Marchand v. Modern Coastal Interiors, 2019 BCPC 53

Citation: Marchand v. Modern Coastal Interiors 2019 BCPC 53 Date: 20190325 File No: C5388 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LOUIS MARCHAND CLAIMANT AND: MODERN COASTAL INTERIORS DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: Mr. Marchand Appearing for the Defendant: Ms. McCulloch Place of Hearing: Duncan , B.C. Date of Hearing: March 20, 2019

Date of Judgment: March 25, 2019 The Pleadings [ 1 ] The originating process in this action is a Notice of Claim, filed on June 29, 2018. The defendant named in the Notice of Claim is “Modern Coastal Interiors”. The following facts are alleged in the Notice of Claim:

a) On December 6, 2017, Mr. Marchand attended at a furniture store in Duncan, British Columbia and purchased some furniture, at a total price of $13,829.81;

b) The name of the store was “Modern Coastal Interiors”. It is described in the Notice of Claim as “… a sole proprietor with an address for service at 5141 Polkey Road, Duncan, British Columbia …”;

c) The furniture was delivered on February 28, 2017. There is an obvious error in the dates. It seems likely that Mr. Marchand purchased the furniture either in December, 2016 or December, 2017, and that it was delivered to him either in February, 2017 or February, 2018. Because there are various applicable statutory limitations, the difference may be important;

d) When the furniture was delivered, Mr. Marchand observed it to be defective. He reported the defects to the store, and accepted the store’s offer to repair the defects. While awaiting repairs, Mr. Marchand noticed further defects, which caused him to reject the furniture and demand a refund;

e) The store declined to refund his money;

f) The furniture remains, unused, in storage at Mr. Marchand’s home. [ 2 ] “Modern Coastal Interiors” filed a Reply, consisting of a single sentence: All work was done, furniture delivered and accepted by Louis Marchand. The Process [ 3 ] Mr. Marchand and Ms. McCulloch, the principal of Modern Coastal Interiors, attended a settlement conference on June 29, 2018, but no settlement was reached. The case was scheduled for trial on January 21, 2019, and a notice of trial was delivered to Mr. Marchand and to Ms. McCulloch by the Judicial Case Manager. Mr. Marchand attended on the trial date, but Ms. McCulloch did not. The learned trial judge granted Mr. Marchand judgment for:

a) the purchase price ($13,829.81);

b) a penalty of $1,382.98, pursuant to Rule 25 of the Small Claims Rules BC Reg 261/93 ;

c) filing fees of $163.00;

d) service costs of $75.00. The judgment debtor identified in the judgment is the named defendant; i.e. “Modern Coastal Interiors”. [ 4 ] On February 19, 2019, NEM Ventures Ltd., filed an application to set aside the judgment. That application is the first document in the court file in which NEM Ventures Ltd. is named. The application is signed by Ms. McCulloch. The grounds asserted in the application are: My absence was not wilful and I have a defence to present. My business has closed operations as of December 31/2018 due to lack of profit and has no intentions of reopening.

Please see the attached Dissolution of Partnership. Attached to the application is a document which appears to have been issued by the government of British Columbia, entitled “Dissolution of Proprietorship or Partnership Registration”, advising that the registration of Modern Coastal Interiors was dissolved on December 31, 2018. [ 5 ] The application was scheduled for hearing before me on March 20, 2019. Submissions on the Application [ 6 ] The parties’ submissions on the application focussed on the alleged defects in the furniture. Ms. McCulloch acknowledged that there was surface damage to some items.

She says that it can easily be repaired, that the manufacturer is willing to perform the necessary repairs at no cost to Mr. Marchand, and that she is willing to expedite the repairs. Mr. Marchand says that the defects are more serious than Ms. McCulloch acknowledges, that he has lost faith in her and the manufacturer, and that he wants his money back. [ 7 ] It was not suggested at the hearing before me that NEM Ventures Ltd., has been dissolved or struck off the register of companies. Analysis [ 8 ] I pointed out to Mr.

Marchand that he has a judgment against “Modern Coastal Interiors”, and that there is no such person. In

any practical sense, those facts render the present application moot. Ms. McCulloch applies to set aside a judgment which cannot be enforced. [ 9 ] Mr. Marchand did not sue either: (

i) Ms. McCulloch (as the proprietor of a business known as “Modern Coastal Interiors”); or (ii) NEM Ventures Ltd. (as a corporation carrying on business under that name). [ 10 ] There is no evidence on this application to identify the owner of the business known as “Modern Coastal Interiors”. Ms. McCulloch’s position on this application is inconsistent: (

i) she filed the application on behalf of NEM Ventures Ltd. (which appears to be a limited company); (ii) attached to the application, and tendered in support of it, is a notice of dissolution of a partnership or proprietorship (which is clearly not a limited company). The identity of the business owner could be readily ascertained by a search of the business license records at the Duncan City Hall. [ 11 ] If the owner of “Modern Coastal Interiors” was NEM Ventures Ltd., Mr.

Marchand can pursue a claim against that company, whether or not it was dissolved, and may be entitled to pursue a claim against the directors and/or shareholders of the company: Business Corporations Act SBC 2002, c 57 ,

Part 10; Carmanagh Pacific International Ltd v. Westex Timber Mills Ltd [2009] BCJ No. 1651 ; 2009 BCSC 1102 . [ 12 ] If the owner of “Modern Coastal Interiors” was Ms. McCulloch, Mr. Marchand can pursue a claim against her. A “notice of dissolution” of a proprietorship does not discharge the proprietor from the existing debts or obligations of the business. [ 13 ] If Mr. Marchand were to commence a new action against either or both of Ms.

McCulloch and NEM Ventures Ltd., the claim might be barred by the Limitation Act SBC 2012, c 13 , depending, at least in part, on whether the furniture was delivered in 2017 or 2018. [ 14 ] There is no application before me to add either NEM Ventures Ltd., or Ms. McCulloch as a party to this proceeding. If such an application were made, the applicable principles would be those set out in Sperling v. The Queen of Nanaimo [2014] BCJ No. 353 ; 2014 BCSC 326 ; [2014] 9 WWR 188 and in Anonson v. ICBC [2017] BCJ No. 1027 ; 2017 BCCA 205 .

The date of delivery of the furniture would be relevant to the application of those principles. The principles may apply differently, depending on whether the application is made to add a corporation or to add an individual. [ 15 ] The present application is moot because a decision on the application would serve no practical purpose. If I decline to set aside the default judgment, Mr. Marchand will be the beneficiary of a judgment which he cannot enforce because the judgment debtor does not exist. His only practical remedy will be to apply to add Ms. McCulloch and/or NEM Ventures Ltd. as a defendant.

If I set aside the default judgment, he will not have a judgment to enforce, and could obtain one only by applying to add Ms. McCulloch or NEM Ventures Ltd. as a defendant. In such a circumstance, the application should be dismissed: Young v. Real Estate Council of British Columbia [2018] BCJ No. 1089 ; 2018 BCSC 933 . Disposition [ 16 ] The application is dismissed as moot. March 25, 2019 __________________________ T. Gouge, PCJ