Verico v. Walker, 2014 BCPC 37 (CanLII)
Citation: Verico v. Walker Date: 20140318
2014 BCPC 0037 File No: 12-23282
Registry: North Vancouver
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
BETWEEN:
VERICO NOVA FINANCIAL SERVICES INC.
CLAIMANT
AND:
SHARON WALKER
DEFENDANT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE MERRICK
Appearing for the Claimant: J. Ribalkin
Counsel for the Defendant: P. Roxburgh
Place of Hearing: North Vancouver, B.C.
Dates of Hearing: November 14, 2013, February 18, 2014
Date of Judgment: March 18, 2014
[1] Verico Nova Financial Services Inc. (hereinafter referred to as “Verico”) claims against Sharon Walker as a result of Ms. Walker’s failure to complete mortgage financing. A representative of Verico failed to attend the August 9, 2013 settlement conference and as a result the claim was dismissed.
[2] On August 20, 2013 Verico filed an application to cancel the dismissal order (hereinafter referred to as “the Application”). The affidavit in support of the Application states that Verico learned of the dismissal order on August 19, 2013 and that a representative of Verico failed to attend the settlement conference because the date was incorrectly diarized.
[3] The application was set to be heard on October 17, 2013 but the parties agreed to adjourn the hearing to November 14, 2013. Argument commenced that day and continued on February 18, 2014.
[4] A dismissal order may be cancelled if the order was made in the absence of the party and the party applies and attaches to the application an affidavit containing:
(i) the reason the party did not attend the settlement conference;
(ii) the reason for the delay in filing the application;
(iii) the facts that support the claim.
See Rule 17(2) of the Small Claims Rules. See also Miracle Feeds v. DH Enterprises Ltd. (1979) 10 BCLR 58 at page 61 (Co.Ct.).
[5] That has been done and the defendant appropriately concedes that the first two criteria have been satisfied.
[6] The issue on the application is whether Verico has established facts that support the claim. At this stage Verico must establish that there is a triable issue.
[7] The facts for the purposes of the application are in summary:
Verico obtained a commitment for second and third mortgage financing for Ms. Walker. All of the necessary paperwork was completed and Verico was waiting for Ms. Walker to provide the required insurance binder prior to advancing the funds. As Verico submitted between April 16, 2012 and May 2, 2012, the matter was between Ms. Walker’s lawyer and Verico’s notary. On May 2nd, 2012, Ms. Walker told Verico she no longer required the financing. On May 3rd, 2012, Ms. Walker obtained mortgage financing from another lender.
[8] Verico’s position is as follows:
(i) it did everything necessary to provide the mortgage financing;
(ii) Ms. Walker acknowledged she was obligated to provide the insurance binder;
(iii) Ms. Walker acknowledged she was liable for all fees should she fail to complete the transaction and this included Verico’s fee.
[9] Ms. Walker’s position is as follows:
(i) there is no specific
provision in any of the paperwork that provided that Verico
is entitled to its fee if the transaction did not complete;
(ii) Verico’s only
entitlement is to the standby fee of $1,000 as the standby fee
was a non-refundable deposit;
(iii) the agreement contains
a provision that the lender does not have to loan the
money if it chooses not to and the lender can choose not to
for any reason.
[10] In support of her position, Ms. Walker’s counsel referred me to Banker’s Mortgage Corp. v. 529754 B.C. Inc. 2012, BCSC 298. In that case, Mr. Justice Joyce considered two different situations. In the first situation:
The party claiming the fee was the proposed lender. The consideration for the promise by the borrower to pay the fee was a promise by the lender to grant a loan. However, because the lender had an absolute discretion whether to advance the funds, Mr. Justice Joyce found there was, in reality, no promise to loan the money and therefore no consideration to support the promise to pay the fee.
[11] In the second situation:
The party claiming the fee was not the lender. A fee was payable upon the issuance of a loan commitment letter. Mr. Justice Joyce found, in this situation, a fee was payable because one party agreed to provide a service in finding a lender who was prepared to grant a loan and the other party agreed to pay a fee for that service. The consideration for the promise to pay the fee is based upon a promise to provide a commitment letter from a lender who is prepared to loan the money.
[12] In the case at bar, if the lender chose not to advance the funds Verico was obligated to endeavour to find another lender and if it could not, it had to refund some or all of the standby fee depending on whether certain disbursements were incurred. Considering that fact, and the documents that support the assertion that Ms. Walker agreed to be liable for all fees if she did not complete the transaction, I am satisfied there is a triable issue; that issue being whether or not Verico’s claim is the same or similar enough to the second situation identified by Mr. Justice Joyce.
[13] Accordingly, the dismissal order is cancelled.
[14] The case is adjourned to the registry to set a date for a pre-trial conference.