Pomfret et. al. v. Van Vugt et. al. Date:, 2014 BCPC 167

Citation: Pomfret et. al. v. Van Vugt et. al.

Date: 20140728 2014 BCPC 0167 File Nos: 21708, 21826, 21838, 21839, 21841, 21842, 21854, 21855, 21867, and 21870 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: STAN POMFRET (Claimaint in files 21708 and 21826) TREVIS BLAINE KLEPARCHUK (Claimaint in files 21838 and 21870) MICHAEL LEOPOLD (Claimaint in file 21839) DEAN ROBERTS (Claimant in file 21841) WILLIAM BROWN (Claimant in file 21842) TREVOR BELL (Claimant in file 21854 and 21855) VINCENT JOHANSSON (Claimant in file 21867) CLAIMANTS AND: BARB VAN VUGT (Defendant in file 21708) STEPHANIE LAWSON (Defendant in file 21826) HARRY KHULLER (Defendant in file 21838) RYAN GRIFFITH (Defendant in file 21839) JENNIFER HAMILTON (Defendant in file 21841) RON MANDZAK (Defendant in file 21842) SHANNON BREARLEY (Defendant in file 21854) BROOKE KASSEN (Defendant in file 21855) JENNIFER HARVEY (Defendant in file 21867) JASON STRIJACK (Defendant in file 21870) DEFENDANTS RULING ON APPLICATION OF THE HONOURABLE JUDGE K.

D. SKILNICK

Appearing on their own behalf: Each Claimant appeared on his own behalf by telephone Appearing for the Defendants: L. M. G. Nevens Place of Hearing: Abbotsford , B.C. Date of Hearing: July 21, 2014 Date of Judgment: July 28, 2014 Introduction [ 1 ] An application has been brought under Rule 16(6) (

o) of the Small Claims Rules (B.C. Reg. 261/93 ) by the Defendants in ten separate Small Claims actions asking for dismissal of each of the claims. The Defendants take the position that the Provincial Court of British Columbia does not have the jurisdiction to determine these claims and that none of the claims disclose any triable issue.

All of the Claimants oppose the applications for dismissal on both procedural and substantive grounds. [ 2 ] All of the Claimants are federally incarcerated offenders who are serving their sentences at Mission Medium Security Institution in Mission, BC, with the exception of the Claimant Trevis Blaine Kleparchuk, who was recently transferred to Pacific Institution in Abbotsford.

All of the Defendants are employees of the Correctional Service of Canada, some in the capacity of institutional parole officers and the rest in other capacities, including one Warden and one Deputy Warden. [ 3 ] All ten applications were heard on the same day, with five being heard in the morning and five in the afternoon. The Claimants appeared by telephone. Although each of the Claimants was given the opportunity to be heard, their submissions were made primarily by Mr. Pomfret in the morning and by Mr. Bell in the afternoon.

Each made very able submissions and directly addressed the issues relevant to these applications. The Claimants’ intention in bringing these claims is to address systemic problems which exist with the current grievance adjudication process within the federal correctional service, and they are hopeful that the small claims court structure can provide them with an expedient and inexpensive alternative way to address those grievances. [ 4 ] I will address the arguments heard as follows: 1. Preliminary objection under rule 16 2. Timing of the application (before or during a settlement conference) 3.

Summary of Claims 4. Do the claims disclose a triable issue? 5. Does this court have jurisdiction to hear these claims? [ 5 ] Following are the reasons for the order made determining these applications. 1. Preliminary Objection under Rule 16 [ 6 ] The Claimants raised a preliminary objection to the hearing of these applications, under Rule 16(9) of the Small Claims Rules . That rule reads as follows:

(9) At least 7 days before the date set for hearing an application under sub rule (7), the applicant must serve a copy of the application, and the affidavit if required (see Rule 17 (2)), on each party that would be affected by the order requested unless the application is for a default order because no reply to a third party notice has been filed. [ 7 ] In each case, the Claimants were served with a copy of the Application, the Affidavit filed in support, and the Applicant’s Written Submissions, well over seven days before the date that this matter was set for hearing. On July 5, 2014, Mr.

Pomfret wrote to counsel for the Defendants requesting a copy of the case law that she had referred to in her written submissions. Most of these cases were copied and bound into a book of authorities. Unfortunately, this was not delivered to the Claimants until Friday, July 18, 2014, in part due to the fact that counsel was on vacation. [ 8 ] The Defendants have complied with Rule 16(9) because all this rule requires is for the Application and the supporting affidavit to be served on the Claimants at least seven days before the hearing. This was done here.

Applicants are not required to file books of authorities, and often when they do, they are not exchanged until the date of the hearing. (Good counsel will exchange them earlier, as was done here, so that the other side has some opportunity in advance of the hearing to look at the cases.) Here the cases were cited in the Written Submission that was delivered with the Application.

An applicant is not required to provide copies of the cases, but in this case counsel did so and provided them in advance of the hearing date. [ 9 ] There has been no failure to comply with Rule 16(9) here and the Applications should not be dismissed or adjourned for this reason. The Claimants were able to focus on the important issues of the Applications. They were also able to point out helpful portions of the cases supplied by counsel for the Defendants as well as refer to their own cases (copies of which were not provided to counsel for the Defendants). The applications should not be dismissed on this ground.

2. Timing of the Application (Before or During a Settlement Conference?) [ 10 ] When the Small Claims Rules were written, it was anticipated that a settlement conference would be what the late Chief Judge Stansfield of this court called “one stop shopping”. In Belanger v. AT&T Canada Inc . [1994] B.C.J. No. 2792 , Chief Judge Stansfield (prior to his appointment as Chief Judge) wrote that applications for

summary determination of a claim or for the dismissal of one should usually be brought before the Settlement Conference Judge. He compared applications for

summary judgement with Rule 18A applications in Supreme Court. Of the latter, he wrote: While no doubt such applications have their rightful place in the practice of that court, they frequently will be inconsistent with a "just, speedy, inexpensive and simple" resolution of claims in this court. That is especially so as a significant percentage of litigants are unrepresented and ill-equipped to deal with matters within the structured environment of chambers applications.

Even where parties choose to be represented by counsel, if the court permits proceedings beyond the settlement conference and trial there is a substantial risk that the cost of representation will be out of proportion to the amount in issue… One of the matters which is contemplated directly by Rule 7(14) is dismissal of a claim.

While there remains a discretion for a judge in Chambers to hear an application to dismiss under Rule 16 , in my view the proper time for making such an application is at the Settlement Conference. (Emphasis added) [ 11 ] Case law suggests that the proper time for bringing an application such as the one brought by the Defendants here is usually at the settlement conference.

But as Chief Judge Stansfield pointed out in Belanger, the discretion still exists for me to rule on the application, especially if I am satisfied that doing so is in keeping with the direction contained in section 2(1) of the Small Claims Act to try to resolve claims “in a just, speedy, inexpensive and simple manner.” [ 12 ] In this instance, hearing the application in advance of the settlement conferences is actually more in keeping with the Small Claims Court Act ’s direction in section 2(1).

Firstly, if the issues can be decided at this time, they may avoid the requirement for at least ten (and possibly more) small claims settlement conferences. If the issues raised in the application can be resolved now, this may result in a savings of significant time and expense, both for the court, as well as for the litigants. Here both the Claimants as well as counsel for the Defendants came prepared to argue the merits of the application.

Almost a full day of court time was used to argue the motion, and I am reluctant to duck this issue because of the effort that the parties have gone into preparing and presenting their arguments, and because it will save further time and expense to rule on the issue now, instead of making the parties reargue it later at ten individual settlement conferences. [ 13 ] Where, as in this case, there are multiple actions that involve the same point or points of law, and the parties have argued them ably, it is a reasonable exception to decide the application in advance of the Settlement Conference because the significant amount of time and expense which it saves makes it consistent with the Small Claims Act ’s direction to resolve claims “in a just, speedy, inexpensive and simple manner.” For this reason I will proceed to rule on the application at this time. 3.

Summary of Claims [ 14 ] These applications involve ten separate small claims court files, some of which were brought by the same Claimant. I will now summarize each of these claims, in order of the date that each was commenced. They are all very similar in the claims they raise. Each asks for damages in the sum of $25,000 as well as costs for filing fees and service fees. In each case the Defendant has filed a Reply containing a general denial.

(1) Stan Pomfret v. Barb Van Vugt: Court File 21708 [ 15 ] This claim was filed on November 21, 2013. It states: “Barb Van Vugt violated policy - ref. Professional Conduct in the Correctional Service of Canada.” It concludes “Ref: Roncarelli v. Duplessis, SCR 121”. The original claim also alleged violations of certain rights under the Canadian Charter of Rights and Freedoms , but those portions of the claim were deleted in an Amended Claim filed on May 12, 2014. The Claim alleges that the violation of policy occurred from “November 11 to date (on going).”

(2) Stan Pomfret v. Stephanie Lawson: Court File 21826 [ 16 ] This claim was filed on February 14, 2014. It states: “Stephanie Lawson violated policy - ref. Professional Conduct in the Correctional Service of Canada.” It also concludes “Ref: Roncarelli v. Duplessis, SCR 121”. The Claim alleges that the violation of policy occurred from “Aug 2013 to date (on going).”

(3) Trevis Blaine Kleparchuk v. Harry Khuller: Court File 21838 [ 17 ] This claim was filed on March 3, 2014. It states: “Harry Khuller violated policy - ref. Professional Conduct in the Correctional Service of Canada.” It also concludes “Ref: Roncarelli v. Duplessis, SCR 121”. The Claim alleges that the violation of policy occurred on November 28, 2013.

(4) Michael Leopold v. Ryan Griffith: Court File: 21839 [ 18 ] This claim was also filed on March 3, 2014. It states: “Ryan Griffith violated policy - ref. Standard of Professional Conduct in the Correctional Service of Canada Ref: Roncarelli v. Duplessis, SCR 121”. The Claim alleges that the violation of policy occurred on November 22, 2013.

(5) Dean Roberts v. Jennifer Hamilton: Court File 21841 [19] This claim was filed on March 4, 2014. It alleges that Dean Roberts “violated policy - Ref: Professional Conduct in theCorrectional Service of Canada Ref: Roncarelli v. Duplessis, SCR 121”. The Claim also alleges that the violation of policy occurred onNovember 22, 2013.

(6) William Brown v. Ron Mandzak: Court File 21842 [20] This claim was also filed on March 4, 2014. It alleges that “Ron Mandzak violated policy Ref: Professional Conduct in theCorrectional Service of Canada. Ref: Roncarelli v. Duplessis, SCR 121”. This Claim alleges that the violation of policy occurred onFebruary 7, 2014.

(7) Trevor Bell v. Shannon Brearley: Court File 21854 [21] This claim was filed on March 18, 2014. It alleges that Shannon Brearley “violated policy - Ref: Professional Conduct in theCorrectional Service of Canada. Ref: Roncarelli v. Duplessis, (SCC), [1959] SCR 121”. The Claim alleges that theviolation of policy occurred in February of 2014.

(8) Trevor Bell v. Brooke Kassen: Court File 21855 [22] This claim was also filed on March 18, 2014. It alleges that Brooke Kassen “violated policy - Ref: Professional Conduct in theCorrectional Service of Canada. Ref: Roncarelli v. Duplessis, (SCC), [1959] SCR 121”. The Claim also alleges that theviolation of policy occurred in February of 2014.

(9) Vincent Johansson v. Jennifer Harvey: Court File 21867 [23] This claim was filed on March 27, 2014. It alleges that Jennifer Harvey “violated policy - Ref: Professional Conduct in theCorrectional Service of Canada. Ref: Roncarelli v. Duplessis, (SCC), [1959] SCR 121”. The Claim alleges that theviolation of policy occurred in December of 2013.

(10) Trevis Blaine Kleparchuk v. Jason Strijack: Court File 21870 [24] This claim was filed on April 2, 2014. It alleges that “Jason Strijack violated policy - Ref: Professional Conduct in theCorrectional Service of Canada. Ref: Concarelli (sic) v. Duplessis SCR 121”. The Claim also alleges that the violation of policy occurredon March 12, 2014. 4.

Do these Claims Disclose a Triable Issue? [25] The first objection to these claims made by the Defendants is that they are “devoid of material facts that could underpin a validcause of action.” Counsel for the Defendants submits that each claim “consists of a bald assertion that fails to specify what wrongs arealleged to have been committed” by each Defendant. [26] The Defendants state that they were relying on instructions provided in Form 1 of the Small Claims Rules which is provided toclaimants when filing claims in Small Claims Court. On the page entitled “Making a Claim”, in the

section entitled “What Happened?”the instructions read as follows: “You do not need to tell everything about your case here. You must tell just enough to let the defendant know what the case is about.Keep your description brief. You will have a full opportunity to present all the facts and provide supporting documents at a settlementconference or trial.” [27] The Defendants state that they were simply following the instructions on Form 1.

Rule 1(1) of the Small Claims Rules directsthat all prospective claimants “must complete a notice of claim (Form 1) following the instructions on the Form” and the Claimants heresay that is precisely what they did. While the Claimants certainly kept their claims brief, the portion of the instructions which they didnot follow is to “tell just enough to let the defendant know what the case is about” as required in the same instructions.

If this was theonly problem with these claims, it could be cured simply by having the Claimants amend their claims to include more particulars or whatexactly each Defendant did that was a violation of policy. However I will address the Defendants’ other objections. 5. Does the Court Have Jurisdiction to Hear These Claims? [28] The more difficult problem which the Defendants raise is whether or not the Small Claims has the jurisdiction to hear a claimalleging a violation of CSC policy, and whether the court can award damages if such a violation is proven? On behalf of the Claimants,both Mr. Pomfret and Mr.

Bell have clearly stated that their cause of action comes from a violation of policy, not any sort of breach. It isacknowledged that the Claimants and Defendants are not parties to any contract with one another. [29] Section 3(1) of the Small Claims Act provides that this court has jurisdiction to hear claims within the court’s monetary limit of$25,000 that are 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. [30] A claim against a CSC employee because that person has violated policy clearly does not fall within the last three of these. Theclaims have nothing to do with personal property, and there is no agreement between the parties, so the remedy of specific performanceis not available here. An order for specific performance is a court order that requires a party who is in breach of a contract to performwhat was promised in the contract. Specific performance can be ordered only in cases where damages are an inadequate remedy. Thereare two glaring reasons why these actions are not ones for which subsection 3(1)(

c) applies: (1) there is no contract between eachclaimant and defendant, and (2) the Claimants are asking for $25,000 in damages and therefore the claims are ones for which theClaimants believe that damages is an adequate remedy. [31] Each of the Claimants is seeking $25,000 in damages, and in that sense these are claims for damages. This court has thejurisdiction to hear claims for damages of up to $25,000. But counsel for the Defendants takes the position that this court has nojurisdiction to award damages simply because someone else’s employee has violated policy.

A court having jurisdiction to do so canaward damages to compensate a claimant against a defendant who has either breached a contract with the claimant, or who hascommitted a tort against the claimant. A tort is a breach by a defendant of a duty owed by the defendant to the claimant. The claimantmust prove (

a) the existence of a legal duty placed on the defendant and owed to the claimant, (

b) a breach of that duty, and (

c) damageas the proximate result of that breach. These Claims do not allege or suggest the commission of any tort. [32] Counsel for the Defendants states that violation of policy by a CSC employee cannot form the basis of a claim for damages. Insupport of this position, counsel relies on the Supreme Court of Canada’s decision in Holland v. Government of Saskatchewan 2008 SCC42. In that case, Chief Justice McLachlin wrote, at paragraph 9: The law to date has not recognized an action for negligent breach of statutory duty.

It is well established that mere breach of a statutoryduty does not constitute negligence: The Queen in right of Canada v. Saskatchewan Wheat Pool, (SCC), [1983] 1 S.C.R.205. The proper remedy for breach of statutory duty by a public authority, traditionally viewed, is judicial review for invalidity. [33] Judicial review is a remedy only available in a superior court. This court does not have any jurisdiction for judicial review. [34] It is understandable why this response does not satisfy the Claimants’ concerns. The cost of judicial review is one factor.

TheClaimants also view the suggestion from Defendants’ counsel that the Claimants’ proper remedy is to file a grievance under the OffenderComplaints and Grievance process contained in Commissioner’s Directive Number CD 081 as unhelpful. Both Mr. Pomfret and Mr. Bellhave directed my attention to the Federal Court of Canada decision of Speidel v. Canada 2012 FC 958 , 2012 FC958, in whichthe Honourable Madam Justice Mactavish referred to a number of criticisms of the grievance process set out in CD 081. They also notethat CD 081 itself allows for the seeking of alternate legal remedies.

Specifically, paragraph 45 of CD 081 reads as follows: “A grievor may pursue an alternate legal remedy, such as a legal proceeding before the courts or the Canadian Human Rights Tribunal,for his/her complaint or grievance in addition to the offender complaint and grievance process. In such cases, the complaint or grievancewill be deferred in OMS and handled in accordance with the procedures outlined in GL 081-1 – Offender Complaint and GrievanceProcess.” (Emphasis added). [35] The Claimants take the position that their right to bring these actions comes from the Supreme Court of Canada’s decision ofRoncarelli v.

Duplessis (SCC), [1959] S.C.R. 121. In that case, the plaintiff, a proprietor of a restaurant in Montreal hada liquor licence. His licence was arbitrarily cancelled at the instigation of the defendant, the Premier of Quebec, for improper reasons.The defendant, without legal authority, had ordered the Quebec Liquor Commission to cancel the liquor license before its expiration.The Supreme Court of Canada, in a 6-3 decision, upheld the trial court’s decision to award the Plaintiff damages. The six judges whosided with the plaintiff differed on the reasons for their decision.

Three judges wrote that Duplessis had ordered the cancellation whichwas outside his authority as premier. Two judges stated that although Duplessis had the power to order the cancellation, he had done soin bad faith. The sixth judge concluded that Duplessis was not entitled to immunity as a public official. The Plaintiff was awarded$33,123.53 in damages, plus costs. [36] Roncarelli is a clear example of a case where damages were awarded because the defendant had committed an economic tortagainst the claimant. In Roncarelli the plaintiff was able to prove (

a) the existence of a legal duty placed on the defendant and owed tothe claimant, (

b) a breach of that duty, and (

c) damage as the proximate result of that breach. This is different from this case, where theClaimants are adamant that they are not alleging any breach. It is their position that where there is a violation of policy, damages shouldbe owed to them. The error in this reasoning is that damages cannot be awarded unless there has been a breach of contract or thecommission of a tort, from which the damages flow. Here the Claimants allege neither. [37] Counsel for the Defendants also takes the position that the Claims must fail because of the operation of the Crown Proceedingsand Liability Act.

Section 21 of that Act restricts jurisdiction for claims against the Crown to the Federal Court and the BC SupremeCourt. Here the Claimants are not suing the Crown and it is their position that this Act has no application to their claims. But the Crownrelies on section 22(2) of the Act which reads as follows: A court shall not, in any proceedings grant relief or make an order against a servant of the Crown that it is not competent to grant ormake against the Crown. [38] The British Columbia Supreme Court has, in two decisions (Der v. Giles 2003 BCSC and Emond v. Michell 2008 BCSC 111),

held that section 22(2) does not take away this court’s jurisdiction to decide an claim against a Crown employee in tort. If the Correctional Service of Canada had been named as a defendant in these actions, section 21(1) of the Act would prevent the claim from being brought in this court. But in this case, where the Claimants have sued the individual CSC employees but not CSC as well, the Claimants are not prevented from bringing their claims in this court.

By doing so, the Claimants forego the right to have CSC found liable for the actions of these Defendants. [ 39 ] One of the functions of the judge at a Small Claims settlement conference is to serve as a gatekeeper, determining which claims have a triable issue and which can be decided without the expenditure of trial time. Currently, trial time is a precious resource in this court. In criminal courts charges are sometimes stayed because trial time cannot be allocated within a reasonable time.

In family court, children sometimes remain in foster care longer than they deserve to because early court dates are not available to resolve their status. Accordingly, any measures which can prune trials with no reasonable chance of success are beneficial to everyone so that court time can best be utilized optimally. Dismissal of a claim before trial is a remedy that should only be used in cases where it is clear at the outset that one of the grounds for dismissal of a claim set out in Rule 7(14)(

i) exists. I find this to be such a case. This court lacks the jurisdiction to award damages for the wrong complained of and therefore there is no triable issue disclosed in these claims. [ 40 ] To summarize all of this more succinctly: 1. The Claimants are not prevented from bringing their claims in this court simply because the Defendants are CSC employees engaged in the course of their employment, but by doing so they forego the right to sue CSC for the same subject matter. 2.

In order for this court to make an order for damages against the Defendants, it must be shown that either the Defendants are in breach of a contract with the Claimants, or that the Defendants have committed some tortious act against the Claimants. A tort requires a breach of a duty owed to the Claimants which results in damages. The Claimants here are adamant that they are not alleging any breach of any sort. Their only complaint is that the individual Defendants violated CSC policy. 3. Violation of policy is not a cause of action recognized at law.

The only remedy available in a court proceeding for such a violation appears to be for judicial review by a superior court. The Small Claims Court does not have jurisdiction to grant that remedy or to order the Defendants to follow policy. Accordingly these claims disclose no triable issue. Order [ 41 ] Because this court lacks the jurisdiction to hear these claims, each Defendant is entitled to an order dismissing the respective claim against him or her.

I therefore order each of these claims dismissed. [ 42 ] Normally, the successful party is entitled to its costs, as minimal as those costs may be under the Small Claims Act .

In this case I am making no order for costs: firstly because no such order has been requested; secondly because it is my understanding that the individual Defendants have had their costs borne by their employer; and thirdly because, while I am unable to find jurisdiction for this court to hear these claims, I can understand the Claimants’ frustration with the grievance process in place and do not fault them for looking for creative ways to address the situation.

Dated at the City of Abbotsford, in the Province of British Columbia this 28 th day of July, 2014. _____________________________________ (The Honourable Judge K. D. Skilnick)