakdown of the relationship she has retained a personal interest, if I can put it that way, I do not mean to use the word interest in the legal sense, and wishes to have the dogs back. [ 7 ] In the affidavit material, the claimant attests to violence in the relationship. There is a letter that documents it in some detail but she also sets it out in the sworn part of her affidavit.

She has included a considerable amount of documentation showing her proprietary interest in both dogs, including a considerable amount of material relating to dog licencing, veterinary care for the dogs, purchase of food items for the dogs, and correspondence between the parties relating to the animals. [ 8 ] Mr. Scopelleti, interestingly enough, in the affidavit material that was filed, had indicated on at least one occasion after the parties separated near the start of 2020 that he was open to having the claimant take the dogs.

However, when she made efforts to get the dogs, they had been taken to an undisclosed location. This is at paragraph 18 of her affidavit. This was on January the 18th, 2020, and that she has not seen the dogs since that date. There was some discussion later in January and then again in February of 2020, where the claimant was trying to make arrangements to get the dogs back, but was unable to do so. [ 9 ] The claimant has also asked other people to try to assist her in this regard, given the history of violence in the relationship, but that has not been successful.

This is at paragraph 19 of her affidavit. [ 10 ] There was also a concern in the affidavit material that the defendant, Mr. Scopelleti, may leave the jurisdiction and move to Montreal. That does not appear to be an issue for the purposes of today’s application. There is also some history in the affidavit, separate and apart from the concerns that the claimant has for violence to occur if she were to serve the notice of claim on Mr. Scopelleti and try to get the dogs, a concern that he will hide or hurt the dogs. There is an additional concern about Mr.

Scopelleti evading service on an unrelated matter that is set out in paragraph 24 of the affidavit. [ 11 ] There is current information that suggests that Mr. Scopelleti is residing at a known address and that the dogs are with him. This is at paragraph 28 of the affidavit. Therefore, there is a reason to believe that the dogs remain in his possession and their whereabouts are known. [ 12 ] I am satisfied from the materials in front of the court today that Ms. Piekiel has a fairly strong prima facie case with respect to ownership of the dogs, and that she has attempted to get the dogs back from Mr.

Scopelleti following the breakdown of their relationship but Mr. Scopelleti has not allowed that to happen. He has not, from the affidavit material, offered a reason for that. Ms. Piekiel would have acted sooner to bring this application but there were financial constraints and perhaps constraints related to the pandemic. Ms.

Piekiel has made full and frank disclosure with respect to this ex parte relief that she is seeking, and I am satisfied not only that the court has the jurisdiction in law to make the order sought, but that it is appropriate in these unusual circumstances to do so on an ex parte basis. [ 13 ] So I am granting the relief sought. Just bear with me for a moment, then, while I look at this and I am going to pause from time to time, Ms. Breder, in case you have any thoughts on the actual wording of the order.

I would ask that the order be made clear that it is ex parte, even though we are using a form from the Small Claims Registry, that does not make that an option. Perhaps it can be handwritten. [ 14 ] The order is as follows.

Pursuant to Rule 17(18) of the Small Claims Rules, it is ordered that the animals referred to in the notice of claim in this action as Miloh and Autumn shall immediately be given to the claimant, Dana Alexandra Piekiel, pending the outcome of this action or further order of this court. [ 15 ] The next term will be that the claimant may seek the assistance of the Burnaby RCMP in effecting compliance with this order. Pursuant to Rule 10-1 of the B.C.

Supreme Court Rules as adopted by Rule 17(18) of the Small Claims Rules, peace officers of the Burnaby RCMP are authorized to enter on any land or building for the purpose of enabling this order to be carried out. [ 16 ] The next term: upon compliance with this order the defendant, Shayne Scopelleti, may apply to amend or set aside this order on seven days' prior notice to the claimant.

Service of any such application shall be effected in a manner which does not violate -- excuse me, I do not think there are release conditions, so I do not think I need to include that, but just bear with me for a moment. [ 17 ] CNSL. R. BREDER: That's right. That's right. That's not necessary in this case. [ 18 ] THE COURT: Service of any such application may include service by registered mail to the office of the claimant's counsel, or service effected through his own counsel. Because I think your wish, Ms. Breder, is that that service occur through your office, correct?

[ 19 ] CNSL. R. BREDER: Yes please. Yes. [ 20 ] THE COURT: Thank you. Just bear with me one moment, I want to hearken back then to service of the notice of claim. I do not think it needs to be included in this order, and it may muddy things to do that. I do not think your client requires the court's approval to serve the notice of claim by registered mail, so I think the order can be -- [ 21 ] CNSL. R.

BREDER: Right. [ 22 ] THE COURT: -- silent on that, but I am wondering then, though, perhaps it is going to simplify things if I make a final term of today's order that the claimant serve a copy of her application, her affidavit and the supporting materials filed for today by registered mail at Mr. Scopelleti's address, again for the record, is 3753 Sunset Street in Burnaby, British Columbia. [ 23 ] CNSL. R. BREDER: Can I jump into -- [ 24 ] THE COURT: Yes. [ 25 ] CNSL. R. BREDER: -- [indiscernible].

The only thought that comes to mind about serving by registered mail, we've had issue when the package is too thick, Canada Post for whatever reason can't deliver it by registered mail. [ 26 ] THE COURT: Oh, okay. [ 27 ] CNSL. R. BREDER: And so -- I mean, we would double-side everything and maybe it would fit, but I'm just concerned that if it doesn't fit by registered mail, if we could deliver it by regular mail, or -- [ 28 ] THE COURT: Yes. [ 29 ] CNSL. R.

BREDER: -- the order could say by registered mail or if that is not possible because of the requirement of Canada Post, then that it be served via regular mail. [ 30 ] THE COURT: What I am going to do is this, Ms. Breder. Thank you for raising that. I am going to direct that the order simply read that the claimant serve a copy of her application and the affidavit without exhibits by registered mail, because that will be fairly skinny, and that she also serve a copy of the complete affidavit with exhibits and the supporting material by regular mail. [ 31 ] CNSL. R. BREDER: Ah.

Okay, that's a great idea, yes. [ 32 ] THE COURT: I think that will do it. That way he will get it but it will come in two parts so there is no issue with Canada Post. [ 33 ] CNSL. R. BREDER: Yes. Thank you very much. Okay -- [ 34 ] THE COURT: Ms. Breder, was there anything else, then? [ 35 ] CNSL. R. BREDER: Yes, two -- two other points. One is I was just looking to add, just to make sure that I didn't misstate anything, I think I said with -- on the Kooy matter, we did serve the notice of claim after. After the -- the order was made. For sure. [ 36 ] THE COURT: Right. [ 37 ] CNSL. R.

BREDER: The ex parte was done without any notice whatsoever. But I think I said that we served the notice of claim and the application material, and I'm looking at my letter to the defendant in that case and it looks like we just served a notice of claim, and I can't remember -- nothing turns on it, I just -- just to be clear for the record, because I think -- [ 38 ] THE COURT: Right. [ 39 ] CNSL. R. BREDER: -- I said that we served both the notice of claim and the application, but I think we just served the notice of claim in that case. [ 40 ] THE COURT: Thank you. [ 41 ] CNSL. R.

BREDER: So that -- [ 42 ] THE COURT: I appreciate you clarifying that. [ 43 ] CNSL. R. BREDER: Okay, that's that. And then the other -- the other order that I -- I was wondering if the court is prepared to make is just in case things don't go smoothly and he somehow finds out about this, you know, the police show up at his place but he's not there, friends tell him, or you know, that -- that there be an additional order that restraining the defendant -- [ 44 ] THE COURT: Yes. [ 45 ] CNSL. R. BREDER: -- or his agents. [ 46 ] THE COURT: Yes, Ms.

Breder, I can tell you I did not do that because I overlooked that in my notes, and as you were speaking I just highlighted that to come back to it. [ 47 ] I am prepared to make that order, I think it makes sense given the nature of the order I have already made, it would -- and the affidavit material of your client. So just bear with me for one moment.

[ 48 ] CNSL. R. BREDER: Yes, thank you. It was just that I was thinking more of a safety net. [ 49 ] THE COURT: Right. Just give me one second just while I contemplate some wording for that. [ 50 ] Mr. Registrar, what I am going to ask, then, is that after the paragraph in the order regarding the involvement of the Burnaby RCMP there be a separate paragraph to follow immediately that would state as follows, that Shayne Scopelleti be restrained -- sorry, just give me one moment. [ 51 ] I am going to just change the wording, that Shayne Scopelleti not sell, dispose or otherwise transfer possession of the dogs.

Excuse me, except in accordance with this order. If that is clear. [ 52 ] Is there anything else then, counsel? [ 53 ] CNSL. R. BREDER: There is just one word, if I may -- if I may suggest just as a last part of the order, just so it's abundantly clear to him, I'm just thinking what he could potentially think. The wording is, I think, was not selling or otherwise or -- or transfer or transfer possession of. [ 54 ] THE COURT: Right. [ 55 ] CNSL. R. BREDER: Can we include a term about not moving, temporarily or otherwise? [ 56 ] THE COURT: Yes. [ 57 ] CNSL. R.

BREDER: You know, because I think he could say oh well, me bringing the dogs to my friends isn't transferring possession of them, they're just staying there. You know, so even just not moving temporarily or otherwise. [ 58 ] THE COURT: Thank you. So that wording, I am satisfied it is appropriate, so the language will be that Mr. Scopelleti not sell, transfer, dispose or move temporarily or permanently the dogs. [ 59 ] CNSL. R. BREDER: Yes, thank you. [ 60 ] THE COURT: I think that covers it off, just out of an abundance of caution. [ 61 ] CNSL. R. BREDER: Yes. (REASONS CONCLUDED)