Rajakaruna v. Singh, 2022 BCPC 299

Citation: Rajakaruna v. Singh 2022 BCPC 299 Date: 20221116 File No: C88974 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: CHANDRA CHENGAMMA RAJAKARUNA and BRANDON RAJAKARUNA CLAIMANTS/ RESPONDENTS AND: SUKHDEEP SINGH dba GILL HARDY SIDING and EQUIFAX CANADA INC. DEFENDANTS/ APPLICANT RULING ON APPLICATION OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Claimants/Respondents: Fatima N. Qamar Counsel for the Defendant/Applicant, Singh: V. Zeitouni, Articled Student, as agent for Mikhael Magaril Equifax Canada Inc.: No Appearance Place of Hearing: Surrey, B.C. Surrey, B.C. September 15, 2022 Date of Ruling: November 16, 2022

INTRODUCTION [1] This is an application by the Defendant, Sukhdeep Singh (“Mr. Singh”), for permission to file a counterclaim (the“Counterclaim”) in this matter (File No. C88974, the “Current Proceeding”), pursuant to Rule 8(6) of the Small Claims Rules, B.C. Reg.261/93. [2] I heard this application on September 15, 2022. Counsel for Mr. Singh and the Claimants/Respondents (the “Rajakarunas”)made submissions.

I understand that the Defendant Equifax Canada Inc. (“Equifax”) was notified of this application, but they chose notto participate, as it does not directly concern them. [3] I reserved ruling on this application on September 15, 2022. The following are the reasons for my ruling. BACKGROUND [4] There is a lengthy procedural history to the dispute between the parties. I will not detail every step, as the various steps areoutlined in Elizabeth Korompai’s affidavit, affirmed September 7, 2022, and filed September 8, 2022. Ms. Korompai is a legal assistantwith counsel for Mr. Singh. [5] In brief, Mr.

Singh filed a notice of claim on August 24, 2020 (File No. C86578, the “Previous Proceeding”) for $5,040(excluding filing and service fees) for certain construction services that he supposedly provided to the Rajakarunas in or around June2019 (the “Original Claim”). He claimed that his invoice for $5,040 was never paid, and was outstanding since June 30, 2019. [6] On September 14, 2020, Mr. Singh obtained a default payment order for $5,321 as the Rajakarunas failed to file their reply.

OnOctober 29, 2020, a Certificate of Judgment for $5,321 was registered against title to the Rajakarunas’ property in Chilliwack, BC. OnMarch 19, 2021, the Rajakarunas managed to get an order setting aside the default payment order against them, and allowing them to filea late reply. On or about May 6, 2021, the Certificate of Judgement was released from title to their property. [7] On August 31, 2021, a settlement conference was held in the Previous Proceeding (the “Settlement Conference”), at which Mr.Singh withdrew the Original Claim and agreed to file a notice of withdrawal by September 2, 2021.

As agreed and ordered, Mr. Singhfiled his notice of withdrawal on September 2, 2021 (the “Notice of Withdrawal”). [8] The Rajakarunas filed a notice of claim in the Current Proceeding on June 7, 2022, claiming damages of $35,000 (excludingfiling and service fees) against Mr. Singh and Equifax. The Rajakarunas allege that Mr. Singh and Equifax ruined their credit rating, andas a result of the misrepresentation and negligence of Mr. Singh and Equifax, they suffered unnecessary financing costs to the tune of$35,492. Equifax filed its reply on June 21, 2022 and Mr. Singh filed his reply on July 5, 2022. [9] Mr.

Singh filed this application on August 8, 2022, in which he acknowledges that the Counterclaim is “substantially similar” tothe Original Claim. I, however, note that the Counterclaim is identical to the Original Claim. It is for the same amount and for the sameservices supposedly rendered to the same parties, the Rajakarunas. ISSUE [10] The issue to be determined in this application is whether Mr. Singh should be permitted to file the Counterclaim. PARTIES’ POSITION Mr. Singh [11] Mr.

Singh argues that at the time he withdrew the Original Claim, there was no indication that the Rajakarunas had any claimagainst him. He says the Counterclaim poses no prejudice to the Rajakarunas, as the Original Claim was “only recently withdrawn” andthat he is “within the limitation period plus one year for service if he never earlier started a claim.” He also asserts that the OriginalClaim was not “settled,” but that he withdrew it, as was his right. He says he is not trying to “reactivate” the Original Claim, but ratherthe Counterclaim he would like to file is a new claim. [12] Mr.

Singh’s counsel referred to Lui v. West Granville Manor Ltd., (BC CA). She says the “mischief” here isthat the Rajakarunas brought their claim in the Current Proceeding at the last moment – just before the limitation period for Mr. Singh tobring a counterclaim expired. She says Mr. Singh is an “involuntary participant” in the Current Proceeding, and as such he wishes topursue the Counterclaim.

She says from a cost standpoint, there is no prejudice to the Rajakarunas, as documents regarding theCounterclaim were already disclosed in the Previous Proceeding, and there is no suggestion that the Rajakarunas have lost any of thosedocuments. The Rajakarunas [13] The Rajakarunas state that Mr. Singh should not be permitted to file the Counterclaim, as it is same as the Original Claim, andthe Original Claim was filed, dealt with, and settled. They say that despite Mr. Singh’s assertion that it was not settled, there is aSettlement Conference Record that confirms that Mr.

Singh withdrew the Original Claim at the Settlement Conference. [14] Counsel for the Rajakarunas says that it can be reasonably assumed that Mr. Singh did not have a course of action, which is whyhe withdrew the Original Claim. She says that at the time Mr. Singh withdrew the Original Claim and filed the Notice of Withdrawal, hewas represented by legal counsel, and, therefore, he was fully aware of the consequences of filing the Notice of Withdrawal. She saysMr.

Singh was not under any undue influence to sign or file the Notice of Withdrawal. [15] Counsel for the Rajakarunas submits that since the Original Claim proceeded by way of a Settlement Conference, and the Notice

of Withdrawal was the result of the Settlement Conference, it is the Rajakarunas’ position that the Original Claim was properly adjudicated. She says, the doctrine of res judicata applies, as the parties are the same, the issue is the same, and the intent of the Notice of Withdrawal was final, as it was filed as a result of the Settlement Conference conducted in the presence of a judge. [ 16 ] Counsel for the Rajakarunas referred to Northwest Waste Systems Inc. v. Szeto , 2003 BCPC 431 (“ Szeto ”).

She says that the court, at para. 41, concluded that “the Provincial Court has an inherent procedural jurisdiction to set aside a Notice of Withdrawal if the evidence establishes an abuse of process.” The court found no abuse of process on the facts of Szeto . [ 17 ] Counsel for the Rajakarunas also referred to Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd. , 2022 BCSC 1121 , wherein, at para. 65, the court discussed the two elements the person alleging abuse of process must prove, namely: (

a) collateral and improper purpose, such as extortion; and (

b) a definite act or threat, in furtherance of a purpose not legitimate in the use of the process. [ 18 ] Counsel for the Rajakarunas says that Mr. Singh has not pled any abuse of process. She reiterates that Mr. Singh filed the Notice of Withdrawal after the Settlement Conference, and that there can be no doubt that neither of the two elements of abuse of process applies. [ 19 ] She says although Mr. Singh says that he is not trying to reactivate the Original Claim, but wants to bring a new counterclaim, it is the same claim and that Mr.

Singh is in fact trying to reactivate the Original Claim that was settled. [ 20 ] She submits that if Mr. Singh is permitted to file the Counterclaim, it would be against public policy and the doctrine of res judicata .

She says it would be tantamount to allowing a disgruntled individual who withdrew their claim to essentially get a “second kick at the can.” DISCUSSION [ 21 ] At the outset, with some hesitation, and without any disrespect to counsel, I say that the parties’ submissions could have been more thorough. [ 22 ] Therefore, I will refer to some cases that assist in the determination of the issue at hand. [ 23 ] I did not consider it necessary to seek further submissions from the parties, given the uncontroversial nature of the issue at hand, the nominal amount of the Counterclaim at issue, and the lengthy procedural steps the parties have endured to date (I hasten to add, of their own volition). [ 24 ] The starting point in my discussion, of course, is Rule 8 of the Small Claims Rules , which reads, in part, as follows: Rule 8 — Changing or Withdrawing a Claim or Reply, Etc.

Withdrawal of claim or other filed document

(4) A party may withdraw a claim, counterclaim, reply or third party notice at any time by (

a) filing a copy of the notice of withdrawal at the registry, and (

b) promptly serving the notice on all the parties who were served with the claim, counterclaim, reply or third party notice. Effect of withdrawing

(6) A party who withdraws a claim, counterclaim, reply or third party notice may not at any time proceed with it or file another notice with respect to the claim or counterclaim without the permission of a judge (see Rule 16(7)). [ 25 ] Rule 16(7) sets out the procedure for how to apply to a judge. [ 26 ] Rule 8(4) allows a party to unilaterally withdraw a claim, counterclaim, reply or third party notice at any time by filing a copy of the notice of withdrawal at the relevant court registry and serving it on all the applicable parties. Consent of opposing parties or permission from the court is not necessary.

Upon withdrawal, the court file is closed. [ 27 ] At the Settlement Conference, Mr. Singh told the Rajakarunas and the court that he will withdraw the Original Claim as of that date, and he was ordered to file the Notice of Withdrawal by September 2, 2021, which he did. The purpose of filing a notice of withdrawal is, of course, to indicate to the parties, to the court registry, and to the public that the matter is at an end.

After this step, the court file is closed. [ 28 ] Permission from the court, under Rule 8(6) , is necessary to set aside a filed notice of withdrawal and pursue the original claim, counterclaim, reply or third party notice, in which case, the original file would be reopened to continue with the matter. [ 29 ] In Szeto , the court, among other things, dealt with whether it had jurisdiction to set aside a notice of withdrawal.

It concluded, at para. 20, that it had “an inherent procedural jurisdiction to do so in an appropriate case even in the absence of an express rule so allowing.” [ 30 ] At paras. 21 and 22, the court in Szeto said: [21] The Provincial Court is a Court of statutory jurisdiction, deriving its substantive and procedural jurisdiction from the Small Claims

Act and Small Claims Rules: see sections 2 and 3 of the Small Claims Act. It also has a limited form of inherent procedural jurisdiction todeal with matters of procedure to ensure that justice is done. [22] I reiterate my comments in Cimaco International Sales, Inc. dba Cimaco Travel v.

British Airways PLC, 2002 BCPC 226 ,2002 BCPC 0226: [para 15] I first note, as have many judges of this and higher courts, that the Provincial Court, Small Claims, is a creation of statute andtakes its substantive jurisdiction from the Small Claims Act, R.S.B.C. 1996, c. 430, and its procedural jurisdiction from the Act and theSmall Claims Rules: see Lou Guidi Construction Ltd. v. Fedick, [1994] B.C.J.

No. 2409 per Stansfield PCJ. [para 16] There is, in addition, a narrow inherent procedural jurisdiction complementary to the powers specified in the Small Claims Actand Rules which may be invoked to achieve the purpose of the Small Claims Act: see R. K. v. McBride, [1994] B.C.J. No. 2791 perMondin PCJ citing Craig v. Gidyk, [1994] B.C.J. No. 1591 per Stansfield PCJ. [31] In this case, Mr. Singh is not applying to set aside the Notice of Withdrawal. He is applying to file a new counterclaim, albeit forthe same amount, for the same services, and against the same parties as in the Original Claim.

This scenario is also covered by Rule 8(6),which requires the permission of a judge to “file another notice with respect to the [Original] claim.” [32] Counsel for the Rajakarunas argued that the doctrine of res judicata and public policy apply to prevent Mr. Singh from re-litigating the Original Claim. [33] The doctrine of res judicata is complex, and I do not consider it necessary to engage in any lengthy discussion about it in thecontext of the application before me. In simple terms, this court described this doctrine in Richardson v.

Royston et al, 2009 BCPC 141,at para. 7, as follows: [7] The term “res judicata” is a Latin phrase meaning “a matter adjudged” or some issue or dispute that has already been judiciallydecided or settled by a prior judgement of a court. This doctrine seeks to prevent a party who is displeased with the result of a given casefrom bringing the same lawsuit over and over again, hoping for a more pleasing result from a different judge… [34] I believe this is the distinction Mr.

Singh’s counsel was trying to make when she said the Original Claim was not “settled” butwas “withdrawn as a matter of right.” In other words, I believe she was trying to articulate that the Original Claim was not “judiciallydecided or settled” by a prior judgment of a court, even though the withdrawal occurred during the Settlement Conference. [35] The Federal Court of Appeal (the “FCA”) in Philipos v.

Canada (Attorney General), 2016 FCA 79 (“Philipos”), at para. 9, drewa distinction between “discontinuance” and “dismissal.” It said: [9] The Rules do not expressly provide for the resurrection and continuance of a proceeding after discontinuance under Rule 165.However, discontinuance is different from dismissal in that theoretically a party can resurrect and continue a discontinued proceeding orstart a new proceeding.

By providing for discontinuance under Rule 165, impliedly the Rules permit a party to pursue those options. [36] Rule 165 of the Federal Court Rules, SOR/2004-283, s. 2, states as follows: Discontinuances 165 A party may discontinue all or part of a proceeding by serving and filing a notice of discontinuance. [37] In Philipos, the appellant appealed the Federal Court’s judgment (relating to the appellant’s transportation security clearance) tothe FCA by filing a notice of appeal, which he soon after discontinued.

Later, he wanted to resurrect his appeal, and he applied for leaveto do so. [38] I found the FCA’s discussion in Philipos immensely helpful in determining the issue before me. Therefore, I will quote at somelength from this decision. [39] Even though the terms at issue, namely, “discontinuance” in the Federal Court Rules and “withdrawal” in the Small ClaimsRules are different, the concepts are the same.

Therefore, I find that the FCA’s discussion around “discontinuance” is equally applicableto the term “withdrawal” in the small claims context. [40] At paras. 13 to 23, the FCA in Philipos said, in part, as follows: [13] Five things can happen to proceedings once they are started: • Self-regulation. . . . • Court regulation. . . . • Suspension. Proceedings can be suspended through the issuance of a stay under s.50 of the Federal Courts Act, R.S.C. 1985, c. F-7; Mylan Pharmaceuticals ULC v. AstraZeneca Canada, Inc., 2011 FCA 312, 426 N.R. 167. A stay expires according to the terms set bythe Court.

Unless the stay is renewed or the proceeding is dismissed, the proceeding resumes after the expiration of a stay. While a stayis in place, the proceeding still subsists and so the parties must have every expectation that their cases will proceed through todetermination. • Discontinuance. This is more than suspension. Discontinuance terminates the proceeding and closes the court file. After theunilateral filing of a notice of discontinuance under Rule 165, parties need not take any further steps.

Discontinuance is not adetermination on the merits, so it does not trigger the bar against relitigation expressed by the doctrine of res judicata.Theoretically, a party may start a new proceeding concerning the same subject matter: Audet v. Canada, 2002 FCA 130, 289 N.R.

382; The “Kronprinz” (1887), 12 A.C. 256, 56 L.T. 345 (H.L.). And theoretically a party can resurrect and continue a discontinuedproceeding, as the appellant seeks to do here. But unlike a stay, the unilateral filing of a notice of discontinuance tells everyone theycan regard the proceeding as over. • Determination. The Court may determine proceedings in certain interlocutory motions or upon hearing the merits of theapplication, action or appeal, as the case may be.

The matter is then final, subject to an appeal to a higher court and subject to a brief,limited jurisdiction of the Court to fix slips or errors (Rule 397) or set aside or vary the order or judgment where there are markedlychanged circumstances (Rule 398 and see, e.g., Del Zotto v. Canada (M.N.R.), (FCA), [1996] 2 C.T.C 22, 195 N.R.74 at paragraph 12 (F.C.A.)). A determination may also be set aside where there is a fundamental failure of natural justice or fraud (Rule399). Following determination, the proceeding is over and the court file is closed.

After the time for bringing any appeals has expired,later proceedings concerning the same subject matter will be struck according to the doctrine of res judicata. [14] This spectrum shows that there is very little difference between discontinuance and determination. Both discontinuanceand determination are terminations meant to be final. Both close the court file. Both engender expectations of finality. [15] One difference, mentioned above, is the theoretical possibility that after discontinuance a new proceeding can be broughtconcerning the subject-matter of the discontinued proceeding.

But that is not so realistic a possibility. An attempt to start a newproceeding may be met with, for example, a motion to strike based on the expiration of a statutory limitation period or an abuse ofprocess (see, e.g., Lifeview Emergency Services Ltd. v.

Alberta Ambulance Operators’ Association (1995), 101 F.T.R. 43 at para. 13), orthe unavailability of an order granting an extension of time when an extension is needed, as in the case of applications for judicialreview. [16] These considerations underscore the point that discontinuances are not suspensions but rather terminations with consequences.This tells us much about the criteria that must be applied when a party seeks to resurrect and continue a discontinued proceeding. [17] Finality matters.

Discontinuance is an economical procedure for terminating proceedings that are no longer in dispute orworthy of prosecution. If expectations of finality engendered by discontinuance are not enforced strictly and discontinuances canbe easily reversed, there will be no economy. Opposing parties will have no choice but to continue to incur expenses, collectevidence and prepare arguments for hearing in case the proceeding resumes one day.

Discontinuance would become nothingmore than a form of suspending proceedings much akin to a stay. [18] Determinations are not lightly reversed; the same should be so for discontinuances. Those who decide to unilaterallydiscontinue decide not to suspend their proceeding but to terminate it. They should be held to their decision.

Only circumstancesthat strike at the root of the decision to discontinue can allow a discontinued proceeding to be resurrected and continued. [19] The case law of other jurisdictions supports these observations and allows for the resurrection and continuation of discontinuedproceedings only in exceptional circumstances: see, e.g., Daniele v. Johnson (1999), … (ON SCDC), 45 O.R. (3d)498, 123 O.A.C. 186 at para. 21 (Div. Ct.); Singh v. Street (1990), … (SK CA), 84 Sask. R. 161, [1990] 5 W.W.R. 518at para. 14 (C.A.); Yancey v. Neis, 1999 ABCA 272, 73 Alta. L.R. (3d) 239 at para. 23.

The British Columbia Court of Appeal, typicalof courts across Canada, has suggested that a discontinued proceeding can almost never be resurrected: Because there should be an expectation of finality flowing from the filing of a notice of discontinuance or abandonment, such astep is a serious matter from which, in the absence of exceptional circumstances of a compelling nature, the court will not relievethe appellant. (Warford v. Zyweck, 2002 BCCA 221, 1 B.C.L.R. (4th) 41 at para. 3; see also Pacific Centre Ltd. v.

Micro Base Development Corp.(1990), … (BC CA), 49 B.C.L.R. (2d) 218, 43 C.P.C. (2d) 302 at para. 19 (C.A.).) [20] Only some fundamental event that strikes at the root of the decision to discontinue can warrant the resurrection andcontinuation of a discontinued proceeding.

Examples include the procurement of discontinuance by fraud, mental incapacity ofthe party at the time of discontinuance, or repudiation of a settlement agreement that required a proceeding to be discontinued. [21] Even where a fundamental event of that sort has happened, we must be satisfied that the discontinued proceedings sought to beresurrected have some reasonable prospect of success. There is neither sense nor judicial economy in resurrecting a discontinuedproceeding destined to fail. . . . [22] Further, we must also consider the prejudice that may result if a discontinued proceeding is resurrected.

For example, someonemight have taken significant steps relying on a discontinuance, such as carrying out obligations under a trial judgment after the appealfrom that judgment has been discontinued: Warford v. Zyweck, 2002 BCCA 221, 1 B.C.L.R. (4th) 41 at para. 7. Prejudice can also resultfrom the destruction of files, the cessation of evidence collection or the disappearance of witnesses: Williams v. Personal Insurance Co.of Canada, 2004 NSSC 73, 222 N.S.R. (2d) 270 at paras. 15-20.

In the case of applications for judicial reviews and appeals therefrom,the public interest requires prompt prosecution and determination: Canada (Attorney General) v. Larkman, 2012 FCA 204, 433 N.R. 184at paras. 86-89; Federal Courts Act, above, s. 18.4. The categories of prejudice are not closed: other types of prejudice may cause theCourt to exercise its discretion against allowing a party to resurrect a discontinued proceeding. [23] I do not foreclose the possibility that other considerations might foreclose resurrection of a discontinued proceeding.

The FederalCourts have a plenary power to manage their practices and procedures, police the conduct of proceedings, and prevent abuses of theirprocesses. That power stands ready to be exercised judicially whenever called for. [the highlighted portions are my emphasis] [41] As the FCA discusses at para. 15, there is the theoretical possibility that after discontinuance, a new proceeding can be broughtconcerning the subject-matter of the discontinued proceeding. That is what Mr. Singh is attempting to do here. But, as the FCA notes,that is not so realistic a possibility. Mr.

Singh has not provided any compelling reason that strikes at the root of his decision to withdraw

the Original Claim that can now warrant the bringing of the Counterclaim. Examples of compelling reasons include, but are not limited to, fraud, mental incapacity, mistake, misapprehension, and abuse of process. To the contrary, Mr. Singh was represented by legal counsel prior to, and at, the Settlement Conference. I have no reason to doubt that he was not properly advised of the nature and consequences of filing the Notice of Withdrawal. He does not allege that he was not properly advised or that he was subject to any abuse of process. [ 42 ] I find no merit in any of the arguments Mr. Singh’s counsel made.

It appears that Mr. Singh has simply had a change of heart, since he has, as his counsel put it, “been drawn into” the Current Proceeding “as an involuntary participant.” That is not a compelling reason to permit him to file the Counterclaim, detracting from the expectation of finality that is engendered from the filing of a notice of withdrawal. [ 43 ] Barring exceptional circumstances of a compelling nature that strike at the root of the decision to withdraw, I am of the view that withdrawals must be strictly enforced for economy, consistency, and predictability.

CONCLUSION [ 44 ] In the end, I am not satisfied that I have any reason to exercise my discretion to permit Mr. Singh to file the Counterclaim. ORDER [ 45 ] Mr. Singh’s application for permission to file the Counterclaim is dismissed. By the Court, _____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia