Strookow v. Sobey, 2024 BCSC 175

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Strookow v. Sobey, 2024 BCSC 175 Date: 20240202 Docket: S32158 Registry: Cranbrook Between: Robert George Strookow Plaintiff And Marie Sobey Defendant Before: The Honourable Justice MacNaughton Reasons for Judgment Counsel for the Plaintiff: C. Harris Counsel for the Defendant: L. Lysenko Place and Date of Hearing: Cranbrook, B.C. January 22, 2024 Place and Date of Judgment: Cranbrook, B.C. February 2, 2024 Table of Contents Overview ... 3 The Background Facts .. 3 The Proceeding Before the RTB .. 9 The

Summary Judgment Application .. 10 Costs .. 14 Overview [ 1 ] In her application, the defendant, Marie Sobey, seeks

summary judgment under Rule 9-6 of the Supreme Court Civil Rules on the basis that Robert Strookow’s notice of civil claim presents no genuine issue for trial. [ 2 ] For clarity, and meaning no disrespect, I use the parties’ and other individuals’ first names in these reasons. [ 3 ] The dispute arises from Marie’s ownership and occupation of a manufactured home that is currently located on property belonging to Robert. The Background Facts [ 4 ] In or around 1988, Robert and his late-spouse, Jo-Anne, bought a 3.4-acre property at 824 King Street, Cranbrook, BC (“824 King”), legally described as:

PID: 009-474-498 Lot 149 District Lot 29 Kootenay District Plan 887, Except

(1) Parcel A (See 1374451) and Parcel B (See 1062321). [ 5 ] In the mid-to-late 1990s, Jo-Anne’s father, Scotty Sobey, had just gone through a divorce and had limited financial means. To assist Scotty, Robert and Jo-Anne agreed to let him live at 824 King in his fifth wheel trailer. [ 6 ] In the weeks or months before May 22, 1997, Robert and Jo-Anne entered into an oral agreement with Scotty (the “Agreement”), pursuant to which they agreed to subdivide 824 King into two parcels and to allow Scotty the use and occupation of the bare land parcel (“824-B King”), rent-free for his lifetime.

In exchange, Scotty would pay the costs of the survey required for the subdivision, the annual property taxes on the subdivided lot, and the cost of installing a well, septic system and hydro. [ 7 ] In his affidavit, Robert says that he does not recall the exact date of the Agreement but he is confident that it was made, at the very latest, by May 22, 1997, the date on which he and Jo-Anne commenced the subdivision process with the Regional District of East Kootenay. Robert says that, more likely than not, the Agreement was reached several weeks or months before then.

He also says that, but for the Agreement, he and Jo-Anne would not have subdivided 824 King. [ 8 ] The terms of the Agreement were never put into writing and Scotty’s life interest in 824-B King was not registered on title. [ 9 ] Scotty and Marie began to date at some point in 1997. Marie says that in April or May 1997, soon after they started dating, Scotty moved his fifth wheel onto 824 King. [ 10 ] Robert says that, to the best of his recollection, when he and Jo-Anne entered into the Agreement with Scotty, they had not met Marie.

Scotty had not told them that he was dating her. [ 11 ] Marie says that in or around September 1997, she and Scotty began living in a marriage-like relationship at 824-B King. Robert says that Marie began living with Scotty at least several months after he and Jo-Anne reached the Agreement with Scotty; his recollection is that she did not move in with Scotty until in or about 1998. Scotty and Marie married in December 1998. Scotty was about 22 years older than Marie. [ 12 ] On about July 22, 1998, Scotty and Marie purchased a 1973 Cobra manufactured home to use as their residence at 824-B King.

She and Scotty lived in the manufactured home continuously from 1998 to Scotty’s death in January 2021. [ 13 ] Attached as Ex. C to Robert’s affidavit is the application he and Jo-Anne filed on March 3, 1999 under the Land Title Act , R.S.B.C. 1996, c. 250 [ LTA ] to deposit a subdivision plan. The statutory declaration that was required to accompany the application was signed before a notary public on November 11, 1998. In relevant part, it provides: 2. THAT the purpose of the Statutory Declaration is to subdivide one lot under s. 946 of the Municipal Act . … 4.

THAT the purpose of this subdivision is to create a residence for Scotty Sobey who is the father of Jo-Anne Susan Strookow, one of the owners of the property and that we understand the new lot may only be used for residential purposes for the next five years. [ 14 ] Both Robert and Jo-Anne signed the declaration “conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath and by virtue of the ‘ Canada Evidence Act .’” [ 15 ] According to Ex.

D, attached to Robert’s affidavit, the subdivision was approved under the LTA on March 12, 1999 and the subdivision plan was deposited in the Land Title Office at Kamloops on March 29, 1999. It created 824-B King as a new 1.02-acre parcel, legally described as: PID: 024-465-097 Lot A District Lot 29 Kootenay District Plan NEP64089 [ 16 ] Marie agrees that the subdivision was complete in about March 1999. The parties disagree about whether Marie was a party to the Agreement. In his affidavit, Robert says that Marie was not a party to the Agreement and that it was never amended to add her as a party.

He says that he and Jo-Anne would not have amended the Agreement to include Marie for the following reasons: a. They barely knew her when she first began residing at 824-B King; b. Scotty had had a few girlfriends over the years, and had been previously married and divorced. There was no certainty about how long Marie would remain a part of Scotty’s life; c. The Agreement was intended to benefit Scotty alone because of his close familial connection with Jo-Anne; d. Jo-Anne and Robert did not develop a close relationship with Marie.

In fact, Robert says their relationship with her was often somewhat strained; and e. Marie is roughly six years younger than Robert, and was one year younger than Jo-Anne, who is now deceased. As a result, granting her a life interest in 824-B King would likely have meant that they would never be able to sell or otherwise deal with 824-B King during their lifetimes and, perhaps, for years thereafter.

[ 17 ] In contrast, Marie says in her affidavit that she and Scotty verbally agreed with Jo-Anne and Robert that they could remain on 824-B King for their lifetimes if they did the following work (the “Work”) at their own cost: a. Subdivision of 824-B King; b. Installation of a well and a shed that housed the pressure tank and water softener; c. Installation of utilities, including running powerlines; d. Landscaping, including cutting trees and filling holes on the property with gravel; e. Surveying the site; f. Payment of annual property taxes.

Marie said that she and Scotty paid the property taxes from 1999 until Scotty died in January 2021. During that timeframe, Robert and Jo-Anne received the property tax notice and gave it to them to pay; g. Snow removal; and h. Septic pumping. [ 18 ] Marie says that Scotty and she completed the Work at a cost of over $74,162. [ 19 ] Robert says that, to the best of his knowledge, Scotty paid all the costs for the subdivision and the property taxes without contribution from Marie.

He says that, even if she contributed, that arrangement was between them. [ 20 ] Robert also says that it was never a term of the Agreement that Scotty would cover the landscaping, snow removal, or septic pumping for 824-B King. He says that landscaping was not done at his or Jo-Anne’s request, or with their consent. He also says that snow removal and septic pumping was done at Scotty’s discretion to further his own use and enjoyment of 824-B King. [ 21 ] Scotty died on January 10, 2021 in Cranbrook, BC. Jo-Anne predeceased him.

Marie says that when Scotty died Robert offered to pay the property taxes for the year and that, since, Robert has not provided her with a property tax notice to pay. Marie says that on Scotty’s death, she became the sole registered owner of the manufactured home on the Property. [ 22 ] I note that the manufactured home was not originally registered in Marie’s name. It was registered in her name on June 28, 2023, the same date on which Marie’s lawyer filed a Notice of Dispute Resolution Package (“DRP”) with the BC Residential Tenancy Branch (“RTB”) on her behalf.

I will refer to the DRP later in these reasons. [ 23 ] Robert says that, during Scotty’s lifetime, he and Jo-Anne had a number of conversations about what would happen if Scotty died, leaving Marie to survive him, as, given their age difference, that was not unlikely.

Robert says that Jo-Anne reminded her father on a number of occasions that the Agreement permitted him to reside on 824-B King for his lifetime and that, upon his death, Marie would need to move elsewhere. [ 24 ] Robert recalls Scotty telling him, at least once, that he told Marie she would need to move upon his death. [ 25 ] Robert says that after Scotty’s death, he had a “handful” of conversations with Marie about her occupation of 824-B King. During them, she never mentioned that she had a right to reside there for the remainder of her life.

Instead, in the summer of 2021, she asked to be allowed to live there for a further year, rent-free, and he agreed. She also said that she would have places to move to when the time came for her to do so. [ 26 ] In the summer of 2022, Robert proposed to Marie that they enter into a tenancy agreement, starting January 2023, at a rental rate of $600 a month. When she said that was too high, he suggested $500 a month. She did not agree. [ 27 ] In January 2023, Robert again approached her about renting 824-B King.

Marie said she did not have the funds to pay him monthly rent and likely would not have the funds to pay the property taxes either. [ 28 ] About January 12, 2023, Robert instructed his counsel to demand that Marie vacate 824-B King on or before July 1, 2023 (the “Letter”). [ 29 ] The Letter provided, in relevant part: We act for [Robert], the owner of [824-B King]. Our client advises that, as the widow of his late father-in-law, until now he has gratuitously permitted you to reside on [824-B King] rent free.

However, as you did not accept our client's verbal offer of tenancy, we write to advise you that that offer is now revoked. We further write to provide you with formal written notice that your licence to occupy [824-B King] is terminated effective July 1, 2023 . You will be required to vacate the property on or before that date. We trust that this will allow you adequate time to remove yourself and your belongings, including your mobile home, vehicles, sheds, structures, debris and refuse from [824-B King] .

If you do not vacate [824-B King] by July 1, 2023, please be advised that our client intends to commence legal action against you for trespass and a writ of possession. [ 30 ] On June 28, 2023, Marie filed the DRP with the RTB asserting that she was Robert’s tenant under the Manufactured Home Park Tenancy Act, S.B.C. 2002, c. 77 [ MHPTA ] and disputing the Letter as an unlawful eviction. [ 31 ] Robert commenced this proceeding by filing a notice of civil claim on August 1, 2023, claiming relief under the tort of trespass.

[ 32 ] On August 25, 2023, Marie filed a response to civil claim alleging that she was also a party to the Agreement and was granted the right to live on 824-B King for her lifetime. She pled that Scotty provided consideration for the Agreement in the sum of $74,162 and provided a breakdown of how she arrived at that amount. [ 33 ] Robert filed a reply, which pled that any alleged agreement to provide Marie with a lifetime interest in 824-B King would be unenforceable pursuant to s. 59(3) of the Law and Equity Act , R.S.B.C. 1996, c. 253 .

The Proceeding Before the RTB [ 34 ] The RTB held a teleconference hearing regarding Marie’s DRP on October 3, 2023. As is usual with respect to such proceedings, the hearing was scheduled for up to one hour. Marie did not disclose any documents relating to the alleged expenses she said were consideration for the Agreement when she filed the DRP or at the hearing. [ 35 ] There was a dispute about the jurisdiction of the RTB to deal with the matter.

Robert argued that the matter was “substantially linked” to a matter that was before this Court and the RTB had no jurisdiction to deal with it. [ 36 ] Marie submitted that the RTB had jurisdiction as the notice of civil claim was filed after the DRP and that it was filed to avoid the RTB’s exclusive jurisdiction under ss. 51(2) and 77.1 of the MHPTA . As she submitted before me, counsel for Marie argued that the facts were similar to what was dealt with in Charbonneau Estate v.

Charbonneau , 2021 BCCA 206 . [ 37 ] The RTB Arbitrator, pursuant to delegated authority from the Director of the RTB, concluded that: … this application is substantially linked to the BCSC claim referenced in the Notice of Civil Claim dated August 1, 2023, as this application and the BCSC claim both involved the possession of the same site. I am aware the BCSC may hear and determine this dispute or may remit the case back to the RTB, per section 51(4) of the [ MHPTA ], and also that the RTB has exclusive jurisdiction to hear disputes regarding the [ MHPTA ], per

section 77.1 : “The director has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined in a dispute resolution proceeding under Division 1 of this Part or in a review under Division 2 of this Part and to make any order permitted to be made.” I find that sections 51 and 77.1 of the [ MHPTA ] should be interpreted in conjunction. In this matter, as this dispute is substantially linked to a matter before the BCSC, I find that section 51(2)(

c) of the [ MHPTA ] applies and the RTB has no jurisdiction until the BCSC makes a decision in the civil claim referenced in the Notice of Civil Claim dated August 1, 2023. It is up to the BCSC to decide to remit the matter to the RTB or to make a decision, per 51(4) of the [ MHPTA ]. In fact, that is what happened in Charbonneau , as the BCCA remitted the case to the RTB. [ 38 ] As of now, the RTB has no jurisdiction to hear this matter, per s. 51(2) (

c) of the MHPTA . The

Summary Judgment Application [ 39 ] Pursuant to Rule 9-6(5) of the Supreme Court Civil Rules , the Court may dismiss a claim if, after pleadings are exchanged, it concludes that there is no genuine issue for trial. [ 40 ] The bar on an application for

summary judgment is high. Marie bears the evidentiary burden of showing that there is “no genuine issue of material fact requiring trial”: Canada (Attorney General) v. Lameman , 2008 SCC 14 at para. 11 . [ 41 ] In Beach Estate v. Beach , 2019 BCCA 277 , the Court of Appeal discussed the applicable principles on an application for

summary judgment under Rule 9-6. Rule 9-6 involves a limited review of the evidence. A defendant may succeed by showing that the plaintiff’s case, as pleaded is unsound or by adducing sworn evidence that gives a complete answer to the plaintiff’s case: [48] ... Such evidence generally is adduced in the form of an affidavit. If the court is satisfied that the plaintiff is bound to lose or the claim has no chance of success, the defendant must succeed on the Rule 9-6 application: Canada (Attorney General) v. Lameman , 2008 SCC 14 (S.C.C.) at paras. 10-11 .

Conversely, if the plaintiff submits evidence contradicting the defendant's evidence in some material respect or if the defendant's evidence in support of the Rule 9-6 application fails to meet all of the causes of action raised by the plaintiff's pleadings, the application must be dismissed : B & L Holdings Inc. at para. 46, quoting Progressive Construction Ltd. at 335. [Emphasis added.] [ 42 ] When deciding a

summary judgment application, “the judge is not permitted to weigh evidence beyond determining whether it is incontrovertible: any further weighing may only be done in a trial”: Beach Estate at para. 49 [ 43 ] In this case, Marie argues that there is no genuine issue for trial as the BC Supreme Court lacks jurisdiction to decide the issue. [ 44 ] In that regard, Marie argues that, under s. 51 of the MHPTA , the question of whether there is a tenancy relationship between the parties is a matter within the exclusive jurisdiction of the director under the MHPTA .

Section 51 provides: 51

(1) Except as restricted under this Act, a person may make an application to the director for dispute resolution in relation to a dispute with the person's landlord or tenant in respect of any of the following:

(

a) rights, obligations and prohibitions under this Act; (

b) rights and obligations under the terms of a tenancy agreement that (

i) are required or prohibited under this Act, or (ii) relate to (

A) the tenant's use, occupation or maintenance of the manufactured home site, or (

B) the use of common areas or services or facilities.

(2) Except as provided in subsection (4) (a), the director must not determine a dispute if (

a) the amount claimed, excluding any amount claimed under section 44 (1) or (2) or 44.1, for debt or damages is more than the monetary limit for claims under the Small Claims Act , (

b) the application for dispute resolution was not made within the applicable time period specified under this Act , or (

c) the dispute is linked substantially to a matter that is before the Supreme Court.

(3) Except as provided in subsection (4) or (4.1), a court does not have and must not exercise any jurisdiction in respect of a matter that must be submitted to the director for dispute resolution under this Act.

(4) The Supreme Court may, on an application regarding a dispute referred to in subsection (2) (

a) or (c), (

a) order that the director hear and determine the dispute, or (

b) hear and determine the dispute.

(4.1) If the Supreme Court hears and determines a dispute under subsection (4)(b), the Supreme Court may make any order that the director may make under this Act . [ 45 ] I agree with Marie that,

summary judgment should be granted where the court lacks jurisdiction over the subject matter of the dispute: Acuren Group Inc. v. Tremblay , 2011 BCSC 49 at para. 7 . [ 46 ] However, in the circumstances of this case, I disagree that this Court lacks jurisdiction over this dispute. In that regard, I distinguish Charbonneau Estate , a case heavily relied on by Marie. [ 47 ] In Charbonneau Estate , the Court of Appeal overturned a

summary judgment granting a writ of possession against the deceased’s brother, and restraining the brother from trespassing on property then owned by the deceased’s estate.

The brother argued that he had an agreement with his brother that he could live in his mobile home, rent free, in a manufactured home park owned by his brother, for as long as he wished in exchange for providing work and services at the manufactured home park. [ 48 ] The Court of Appeal decided that there was a genuine issue to be tried with respect to whether a tenancy agreement, as broadly defined in the MHPTA , existed between the appellant and his deceased brother, that had not been addressed by the judge in chambers: Charbonneau Estate at para. 48 .

The Court, citing Beach Estate at para. 67 , said that on an application under Rule 9-6, if the evidence needs to be weighed and assessed, then the test of “plain and obvious” or “beyond a doubt” to be applied under the Rule has not been satisfied and the application is to be dismissed: Charbonneau Estate at para. 25 . [ 49 ] The parties agreed that, if the appeal was allowed, the Court could either refer the dispute to the director under the MHPTA or refer it back to the Supreme Court: Charbonneau Estate at para. 49 .

The Court of Appeal did not find that only the RTB had jurisdiction to decide whether a tenancy existed. However, the Court concluded that it was appropriate, in the circumstances of Charbonneau , to refer the dispute about the tenancy to the director under the MHPTA . [ 50 ] Justice Butler wrote on behalf of the Court of Appeal: [50] In my view, in these circumstances the question of whether a tenancy arises under the MHPTA should first be considered by the Residential Tenancies Branch, within the scheme contemplated by the MHPTA .

Section 51(3) of the MHPTA provides that "a court must not exercise jurisdiction in respect of a matter that must be submitted to the director for dispute resolution." The decision to assume jurisdiction under the MHPTA involves the

interpretation of the tribunal's home statute: Sager at para. 9. That is a task the director is well suited to perform. [ 51 ] In reaching this conclusion, the Court cited two cases, the first was Willow Beach Developments Ltd. v. Silverstone , 2017 BCSC 2562 [ Willow Beach ], which referred to a number of considerations that were applicable to determining whether the court or the director had jurisdiction over a dispute arising at a mobile home park.

The first consideration identified was “whether the dispute arises out of a tenancy or a landlord tenant relationship”; if not, then the dispute resolution mechanisms in the MHPTA had no application: Charbonneau Estate at para. 51 , citing Willow Beach at para. 20. [ 52 ] The Court also referred to Powell v.

British Columbia (Residential Tenancy Branch) , 2016 BCSC 1835 , in which the judge noted that an arbitrator could only assume jurisdiction under the MHPTA if the relationship between the parties was in the nature of a "tenancy", as compared to a "license to occupy": Charbonneau Estate at para. 52 . [ 53 ] The Court in Charbonneau Estate determined that the only questions to be determined were whether there was a tenancy relationship between the brother and the estate and, if so, the terms of that relationship. The Court determined that that matter was not

now “linked to a matter that is before the Supreme Court” pursuant to s. 51(2) (c), and that pursuant to s. 51(3), the Court must not exercise jurisdiction in a matter to be submitted to the director for dispute resolution under the MHPTA : at para. 53. [ 54 ] I note that in Charbonneau Estate there was some evidence of an agreement between the brothers, including evidence from one of the estate’s beneficiaries. I also note that the estate’s initial approach was to demand rent from the brother. [ 55 ] In my view, Charbonneau Estate is distinguishable from the facts before me.

In this case, the issue is not whether a disputed agreement between Robert and Marie is a tenancy agreement, but whether there was any agreement between them at all. Robert never demanded that Marie pay rent pursuant to an existing tenancy relationship. His offer was for her to start paying rent. If she had agreed to do so, a tenancy relationship would have then begun.

Robert has been consistent throughout that Marie has no right to occupy 824-B King. [ 56 ] If the dispute here was between Robert and Jo-Anne on one side, and Scotty on the other, about whether the Agreement amounted to a tenancy agreement under the MHPTA , this case would be analogous to Charbonneau Estate.

Instead, the focus of the dispute is whether an agreement was ever reached with Marie or extended to include her. [ 57 ] The documentary disclosure and examinations for discovery available under the Supreme Court Civil Rules are, in my view, best suited to determining whether Marie was a party to any agreement with Robert and Jo-Anne (when she was alive). [ 58 ] If this Court determines that such an agreement was reached, the matter might then be referred to the director under the MHPTA to determine whether it amounts to a tenancy under the MHPTA . [ 59 ] In the result, Marie’s application under Rule 9-6 is dismissed.

There is a genuine issue for trial between the parties. Costs [ 60 ] The parties did not speak to costs. As Robert has been successful, absent any circumstances of which I am not aware that might bear on costs, he should be entitled to his costs of this application on Scale B. “MacNaughton J.”