Triumph Express Service Canada v. Elite Systems Date:, 2011 BCPC 73

Citation: Triumph Express Service Canada v. Elite Systems Date: 20110329 2011 BCPC 0073 File No: C11131 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: TRIUMPH EXPRESS SERVICE CANADA INC. CLAIMANT AND: ELITE SYSTEMS INC. DEFENDANT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Appearing for the Claimant: Nikos Demosthenis (a company representative) Appearing for the Defendant: Angeline Ho (a company representative) Court Recorder: F. Morrisette Transcriber: I. Lim Place of Hearing: Port Coquitlam, B.C. , B.C.

Date of Hearing: March 29, 2011 Date of Judgment: March 29, 2011 [ 1 ] THE COURT: I have reconvened this matter in a courtroom from a settlement conference room because of the nature of the order that I am about to make. It is an order that requires some explanation and, in my view, it is an order that oug ht to be pronounced on the record.

The order invokes the power of a judge presiding over a settlement conference to make a dismissal order when faced with a party's attendance, in name only, at the settlement conference [ 2 ] The claimant in this action is called Triumph Express Service Canada Inc., to which I will refer as "Triumph." The defendant is called Elite Systems Inc., to which I will refer as "Elite." [ 3 ] Under a Notice of Claim in Port Coquitlam Registry No. 11131, Triumph brought action against Elite in respect of freight forwarding services that it rendered to Elite and for which it charged Elite $1,925 U.S.

Those services were rendered in the spring of 2010. [ 4 ] Elite purported to pay Triumph for performing these services by cheque. A cheque drawn on Elite's U.S. dollar account, dated May 4th, 2010, payable to Triumph in the amount of $1,925 U.S.D. was delivered to Triumph. However, when Triumph sought to negotiate the cheque, it failed to clear and was returned NSF.

The cheque bears the bank notation: "Pursuant to clearing rules, this item may not be cleared again unless certified." [ 5 ] Triumph engaged in communications with Elite with a view to having the NSF cheque replaced with a cheque that would properly clear. In the course of those communications, no issue was taken by Elite with the services rendered by Triumph to it and for which it had previously purported to tender payment.

[ 6 ] Realizing no success in its persistent efforts to secure a properly negotiable cheque in payment of its account, Triumph finally brought action in these proceedings. [ 7 ] Triumph's Notice of Claim was filed on June 30th of 2010. It claims the Canadian dollar equivalent of the U.S. $1,925, that is $2,008.16 as of the date of filing of the Notice of Claim, calculated on the basis of the then-prevailing exchange rate.

Triumph also claims the Canadian equivalent of bank charges of $5.00 U.S. in relation of the failure of the cheque to clear, and it further claims two percent per month on overdue accounts, a contractual rate of interest. It also claims $100 by way of filing fees and $80 by way of services. [ 8 ] On July 23rd of 2010, Elite filed its Reply to Triumph's claim. Most of the content of the Reply is unresponsive to the claim and has no legal significance in the sense of raising defences to it. There is one reference in the Reply to service not having been satisfactory.

The Reply also refers in the "Agreement with the Claim" portion to an offer on the part of Elite to pay to Triumph $1,200 U.S., a discounted amount of the charges Triumph pursues against Elite, which Triumph has declined to accept. [ 9 ] In the normal course, this matter was scheduled for a settlement conference.

A Notice of Settlement Conference issued from the Port Coquitlam Provincial Court Registry on December 24th, 2010, and it referred to today's date, March 29th, 2011, at 2:45 as being the date and time for the settlement conference. [ 10 ] Typically, the Notice of Settlement Conference made reference to those who must attend settlement conferences and what they must bring and what authority they must have. [ 11 ] As to what the parties must bring, the Notice of Settlement Conference states: Each party to a claim must bring to the settlement conference all relevant documents and reports. [ 12 ] As to who has to attend, the Notice of Settlement Conference states, in part: All parties must attend the settlement conference and have authority to settle the claim. [ 13 ] In the time between the settlement conference today and the notification of the parties of the date and time for that settlement conference, Elite raised the issue both with Triumph and with the registry of the date being inconvenient for the principal of Elite, its vice-president, Pauline Liu (phonetic). [ 14 ] Elite sought the consent of Triumph to

schedule the settlement conference for a different date to accommodate international travel commitments of Ms. Liu. Triumph declined to consent to an adjournment of the settlement conference. Both Triumph and Elite (through Ms. Liu, and possibly others at Elite) had communications with the registry at the Provincial Court building in Port Coquitlam in which the subject of possible rescheduling of the settlement conference was discussed.

However, no formal application was brought by Elite to have the settlement conference adjourned to a different date and so it remained scheduled for today, March 29th, 2011, at 2:45 p.m. [ 15 ] The immediately preceding settlement conference concluded early and so the settlement conference in this matter began early with two representatives from Triumph present and Angeline Ho present on behalf of Elite. [ 16 ] Angeline Ho is an employee of Elite, and she brought with her a letter from Pauline Liu, vice-president of Elite, dated March 15, 2011, on Elite letterhead stating the following: To whom it may concern re case number 11131.

This is to verify Angeline Ho as the representative of the company for this case. She will endeavour her very best to answer any question come up during this meeting from the claimant, failing which I would like to meet with the claimant upon my return from overseas. Yours truly, Pauline Liu, Vice-President. [ 17 ] At the beginning of the settlement conference proper, Ms. Ho, as representative of Pauline Liu and as representative of Elite, explained to all present that she had a very limited basis for participation in the settlement conference.

She explained carefully that she had no knowledge whatsoever of the merits of the dispute, or of the subject matter of the transaction that is at the centre of the dispute, or the facts that surround it. [ 18 ] She further explained that she came with authority to restate the offer reflected in Elite's Reply under which Elite indicated a willingness to pay $1,200 U.S. for the services that are the subject of Triumph's claim and Elite's previously dishonoured cheque. Ms.

Ho explained that she had no authority to enter into settlement negotiations and that she had no authority to do other than simply place before Triumph the offer contained in its Reply that Triumph, through its continued pursuit of the action, has plainly rejected. [ 19 ] It is significant, in my view, that at the centre of this dispute is a dishonoured cheque payable in the full amount of the principal amount of Triumph's claim issued by Elite to Triumph. [ 20 ] It can be argued, by recourse to the Bills and Exchange Act , that in these circumstances Elite has little or no basis in law upon which it can defend the claim asserted against it by Triumph.

However, I decline to deal with the matter on that footing. Rather, I have determined that the appropriate way to deal with the matter is by recourse to Rule 7(17) of the Small Claims Rules , which provides as follows: A judge may dismiss the claim or make a payment order or other appropriate order against a party who does not attend a settlement conference. [ 21 ] Inasmuch as Elite has sent Angeline Ho to appear at the settlement conference, it has "attended" the settlement conference after a fashion. However, in my view, when Elite sent Ms.

Ho equipped with neither any information about the subject matter of the litigation, or any authority to engage in any way in settlement negotiation, Elite "attended" the settlement conference in name only.

[ 22 ] In my view, when a party sends a representative who possesses no meaningful appreciation of the subject matter of the dispute in question, and no corporate authority to enter into settlement negotiations or commit the party to a consensual resolution of the subject dispute, there is no functional difference between that and not appearing at all. [ 23 ] Rule 7(17) confers upon a settlement conference judge jurisdiction to proceed by default against any party that does not attend.

In all material respects, in my view, Elite did not attend. [ 24 ] Accordingly, and for all of those reasons, exercising my jurisdiction under Rule 7(17), I order that Elite shall pay to Triumph the full amount of its claim, that is to say, $2,008.16, as to the principal amount of the claim, $5.22 as to bank charges, contractual interest at two percent per month from May 4th, 2010 to March 29, 2011, today, the date of judgment, $100 on account of Triumph's filing fees, and $80 on account of Triumph's services.

I direct that the registry calculate the two-percent-per-month simple interest payable by Elite to Triumph pursuant to this order, and I order that Elite pay the full amount of the judgment to Triumph on or before Friday, April 15, 2011, at the latest, failing which Triumph is at liberty to pursue all steps by way of execution available to it under the Small Claims Act and Rules . (ORAL REASONS FOR JUDGMENT CONCLUDED)