IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[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:

[5]           Following are the reasons for the order made determining these applications.

[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:

[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.

[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:

[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.

[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.

[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).”

[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).”

[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.

[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.

[19]        This claim was filed on March 4, 2014. It alleges that Dean Roberts “violated policy - Ref: Professional Conduct in the Correctional Service of Canada Ref: Roncarelli v. Duplessis, SCR 121”. The Claim also alleges that the violation of policy occurred on November 22, 2013.

[20]        This claim was also filed on March 4, 2014. It alleges that “Ron Mandzak violated policy Ref: Professional Conduct in the Correctional Service of Canada. Ref: Roncarelli v. Duplessis, SCR 121”. This Claim alleges that the violation of policy occurred on February 7, 2014.

[21]        This claim was filed on March 18, 2014. It alleges that Shannon Brearley “violated policy - Ref: Professional Conduct in the Correctional Service of Canada. Ref: Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] SCR 121”. The Claim alleges that the violation of policy occurred in February of 2014.

[22]        This claim was also filed on March 18, 2014. It alleges that Brooke Kassen “violated policy - Ref: Professional Conduct in the Correctional Service of Canada. Ref: Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] SCR 121”. The Claim also alleges that the violation of policy occurred in February of 2014.

[23]        This claim was filed on March 27, 2014. It alleges that Jennifer Harvey “violated policy - Ref: Professional Conduct in the Correctional Service of Canada. Ref: Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] SCR 121”. The Claim alleges that the violation of policy occurred in December of 2013.

[24]        This claim was filed on April 2, 2014. It alleges that “Jason Strijack violated policy - Ref: Professional Conduct in the Correctional Service of Canada. Ref: Concarelli (sic) v. Duplessis SCR 121”. The Claim also alleges that the violation of policy occurred on March 12, 2014.

[25]        The first objection to these claims made by the Defendants is that they are “devoid of material facts that could underpin a valid cause of action.” Counsel for the Defendants submits that each claim “consists of a bald assertion that fails to specify what wrongs are alleged 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 to claimants 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:

[27]        The Defendants state that they were simply following the instructions on Form 1. Rule 1(1) of the Small Claims Rules directs that all prospective claimants “must complete a notice of claim (Form 1) following the instructions on the Form” and the Claimants here say that is precisely what they did. While the Claimants certainly kept their claims brief, the portion of the instructions which they did not 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 the only problem with these claims, it could be cured simply by having the Claimants amend their claims to include more particulars or what exactly each Defendant did that was a violation of policy. However I will address the Defendants’ other objections.

[28]        The more difficult problem which the Defendants raise is whether or not the Small Claims has the jurisdiction to hear a claim alleging 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 is acknowledged 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:

[30]        A claim against a CSC employee because that person has violated policy clearly does not fall within the last three of these. The claims have nothing to do with personal property, and there is no agreement between the parties, so the remedy of specific performance is not available here. An order for specific performance is a court order that requires a party who is in breach of a contract to perform what was promised in the contract. Specific performance can be ordered only in cases where damages are an inadequate remedy. There are two glaring reasons why these actions are not ones for which subsection 3(1)(c) applies: (1) there is no contract between each claimant and defendant, and (2) the Claimants are asking for $25,000 in damages and therefore the claims are ones for which the Claimants 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 the jurisdiction to hear claims for damages of up to $25,000. But counsel for the Defendants takes the position that this court has no jurisdiction to award damages simply because someone else’s employee has violated policy. A court having jurisdiction to do so can award damages to compensate a claimant against a defendant who has either breached a contract with the claimant, or who has committed a tort against the claimant. A tort is a breach by a defendant of a duty owed by the defendant to the claimant. The claimant must 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) damage as 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. In support of this position, counsel relies on the Supreme Court of Canada’s decision in Holland v. Government of Saskatchewan 2008 SCC 42. In that case, Chief Justice McLachlin wrote, at paragraph 9:

[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. The Claimants also view the suggestion from Defendants’ counsel that the Claimants’ proper remedy is to file a grievance under the Offender Complaints and Grievance process contained in Commissioner’s Directive Number CD 081 as unhelpful. Both Mr. Pomfret and Mr. Bell have directed my attention to the Federal Court of Canada decision of Speidel v. Canada 2012 FC 958 (CanLII), 2012 FC958, in which the Honourable Madam Justice Mactavish referred to a number of criticisms of the grievance process set out in CD 081. They also note that CD 081 itself allows for the seeking of alternate legal remedies. Specifically, paragraph 45 of CD 081 reads as follows:

[35]        The Claimants take the position that their right to bring these actions comes from the Supreme Court of Canada’s decision of Roncarelli v. Duplessis 1959 CanLII 50 (SCC), [1959] S.C.R. 121. In that case, the plaintiff, a proprietor of a restaurant in Montreal had a 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 who sided with the plaintiff differed on the reasons for their decision. Three judges wrote that Duplessis had ordered the cancellation which was outside his authority as premier. Two judges stated that although Duplessis had the power to order the cancellation, he had done so in 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 tort against the claimant. In Roncarelli the plaintiff was able to 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) damage as the proximate result of that breach. This is different from this case, where the Claimants are adamant that they are not alleging any breach. It is their position that where there is a violation of policy, damages should be owed to them. The error in this reasoning is that damages cannot be awarded unless there has been a breach of contract or the commission 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 Proceedings and Liability Act. Section 21 of that Act restricts jurisdiction for claims against the Crown to the Federal Court and the BC Supreme Court. Here the Claimants are not suing the Crown and it is their position that this Act has no application to their claims. But the Crown relies on section 22(2) of the Act which reads as follows:

[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:

[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.