Dalla Rosa v. Town of Ladysmith Date:, 2017 BCPC 178

Citation: Dalla Rosa v. Town of Ladysmith Date: 20170614 2017 BCPC 178 File No: C5127 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: NINA DALLA ROSA CLAIMANT AND: TOWN OF LADYSMITH DEFENDANT REASONS FOR JUDGMENT ON AN APPLICATION OF THE HONOURABLE JUDGE J.P. MACCARTHY Appearing on her own behalf: Nina Dalla Rosa together with Kayla Dalla Rosa Counsel for the Defendant: Sean Smith, Articled Student Place of Hearing: Duncan , B.C.

Date of Hearing: April 26, 2017 Date of Judgment: June 14, 2017 A Corrigendum was released by the court on June 22, 2017. The corrections have been made to the text and the Corrigendum is appended to this document.

INTRODUCTION [ 1 ] Nina Dalla Rosa has commenced an action against the Town of Ladysmith in connection with what are alleged to have been property taxes paid by her, or on her behalf, as a registered owner of residential premises located at 625 Oakwood Road, Ladysmith, British Columbia (the “Property”) to the Town of Ladysmith, being a municipality under the Local Government Act , RSBC 2015, Ch. 1 (the “ Local Government Act ”) and, as such, is subject to the the Community Charter , S.B.C. 2003, Ch. 26 (the “ Community Charter ”).

The Defendant is statutorily authorized to impose and collect taxes against the Property. [ 2 ] Nina Della Rosa (the “Claimant”) asserts that all amounts of taxes so imposed have been paid by her to the Town of Ladysmith (the “Defendant”) for the taxation years through and including 2013 and thereafter for the taxation years of 2014, 2015 and 2016. [ 3 ] Essentially, she alleges in her Notice of Claim that the Defendant is attempting to “again charge us for the 2014 property taxes and is improperly charging penalties and interest.” A claim for relief is thereafter contained within the Notice of Claim as is further noted and described below. [ 4 ] In its Reply, among several other denials, the Defendant denies the alleged payment of all property taxes and asserts that the tax payments which have actually been paid and received by it from the Claimant have, in fact, been properly credited to the municipal tax account for the Property.

In the Reply, the Defendant further states the relief apparently sought by the Claimant is outside of the jurisdiction of the Provincial Court. [ 5 ] A settlement conference was held on October 31, 2016, at which time certain disclosure orders were made by the presiding judge. A pre-trial preparation conference was held on November 29, 2016, at which time a second pre-trial conference regarding the issue of the Provincial Court’s jurisdiction was ordered.

At the second pre-trial conference held on February 17, 2017, the Honourable Judge Brooks adjourned the determination of the question of this Court’s jurisdiction to grant the relief being sought to a future date. That application came before me and was heard on April 26, 2017. [ 6 ] Written submissions were ordered and received. The following are my reasons for judgment on this application. Background of the Circumstances Giving Rise to the Claim [ 7 ] The Claimant is self-represented and the Defendant has been represented by legal counsel throughout this matter.

Notice of Claim [ 8 ] The Claimant’s Notice of Claim was filed on August 9, 2016. [ 9 ] In her Notice of Claim, the Claimant describes her claim in the following fashion and makes the following allegations: 1. Under the heading of “What Happened?” the Claimant alleges and states as follows: (

a) Property taxes through 2013 were paid September 18, 2014. (b) 2014 property taxes were paid June 12, 2015 in cash. (c) 2015 property taxes were paid June 22, 2015 in cash. (d) 2016 property taxes were paid June 30, 2016 by cheque delivered by courier because Town refused to accept cheque in person. Town of Ladysmith is trying to charge us again for 2014 property taxes and is improperly charging penalties and interests. 2. Under the

section of the Notice of Claim dealing with the relief being sought and under the heading “How Much?” the Claimant states as follows: (

a) False amount charged by town of Ladysmith: $2,322.13. (

b) Interest as charged/accrued until trial: unknown. (

c) Penalties improperly applied: unknown. [ 10 ] The Claimant then claims $156 for filing fees and $20 for service fees. The “Total Claim” amount is shown as “Unknown” and the “Other than Debt” box rather than the “Debt” box has been checked, thereby indicating that this is not a claim being brought in debt. Reply [ 11 ] On August 17, 2016, the Defendant filed a comprehensive Reply which contains a general denial of the Claimant’s alleged facts and then makes the following allegations as summarized below:

a) Paragraph 2, that the Defendant has not charged any “false amounts” and further that all amounts that the Claimant (and her co-owner Kayla Dalla Rosa) owe to the Defendant are either for unpaid property taxes or “statutorily mandated penalties and interest thatare charged when property owners fail to pay their property taxes on time.”

b) Paragraph 3, that the claim involves property taxes for the Property for the years 2014, 2015 and 2016 and thereafter it states: “asper

section 234 of the Community Charter the deadline for payment of property taxes each year is July 2. If that date falls on a weekendor statutory holiday, the deadline is extended to the next business day.”

c) Paragraph 4, that for the year 2014, the Claimant owed property taxes of $1,870.15 that they were not paid by July 2, 2014 andtherefore interest and penalties began to accrue on the failed payment, including a 10% penalty on the balance owing of $187.81, whichwas imposed pursuant to

section 3 of the Municipal Tax Regulation,

d) Paragraph 5, that the Defendant denies that the Claimant made payment of the 2014 property taxes on June 12, 2015 (as alleged bythe Claimant) and further that the Defendant has no record of any payments being made for property taxes for the Property on that date.

e) Paragraph 6, that the Defendant acknowledged it received payment of $2,136.18 towards the property taxes for the Property on June22, 2015; this amount corresponded to the net amount due for 2015 property taxes on the Property, however, because the Claimant stillowed $2,065.96 for the 2014 property taxes, the amount received on June 22, 2015, was applied to the previous year’s outstandingbalance (that is for 2014) as required by

section 244 of the Community Charter.

f) Paragraph 7, that the amount remaining after the 2014 property taxes were paid was credited towards the 2015 property taxes,which were due on July 2, 2015.

g) Paragraph 8, that neither the Claimant nor Kayla Dalla Rosa made any further payments prior to the July 2, 2015, deadline for the2015 taxes; that the 2015 property taxes were not paid in full and, accordingly, interest and penalties began to accrue on the remainder ofthe 2015 taxes.

h) Paragraph 9, that the 2016 property taxes for the Property were $1,974.91 and were due on July 4, 2016. Furthermore that on June28, 2016, Kayla Dalla Rosa attended to the Defendant’s office stating she wanted to pay the 2016 property taxes insisting that they beapplied to the 2016 amount rather than the amount owing for previous years. When the Defendant’s staff informed her that any amountpaid had to be applied to taxes owing for previous years before being applied to taxes owing for the current year, she departed withoutmaking a payment.

i) Paragraph 10, that a payment of $1,974.91 was received by the Defendant for property taxes relating to the Property on June 30,2016, which was applied to the 2015 taxes outstanding. No further payments for taxes were received before July 4, 2016, resulting in a10% penalty of $197.49 being imposed pursuant to

section 3 of the Municipal Tax Regulation.

j) Paragraph 11, that, in part, failure to pay the 2014, 2015 and 2016 taxes on time has resulted in the proper statutory imposition ofpenalties and interest, pursuant to the Community Charter.

k) Paragraphs 11 and 12, that the Defendant describes the resulting claim of the Claimant as being “baseless and should be dismissed,”continuing on to say that the Claimant does not appear to be making a claim in debt and “rather she is asking for a declaration that the[Defendant] is improperly charging her for property taxes and associated penalties and interest and, therefore, the Claimant does not owethe [Defendant] any money for property taxes (a claim which the [Defendant] denies). Declaratory relief is outside of the jurisdiction ofthe Provincial Court.

Therefore, this claim should be dismissed.” THE APPLICATION [12] Since the Defendant has raised the question of this court’s jurisdiction about the relief apparently sought by the Claimant, I amconsidering the Defendant to be the applicant in the present application. Therefore, I may refer to the Defendant, from time to time asthe “Applicant” and I may refer to the Claimant as the “Respondent”. [13] There is no evidence placed before the court in this application by either party.

Accordingly, I am relying upon the filedpleadings and the oral and written submissions for the purposes of making a determination and a ruling upon the issues raised in thisapplication. Position of the Applicant (Defendant) [14] The Applicant (Defendant) notes correctly that section 3(1) of the Small Claims Act, infra, establishes the jurisdiction of theProvincial Court and limits that jurisdiction to claims noted therein. The specific wording of that

section is set out below. [15] It is submitted by the Defendant that based on the existing Notice of Claim, it appears that the Claimant is alleging that theDefendant has double charged for 2014 taxes and therefore the Claimant seeks a declaration (that is declaratory relief) that she does notowe the amount charged to her by the Defendant, including penalties and interests. [16] Furthermore, it is submitted that the Claimant appears to be seeking an injunction to prevent the Defendant from charging herthese amounts.

Thus, the apparent type of relief being sought as discerned from the existing Notice of Claim does not fall within thejurisdiction of the Provincial Court. [17] In support of this proposition concerning the lack of jurisdiction of this court to grant declaratory or injunctive relief, theDefendant relies upon the authority contained in the decision of Kani-Hanjani v. Surrey (City) 2012 BCPC 346 ; 2012 B.C.J.No. 2067 at paragraph 40. [18] The Defendant does acknowledge that the Provincial Court would have jurisdiction where a person brings a tort action against

the municipality regarding an alleged misallocation of tax monies and where the relief sought is damages in an amount within the monetary jurisdiction of the Provincial Court. [ 19 ] The Defendant further acknowledges that if the Claimant were to reframe her claim, it is possible that it could be brought within the jurisdiction of the Provincial Court.

The Defendant does not oppose the court permitting the Claimant an opportunity to revise her pleadings. [ 20 ] Alternatively, the Defendant says that a person alleging misallocation of tax payment monies could bring an action in the Supreme Court of British Columbia where either declaratory relief or damages are potential remedies that may be granted. That would require filing a Notice of Civil Claim in Supreme Court.

In the present case, the Defendant submits that based upon the available information in the Notice of Claim, it is not clear whether the Claimant could seek relief under the Judicial Review Procedure Act , RSBC 1996,

chapter 241.

Position of the Respondent (Claimant) [ 21 ] In the course of the Claimant’s oral submissions made during the hearing of this application, it was stated that the Claimant is seeking to hold the Defendant accountable for its negligence in not keeping accurate records of the amount paid by the Claimant on the property taxes assessed against the Property. [ 22 ] In the Claimant’s written submissions filed May 11, 2017, the Claimant states her position and that of her daughter, Kayla Dalla Rosa, as follows: Our claim has always been about the negligent misallocation of the funds paid on the date of June 12, 2015, to the Town of Ladysmith for tax year 2014.

We are seeking to have the misallocated funds returned to us. Small claims court does have jurisdiction regarding an alleged misallocation of tax monies. Legal Framework and Legal Principles Jurisdiction of the Provincial Court [ 23 ] The Provincial Court of British Columbia is a statutory court created under the Provincial Court Act , R.S.B.C. 1986,

Chapter 379 [see

section 2]. [ 24 ] It has no inherent jurisdiction beyond what is expressly given to the Court or may be reasonably inferred from the Small Claims Act and the Small Claims Rules . That inferred jurisdiction is procedural and not substantive. Various case authorities have held that “by necessary implication” the Provincial Court may make certain types of procedural orders not specifically provided for in either the Small Claims Act or the Rules . [ 25 ]

Section 3 of the Small Claims Act noted above sets out the jurisdiction of the Provincial Court insofar as the types of claims with which it can deal. [ 26 ] Section 3(1) of the Small Claims Act , S.B.C. 1996, c. 430, provides a general statement of the jurisdiction of the Provincial Court under the Small Claims Act in the following terms: Claims the court may hear 3(1) The Provincial Court has jurisdiction in a claim for (

a) debt or damages, (

b) recovery of personal property, (

c) specific performance of an agreement relating to personal property or services, or (

d) relief from opposing claims to personal property if the amount claimed or the value of the personal property or services is equal to or less than an amount that is prescribed by regulation, excluding interest and costs.

(2) The Provincial Court does not have jurisdiction in a claim for libel, slander or malicious prosecution. [ 27 ] Under section 3(1) of the Small Claims Act , the court has no express authority to grant equitable remedies under the Law and Equity Act , R.S.B.C. 1996, c. 253 but does possess the limited jurisdiction arising from necessary implication to deal with matters of procedure to ensure justice is done. [ 28 ] Generally, a claim that seeks certain types of injunctive relief is beyond the jurisdiction of the Provincial Court except as noted directly above.

Also, a claim that seeks a declaratory order is beyond the jurisdiction of the Provincial Court, unless the order is incidental to a claim for relief in which the court has jurisdiction, such as specific performance [see Mort and Power v. Le , 2016 BCPC 287 (CanLll); [2016] B.C.J.

No. 2052 at paragraphs 67 to 70 inclusive]. [ 29 ] The Provincial Court cannot grant a remedy that affects any interest in land since Provincial Statutes confer this jurisdiction on the Supreme Court of British Columbia: see the Property Law Act , R.S.B.C. 1996, c. 377 at ss. 3, 13 , and 35 . [ 30 ] The Provincial Court does have jurisdiction to consider claims in which interests in land are at issue, insofar as those interests

relate to a claim for debt or damages provided, however, no statute precludes consideration by the Provincial Court, and so long as the remedy does not affect title or an interest in land. Within those limitations, it is open to the Provincial Court to assume jurisdiction; for example, in matters involving breach of contract relating to land (see: Lou Guidi Construction Ltd. v. Fedick , [1994] B.C.J. No 2409 (PC) ).

Jurisdiction of the Provincial Court to Dismiss a Claim [ 31 ] The Provincial Court does have jurisdiction to dismiss a claim in an application brought upon notice following the settlement conference: see Baldwin v. Baldwin , 2013 BCSC 1396 , citing Belanger v. A T & T Canada Inc., [1994] B.C.J. No 2792 at paragraph 4 . [see also Mort and Power v. Li, supra ]. Amending Filed Documents in an Action [ 32 ] Rule 8 of the Small Claims Rules permits amendments to a Notice of Claim, Reply or other document filed by a party after the time of the Settlement Conference with the permission of a judge, upon application.

Sufficiency of a Notice of Claim [ 33 ] This matter raises the question of whether or not the Claimant’s Notice of Claim adequately discloses the cause of action being relied upon by the Claimant. [ 34 ] A Notice of Claim in a Small Claims action prepared by an unrepresented party may rely upon what is sometimes referred to as “inelegant” pleadings as long as the opposing party is put on notice of the issues and the need to adduce relevant evidence at trial [see the Continuing Legal Education Society of British Columbia: Provincial Court Small Claims Handbook at

section 3.22 (relying on Priority Building Services v. Ali ; [1999] B.C.J. No. 2820 (Q.L) (S.C.) ]. [ 35 ] That same section, namely s. 3.22, also notes that it is necessary that the pleadings are sufficient in order that the defendant is not caught by surprise by an argument made at trial not disclosed in the pleadings (relying upon Kamloops Honda v. Collinge , 2000 BCSC 1686 ). Analysis Jurisdiction of the Court With Respect to the Present Form of the Claim [ 36 ] The decision of the Honourable Judge M. B. Hicks in Khani-Hanjani v.

Surrey (City), supra , is instructive and useful in determining the issue of this court’s jurisdiction with respect to the present form of the Claimant’s claim. [ 37 ] The facts in Khani-Hanjani v. Surrey (City) are different than in the present case before this court, but the legal principles stated are, in my view, applicable to the present case before me. [ 38 ] Khani-Hanjani v. Surrey (City) involved a claim brought by a property owner who alleged that the City had illegally broken into and entered his property in the course of an inspection under its Controlled Substance Property Bylaw . Mr.

Khani-Hanjani sought the remedy of damages for alleged damage caused to his property and for a loss of rental revenue. He also sought a reversal of penalties and interests set out in an invoice levied by the City for fees and service costs stemming from City officials attending at his property pursuant to the City’s Controlled Substance Property Bylaw , which unpaid amounts had apparently been added to the municipal tax account for the subject property. [ 39 ] The court dismissed Mr.

Khani-Hanjani’s claim to reverse the penalties and interest for want of jurisdiction and in doing so stated as follows: 38 I will deal first with the Claimant's plea for reversal of penalties and interest set out in the invoice of March 3, 2007. 39 The jurisdiction of the Provincial Court to grant relief and the remedies available are set out in the Provincial Court Act R.S.B.C. 1996, c. 430 at s. 3(1) which is as follows: 3(1) The Provincial Court has jurisdiction in a claim for (

a) debt or damages, (

b) recovery of personal property, (

c) specific performance of an agreement relating to personal property or services, or (

d) relief from opposing claims to personal property if the amount claimed or the value of the personal property or services is equal to or less than an amount that is prescribed by regulation, excluding interest and costs. 40 The remedy sought by way of reversal of fees is not a claim for debt or damages. It appears to be more in the nature of a declaration or injunction and those forms of relief are not available in this Court. 41 I have considered whether there is a discretion to recast this head of the claim in a way which might bring it within the Court's jurisdiction.

However, it is unclear to me how that might be done. I cannot simply clothe the court with the jurisdiction to act in this

fashion unilaterally bearing in mind that the Defendant has raised jurisdiction in his reply and referred to this issue in oral argument. 42 The claim for the reversal of penalties, costs, fees and interest as set out in the invoice of March 3, 2007, is dismissed for want of jurisdiction in this Court. [ 40 ] Therefore, on this basis, I agree with the Defendant’s submissions that as presently framed by the Claimant in her Notice of Claim, it appears that the remedy being sought by her is the same as that being sought by Mr.

Khani-Hanjani in reversing penalties and interest on the municipal tax account. [ 41 ] Accordingly, I am of the view that the remedy of a court declaration to essentially rectify the municipal tax account of the Property and to remove the “False amount charged by the Town of Ladysmith” (which are in fact statutory charges) is beyond the jurisdiction of this court and is, therefore, not available in the present action.

The same holds true for any injunctive relief that the Claimant may be seeking. [ 42 ] Where a party seeks reversal of fees and penalties, it appears that such relief is only available in the Supreme Court of British Columbia where declaratory or injunctive relief may be granted. [ 43 ] The Provincial Court does have some jurisdiction, however, under the Community Charter . The Provincial Court is specifically referred to and has jurisdiction for the following matters:

a) pursuant to

part 8 of the Community Charter , the Provincial Court has extensive jurisdiction to hear by law enforcement matters;

b) under section 49(10) of the Community Charter an animal control officer may apply to the Provincial Court for an order that a dangerous dog be destroyed; and

c) under section 231(1) of the Community Charter , taxes and fees, together with any applicable interest or penalties, are a debt due to the municipality that is recoverable in any court of competent jurisdiction. [ 44 ] I agree with the Defendant’s submission that the Community Charter does not stipulate any dispute resolution or judicial review procedure where a taxpayer alleges a municipality has misallocated monies or failed to record a tax payment.

Similarly, I see no mechanism to deal with these issues in any of the bylaws of the Town of Ladysmith to which I have been referred. [ 45 ] I further agree with the Defendant’s submission that the proper procedure for bringing an action against the municipality for such an error is dependent on what is being plead. Declaratory Relief is available under the Supreme Court Civil Rules (see: Rule 20-4) as is Injunctive Relief (see: Rule 10-4). A possible avenue for relief may be available under the Judicial Review Procedure Act , R.S.B.C. 1996, c.241; again, depending on the circumstances and what is being plead.

Reframing of the Claimant’s Claim [ 46 ] As presently framed, the Claimant’s Notice of Claim is inadequate to bring it within the jurisdiction of the Provincial Court.

No reference is made in that Notice of Claim to negligence on the part of the Defendant, which, for the most part, is within this court’s jurisdiction. [ 47 ] While the Defendant may, as a result of this application, have some notice that the case is being framed and advanced by the Claimant on the basis of the alleged negligence of the Defendant, it is not sufficiently clear as to what is specifically being alleged as tortious conduct nor are the particulars of that alleged negligence sufficiently set forth. [ 48 ] In Khani-Hanjani v.

Surrey (City) the court found it problematic as to how the claim could be recast with respect to the reversal of penalties and interests. [ 49 ] However, in this case, it would appear that the Claimant’s claim may be able to be recast as a claim in negligence or alternatively to clarify that the claim was originally intended to be brought in negligence and to amend the Notice of Claim appropriately to provide the adequate notice and information to the Defendant about the case which it must meet.

As previously noted, the Defendant is not opposed to the court permitting the Claimant an opportunity to revise her pleadings. [ 50 ] That said, it would be most beneficial for the Claimant to obtain some legal advice to assist her in amending and revising her pleadings contained within her Notice of Claim, filed August 9, 2016, in order to bring this matter clearly within the jurisdiction of the Provincial Court. [ 51 ] Without in any way ordering or directing the Claimant to do so, she and her daughter, Kayla Dalla Rosa, may also wish to consider joining Kayla Dalla Rosa, whom I understand to be a co-owner of the Property along with the Claimant, as a co-claimant in this action because it may be that Kayla Dalla Rosa was the source of some of the funds allegedly paid to the Defendant, for or on account of the municipal property taxes which are in dispute. [ 52 ] In my view and without specifically deciding the issue of what damages flow or may flow from any alleged negligence on the part of the Defendant, it would seem that the amount of damages that may be awarded against the Defendant would be subject to a form of setoff in favour of the Defendant in order that the amount of the damages (if any) or any portion of such amount so awarded would be applied to the outstanding balance on the municipal tax account of the Property, for unpaid amounts of taxes, interest and penalties.

If that were not the case, then there would be a remaining unpaid balance on the tax account for the Property. Decision and Order [ 53 ] Based upon all of the forgoing, I make the following orders arising from this application:

a. The Claimant will be at liberty by way of an application to be made pursuant to Rules 8(1) (

b) and 16(7) to a judge of the court to seek to amend the Claimant’s Notice of Claim filed August 9, 2016, in order to assert a claim against the Defendant that is within the jurisdiction of the Provincial Court of British Columbia and which claim relates to municipal taxes allegedly paid to the Defendant by or on behalf of the Claimant (the “Application to Amend”) and the Claimant may also seek to include Kayla Dalla Rosa as a named claimant, all of which is subject to further orders or directions of the court. b.

The Application to Amend will be filed by the Claimant with the Duncan Court Registry within 21 days of the filing in the Duncan Court Registry of these Reasons for Judgment rendered on the application in this matter heard before the Honourable Judge MacCarthy on April 26, 2017 (the “April 26, 2017 Application Hearing”) and thereafter the Claimant will forthwith serve the Application to Amend on the Defendant, all of which is subject to further orders or directions of this court. c.

The Application to Amend will be set for hearing before the Honourable Judge MacCarthy in accordance with arrangements made by the parties with the Judicial Case Manager, all of which is subject to further orders or directions of this court. d. If the Claimant’s Application to Amend is granted, the Defendant will file with the Duncan Court Registry any required amended Reply within 21 days and to forthwith serve it on the Claimant, all of which is subject to further orders or directions of this court. e.

In the event that the Claimant shall fail to file the Application to Amend and to serve it in accordance with the terms of this order, the Claimant’s existing claim against the Defendant as set out in the Notice of Claim, filed August 9, 2016, is hereby forthwith dismissed, without further notice to the Claimant, all for lack of jurisdiction of the Provincial Court to grant the relief sought in the Notice of Claim filed August 9, 2016, and as determined following the April 26, 2017 Application Hearing and based upon the written reasons rendered thereafter and further based upon the Claimant’s failure to abide by the terms of this order in relation to the Application to Amend, all of which is subject to further orders or directions of this court. f.

The Duncan Court Registry will be responsible for the preparation of the form of this order and the signatures of both parties and their legal counsel approving the form of this order are each waived. CORRIGENDUM - Released June 22, 2017 [1] In the Decision dated June 14, 2017, a spelling error was discovered at paragraph 17. [2] The case cited as Kani-Janjani v. Surrey (City) should properly read as Khani-Hanjani v. Surrey (City) .