IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Claimant Dean Christopher Roberts is a serving federal inmate who is currently incarcerated at Mission Institution in Mission, BC. The Defendant, Jennifer Hamilton is an Institutional Parole Officer at Mission Institution. The Claimant has filed a very detailed Notice of Claim, similar to one which might be filed in the BC Supreme Court that alleges the commission of a number of torts by the Defendant against him. In essence,  the Claimant says that the Defendant has committed what amounts to either an intentional or a negligent misrepresentation or negligent misstatement concerning the Claimant, and more specifically regarding her recommendation as the appropriate level of classification for the Claimant within the federal prison system. The Claimant alleges that as the result of the actions of the Defendant, he has suffered anxiety, depression, insomnia, weight loss, economic loss and nervous shock. He seeks an order for $25,000 in damages.

[2]           In response, Counsel for the Defendant has filed a general denial form of reply, which simply states “the Defendant denies each and every allegation made in the Notice of Claim and puts the Claimant to strict proof thereof.”

[3]           A Settlement Conference was held in this matter on November 20, 2017. At that time, the Defendant asked for an order dismissing this Claim on the grounds that this court does not have jurisdiction to hear this claim, and because it does not disclose a triable issue. Unfortunately proper arrangements were not made to have the Claimant participate in the Settlement Conference, either in person or by telephone. As such, the Claimant’s application was rescheduled and heard on February 2, 2018. The Claimant was able to participate by telephone at the rescheduled hearing.

[4]           At first there was some issue about whether or not the Claimant was served with the Defendant’s supporting material. (The Claimant said he was not, while Counsel for the Defendant was adamant that documents had been served on the Claimant and expressed his frustration about this). Ultimately however, the Claimant agreed that he either had, or was aware of all of the documents that the Defendant’s counsel referred to in submissions. The application was able to proceed. A number of complex legal issues presented themselves and judgement was reserved. Following are my reasons for making the order now made.

[5]           On March 4, 2014, the Claimant was one of seven separate claimants who were federally incarcerated inmates, each of whom brought a small claims action against a number of employees of the Correctional Services of Canada. The Claimant in this action was also the Claimant in Abbotsford Small Claims Court File 21841 and the Defendant in this file was also the Defendant in that file. The Notice of Claim in the 2014 file simply alleged that the Defendant “violated policy - Ref: Professional Conduct in the Correctional Service of Canada Ref: Roncarelli v. Duplessis, SCR 121”. The Claim also alleged that the violation of policy occurred on November 22, 2013.

[6]           The seven defendants in those cases brought an application for dismissal of all of the claims, alleging that none of the claims disclosed any triable issues and because this court lacked jurisdiction to grant relief against employees of the Government of Canada. Coincidentally, I was the judge who heard that application. Written reasons were given on that application, and were reported as Pomfret, et. al. v. Van Vugt, et. al, 2014 BCPC 167. All of the applications brought by the defendants (including the one brought on behalf of the Defendant in this case) were dismissed. The decision was summarized in paragraph [41] as follows:

[7]           The Notice of Claim filed in this case by the Claimant is much more detailed that the one in the 2014 action. In this Notice of Claim, the Claimant alleges that the Defendant has written a report about the Claimant which raised the Claimant’s escape risk and public safety rating. As a result of the representations in that report, the Claimant says that he has been denied the opportunity for reclassification to a Minimum Security Institution, or to obtain Escorted Temporary Absences, something he says that his previous Institutional Parole Officer had recommended. His Notice of Claim suggests that this was a false statement, either made intentionally or negligently. The Notice of Claim specifically alleges that the Defendant was negligent in the making of this statement. It goes on to allege that he has suffered damages as a result.

[8]           As stated earlier, the Defendant’s Reply does not specifically address any of these allegations. It only makes a general denial. This is problematic, as it fails to comply with Section 4 of the Small Claims Act and Rule 3 of the Small Claims Rules. Rule 3 (1) (d) requires that where a defendant replies to a claim and is opposing all or part of a claim the defendant must list the reasons why the claim is opposed. General denial defences have been found to breach this rule. However this consideration does not yet come into play, as it must first be determined if the Claim should proceed on its own merits.

[9]           The matter was scheduled for a Settlement Conference on November 20, 2017. Counsel for the Defendant appeared but the Claimant was unable to. At that time the Honourable Judge Young of this Court ordered that this application be set to be heard by me, to be set for 2.5 hours in a secure courtroom and for a spring order to be prepared for the Claimant to appear, and that his appearance be by video if possible or by phone.

[10]        In its Written Submission, the Defendant asks for an order dismissing the Notice of Claim on the following grounds:

[11]        Counsel’s written submissions acknowledge that the Defendant has authored an Offender Security Level Report which has concluded that the Claimant is a “Medium” security risk, and that as a consequence, the Claimant cannot be transferred to a minimum security facility.

[12]        Concurrently with this Claim, the Claimant also pursued a grievance with Correctional Services of Canada (CSC), based on the Offender Security Level Report written by the Defendant. On August 4, 2015, CSC issued its final grievance report. This report included a comprehensive review of the Defendant’s decision and upheld that decision. This Report indicates that the classification decision is not strictly that of the Defendant, but is the collective decision of the CMT (Case Management Team). The report concludes as follows:

[13]        Two subsequent OSL assessments have been written regarding the Claimant by two different Institutional Parole Officers. The first of these was written on December 30, 2015. This report concluded that the Claimant was a Low risk for escape, and gave him a Low rating for institutional adjustment, but rated him as High risk in the category of public safety. The report states;

[14]        On September 22, 2016, a process hearing was held before another judge of this court, following which that judge approved the issuance of process based on a private information sworn by the Claimant. It alleges that the Defendant had committed an offence under section 122, committing a breach of trust in connection with the duties of her office by placing false information in a government document. In her reasons for judgement, that judge referred to a statement made in a report purported to be written by the Defendant in which she quoted an elder as saying that the Claimant had not “opened up fully” in his work with the elder. In a sworn statement submitted at the process hearing, the Elder denied making the statement. It is not immediately clear from the transcript of the judge’s reasons for judgement how this amounted to prima facie evidence of a criminal offence. Counsel for the Defendant says that the judge who rendered that decision was wrong. He said “first of all, I don’t agree with that decision” and, in his words, “it reflects poorly on the administration of justice”. While I may not have reached the same conclusion as that judge, I do not have the benefit of all of the information at the hearing which the judge issuing process did.

[15]        The most recent OSL assessment, dated December 10, 2017, written by a different Institutional Parole Officer, reaches a similar conclusion. That report reaches the same conclusion on the Claimant’s Offender Security Level. It notes psychological assessments in which the Claimant scores as a Moderate to High risk for violent and general re-offending. The report also states that “there are no known dissenting opinions at this time.”

[16]        Dismissal of a claim before it can be heard on the merits is an unusual remedy and one which should be granted sparingly. However this does not mean that cases should not undergo some scrutiny before they are set down for trial, especially now, when the amount of available trial time in this court for small claims cases is declining. Criminal cases have constitutional requirements that they proceed without delay. Child protection cases are accorded priority by statute and as a matter of wise policy. These considerations tend to leave small claims actions at the end of the cue when it comes to scheduling trial time.

[17]        One of the functions of the Small Claims Rules (especially Rule 7) is to permit a cursory test of the merits of the claim so that limited trial time is not wasted on claims that are without merit or have a negligible chance of success. In an application of this nature, the judge hearing the motion is essentially a gatekeeper whose task it is to keep out those claims which have no merit, those which are unsupported by any evidence (without weighing the existing evidence) and those whose outcome can be easily determined without a significant expenditure of the court’s time and resources, such as on a point of law.  The dismissal of a claim at a Settlement Conference is a remedy that should be used with caution and only in clear cases. (See Artisan Floor Co. v. Lam. (1993) 1993 CanLII 2138 (BC SC), 76 B.C.L.R. (2d) 384 (B.C.S.C.); Eco-Tourism 2010 Society v. Vancouver 2010 Bid Corporation and the Queen 2005 BCPC 23; Cecil v. Holt-Renfrew 2001 BCPC 54; Poy v. Dr. Edward Coates Inc. 2009 BCPC 388; Burton v. Vancouver/Richmond Health, 2003 BCPC 440; Sigurdur v. Fung 2007 BCPC 239; Lura v. Jazz Forest Products (2004) Ltd., 2014 BCPC 14; Ibrahim v. MacInnis et al., 2017 BCPC 397).

[18]        Counsel for the Defendant lists four grounds that he says justify the dismissal of this case at this stage. I will deal with each of these individually.

[19]        Counsel for the Defendant calls this “a clear case” where cause of action estoppel applies such that the Claimant is precluded from bringing this claim because he had brought a claim against the Defendant on similar grounds. He says that the earlier claim was brought on “the same factual situation” as this claim.

[20]        The Defendant’s Counsel concedes in his written submission that the earlier claim alleged that the wrong committed was “a breach of policy”, something this court was without jurisdiction to remedy, while the claim in those case is broader than that, and alleges negligence and some type of actionable misrepresentation. The causes of action alleged in this claim are ones which this court does have jurisdiction to hear. But counsel argues that the law goes farther than that.

[21]        Counsel relies on the British Columbia Supreme Court decision in Grant McLeod Contracting Ltd. v. Forestech Industries Ltd., 2008 BCSC 756. In that case, Mr. Justice Josephson relied on the following statement describing the doctrine of cause of action estoppel, written over a century and a half ago by Wigram V.C. in Henderson v. Henderson (1843), 3 Hare 100 at 114-15:

[22]        Justice Josephson noted the difference between cause of action estoppel and issue estoppel. He went on in that case to note that in Doer v. Grandview (Town), 1975 CanLII 16 (SCC), [1976] 2 S.C.R. 621. The Supreme Court of Canada has limited the application of this doctrine, in his words, “as applying only to the same cause of action, and not to a separate and distinct cause of action” even if the two causes of action arise out of the same set of facts. He accepted the following statement of the law regarding this subject from Hall v. Hall (1958), 1958 CanLII 271 (AB CA), 15 D.L.R. (2d) 638 (Alta. C.A.):

[23]        Justice Josephson went on to note that there are four criteria which must be found before the doctrine of cause of action estoppel can apply. These are summarized in Bjarnarson v. Manitoba (1987) 1987 CanLII 5396 (MB CA), 21 C.P.C. (2d) 302 at 304 (Man. Q.B.), aff’d (1987), 21 C.P.C. (2d) 302 (Man. C.A.), as follows:

[24]        In the present case, the first two elements are present. The latter two are not. The two causes of action (in the former case to compel a public official to follow policy, and in this case negligence and misrepresentation) are separate causes of action. Counsel for the Defendant says in his written submission that the Claimant “could have and should have” brought this claim as part of his earlier claim. Whether the Claimant should have been reasonably diligent in bringing this claim as part of his earlier claim is not clear merely because counsel asserts it to be such. I am mindful that in the earlier action, the Claimant was part of what was in essence a form of “class action” and that he was not the party conducting that litigation. Reasonable diligence is something that reasonable people can disagree on. When the consequence is taking away the right to bring a court action, more leeway should be afforded in determining what reasonable diligence is. The Defendant’s application cannot succeed on this ground.

[25]        Counsel for the Defendant argues that this matter should not proceed to trial because the Claim has virtually no chance of success. If the Claim is one for negligence, the Claimant should, at this stage, make out a prima facie case to show that the Defendant has failed to meet the standard of care of a reasonably prudent institutional parole officer and that he has suffered damage as a result.

[26]        To succeed in this Claim, the Claimant must present evidence at trial of what the duty of care that is owed to him by his Institutional Parole Officer is, and how the Defendant has breached it. This is not something that is self-evident, and it is not something that is within the expertise of the persons that the Claimant intends to call as witnesses.

[27]        In Cheung v. Moorley 2011 BCSC 1641, Mr. Justice Williams of the British Columbia Supreme Court accepted the following statement of the law from this court’s decision in Sigurdur v. Fung 2007 BCPC 239:

[28]        Those comments apply to this case as well. Before the Defendant should be called upon to defend her professional reputation, there should be some supporting evidence of her negligence. In this case, the evidence which has been presented points in the opposite direction. The decisions regarding the Claimant in which the Defendant has participated have been upheld in the appeal process at the highest levels within the Correctional Services of Canada. Other Institutional Parole Officers have independently come to similar conclusion regarding the Claimant as those made in the Case Management team that the Defendant was a part of. There is also a further difficulty in that the consequences which flow to the Claimant are the result of the opinions of a team and not of the Defendant as an individual. Even the Claimant is not suggesting that the Defendant has the final say over his classification level. He only asserts that she is very influential.

[29]        I agree with the submissions of Counsel for the Defendant that trial time should not be assigned on the Claim for professional negligence or for negligent misstatement.

[30]        The second aspect of the Claim appears to be one for fraudulent or negligent misrepresentation. As Counsel for the Defendant notes, the Claimant does allege any specific statement in his Claim. He says that the Defendant made “many negative assertions regarding the accomplishments of the Claimant” and that she made “broad statements” that others were wrong in their positive assessment of the Claimant. He notes that the Defendant had considered his escape risk factor to be at a higher level than others, but this was ultimately reduced through the appeal process. It is at this point in the Claim that the Claimant alleges that he has suffered nervous shock.

[31]        In the Claimant’s application for process on the private information that he swore, he alleged that the Defendant had made a false statement concerning her discussions with an elder involved with a spiritual program for indigenous inmates. He said that he intends to have that elder testify on his behalf if this matter comes to trial.

[32]        The difficulty with this aspect of the Claim is that the Claimant must be able to explain how this can possibly lead the court to conclude that this is the cause of his damages. It is not a matter of making him prove his case at this stage. Giving him the benefit of the doubt, even if one accepts, for the purpose of argument, that what he is saying is true, (i.e. that the Defendant did misstate what she was told by this elder), can a court conclude that his damages flowed from this? If this is not reasonably possible, then this cause of action should not be set down for trial.

[33]        The last aspect of this ground is that the Defendant has to somehow show that he has suffered damages which flow from the causes of action he alleges. To assist gatekeeper judges in deciding this, Rule 7 (9) of the Small Claims Rules requires a Claimant alleging damages of the nature claimed by the Claimant to file a Certificate of Readiness attaching any medical reports and records of expenses or losses incurred or expected to be incurred. There is no point setting two days of trial time if no damages can be proven. Liability would then be a moot point.

[34]        The Claimant in this case has filed a Certificate of Readiness, but it does not contain any medical reports independently supporting the conclusion that he has suffered the injuries he alleges. It is not sufficient for a claimant to self-diagnose. In this case the Certificate of Readiness only attaches an Inmate Request Form which indicates that on April 2, 2014, the Claimant was referred to a psychologist for suicide prevention counselling. No report from the psychologist or any other medical practitioner has been provided. There is nothing in the document from which a judge could conclude that this is the result of the Defendant’s actions.

[35]        The Defendant correctly asserts that on the material before the court, a number of important elements are lacking which are required before reasonable grounds for the claims alleged can be found, even if one accepts the facts as presented. There is no basis shown for professional negligence or for negligent misstatement. Even if the misrepresentation which the Claimant alleges is proven at trial, no causal connection can be found to link this with any damages. The Certificate of Readiness does not provide any evidence of the damages alleged.

[36]        On the material presented, setting this matter down for trial would be doing so on the basis of suspicion or innuendo, founded on the Claimant’s frustration with the results of the CSC grievance process, and in the hope of proof materializing at trial. As the authorities have stated, the law requires more than this before setting the matter down for trial.

[37]        This is essentially a repetition of the previous ground. In his written submission, Counsel for the Defendant asserts that the Claim does not disclose a triable issue with regard to negligence or negligent infliction of mental suffering. His written submissions suggest that this ought to be self-evident. In my view, this is not a proper ground of objection. In this case, the Claimant raises valid issues. What is lacking is any evidence giving them an air of reality. If there had been evidence to support his contention of deliberate misrepresentation or professional negligence, these would indeed be triable issues. The Claimant’s greatest difficulty in this regard is in the failure of the evidence to support the conclusions he supposes to be facts. This is different from finding that his Claim does not disclose any triable issues.

[38]        It was apparent from the submissions of Counsel that he was adopting his client’s frustration over the tenacious litigiousness of the Claimant. For example, one of the complaints made about this application by Counsel for the Defendant was that it was unfair for him, as a lawyer who practices in downtown Vancouver, to have to drive to Abbotsford to deal with this application (even though he is representing the person bringing the application.) His specific complaint was “It’s becoming an inconvenience for me to come out here. I had to come out here as well for the Settlement Conference”. This is a complaint that is being heard by me and my colleagues who are judges in this community with increasing frequency lately, especially from many junior lawyers from Vancouver. Perhaps it arises from some misconceptions that exist within the city of Vancouver about Abbotsford, and so I thought I would take this opportunity to clear up any confusion that may exist among those members of the bar.

[39]        Abbotsford is a city located within the Province of British Columbia, coincidentally the same province that Vancouver is located in. It is not in a foreign country and one may access Abbotsford by motor vehicle without having to clear Customs, ride a ferry or proceed through any sort of checkpoints. No one is asked to present their “papers” when entering this city. Persons visiting Abbotsford from Vancouver do not require a passport or any type of inoculation or shots before coming here. According to Google Maps, the distance from the Vancouver Provincial Court to the Court House in Abbotsford is 67.5 kilometres. While this trip cannot be compared to a leisurely Sunday drive, patient drivers make this trek each day with most of their sanity intact afterward. For many years now Abbotsford has had electricity and indoor plumbing. Its drinking water is not only safe, but has even won international awards. Abbotsford is generous community and often ranks first in the nation in charitable donations per capita. This community has many other virtues that are best left to the local Chamber of Commerce to extol.

[40]        If I may be forgiven for that lapse into facetiousness, I would simply remind any parties who feel disadvantaged or abused by the fact that their out-of-town counsel are required to personally travel here, that this city is home to a large number of very able and competent lawyers and law firms and those parties may wish to consider the option of retaining local counsel as an alternative. I don’t view this as supporting the concept of abuse of process.

[41]        Abuse of process is a very broad legal doctrine which allows a court to prevent those who attempt to abuse the process of the court from doing so. It is not meant to impede those with legitimate issues that they wish to resolve from using legal process to do so. That is what civil courts are here for, to offer a fair and impartial method of dispute resolution.

[42]        Sometimes persons will attempt to use the process of the court as a means of harassment or to create a nuisance for a defendant, without having any sort of meritorious claim. This is what the Counsel for the Defendant is alleging that the Claimant is doing in this case. In support of this position, Counsel referred to a statement attributed to the Claimant in his most recent Offender Security Level Report, “suggesting [the Defendant] screwed up his life, so he is going to screw up hers.” The Claimant denies making such a statement.

[43]        What Counsel for the Defendant is suggesting might well be the case. It is clear that the Claimant is very disappointed with the Security Level generated by the Case Management Team in which the Defendant participated. He appears to have exhausted all administrative avenues of review, and even if he had the means to secure further review in Federal Court, there does not appear to be any glaring error presenting itself as a wellspring of success in such litigation. He has fixed the blame for this on the Defendant. From a review of the Security Level Reports, it appears that he has fixed the blame in the wrong place. It is highly unlikely, given the circumstances of the offence for which he is incarcerated, that he will achieve the result he desires on the timetable he wishes. He will certainly not find what he is looking for in Small Claims Court. Even with complete success, a monetary award will not provide the result he is hoping to achieve.

[44]        The bringing of the present litigation is insufficient for dismissal of this Claim as an abuse of the process of the court. However in the event of any future litigation based on the same subject matter, without any new intervening, reliable and material circumstances, it would be hard to escape the conclusion that such litigation is being brought only for the purpose of harassment and nuisance. The best course of action for the Claimant to take is to move on from here and put any resentment or animosity he bears towards the Defendant in the past.

[45]        For the foregoing reasons, it is ordered that this Claim is dismissed, on the basis that it is without reasonable grounds, pursuant to Rule 7 (14) (i) and Rule 16 (6) (o) of the Small Claims Rules.