IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Allen Hammersmark is the initiating party of a claim brought to the Civil Resolution Tribunal (“CRT”) against the two responding parties, ICBC and Jonathan Gagne Ltee/Jonathan Gagne Holdings Ltd.

[2]           Jonathan Gagne Ltee/Jonathan Gagne Holdings Ltd. applies for an order that the CRT not adjudicate this claim pursuant to s. 12.1 of the Civil Resolution Tribunal Act (“CRTA”). Since the filing of the application, the CRTA was amended and the applicable section of the Act is now section 16.2.

[3]           Counsel for Jonathan Gagne Ltee/Jonathan Gagne Holdings Ltd. concedes that if I rule that the CRT not adjudicate the claim, the CRTA permits the claim to be pursued in the Small Claims Court. Counsel nevertheless invites me to consider dismissing the claim outright at this stage.

[4]           Mr. Hammersmark opposes the application.

[5]           ICBC takes no position.

[6]           No affidavit materials were filed in support or in opposition of this application. I was advised by counsel for the applicant that the Court Registry does not permit the filing of affidavits in relation to applications for exemption from the CRT. Rule 16.1 of the Small Claims Rules also appears not to contemplate the filing of affidavits in support of this application. As such I must rely upon the submissions of the parties and the documents filed pursuant to Rule 16.1(4).

[7]           Sections 16.2 and 16.3 of the CRTA states as follows:

[8]           Section 16.3 of the CRTA permits a claim to be continued in a court if an order is made that the CRT not adjudicate a claim.

[9]           On June 27, 2018 Allen Hammersmark filed a CRT claim against Canadian Tire Corporation, Limited. The Claim Summary stated:

[10]        Mr. Hammersmark stated in a section titled Requested Resolution “I want Canadian Tire to compensate me and investigate who did this.” Mr. Hammersmark sought compensation in the amount of $3,462.69, being the claimed repair costs.

[11]        On October 5, 2018, Mr. Hammersmark amended his claim. The original responding party, the Canadian Tire Corporation, Limited, was replaced by three parties: D & T Cummins Enterprises Ltd., Gestions Jonathan Gagne Ltee/Jonathan Gagne Holdings Ltd., and Vicki Gould Holdings Ltd. Counsel for the applicant advised me that each of these responding parties are franchise holders for a particular Canadian Tire store.

[12]        The description of the claim as was set out originally as against Canadian Tire Corporation, Limited remained the same as did the Requested Resolution.

[13]        On January 3, 2019, Mr. Hammersmark amended his claim for a third time. He removed two of the responding parties, leaving Gestions Jonathan Gagne Ltee/Jonathan Gagne Holdings Ltd., and adding ICBC as a new responding party. The description of the claim remained the same. The claim under Requested Resolution remained the same.

[14]        On January 24, 2019, Mr. Hammersmark amended his claim for a fourth time. The description of the claim remained the same. However, Mr. Hammersmark changed the section titled Requested Resolution, now stating as follows:

[15]        The total claim remained $3,422.69.

[16]        The applicant provided written submissions setting out why the claim should not be permitted to proceed. I note that in those written submissions, Mr. Hammersmark is referred to as the “Claimant”, whereas in CRTA proceedings he is properly referred to as the “initiating party”. The submissions state:

[17]        The applicant did not advise me of any further particulars.

[18]        The applicant says that it did service Mr. Hammersmark’s vehicle, which Mr. Hammersmark says occurred in January 2018. The brake failure occurred in March 2018. The applicant says there is no evidence to tie its service job to the brake failure.

[19]        Mr. Hammersmark provided me with a written summary of his claim. He stated that there was evidence that oil was deposited into the brake reservoir of his vehicle, causing a brake failure. Since January 2017, his vehicle was only serviced by three Canadian Tire franchises. Mr. Hammersmark says that on January 20, 2018, the Canadian Tire store located in Tsawwassen, BC, which is owned and operated by the applicant, performed an oil change on the vehicle. The vehicle brakes subsequently failed in March 2018.

[20]        Mr. Hammersmark further states:

[21]        Mr. Hammersmark appears to be asking the CRT to infer negligence by the applicant based on the circumstances, a concept that may be best described in law by the legal maxim res ipsa loquitur, a Latin phrase that translates to “the thing speaks for itself.” The Supreme Court of Canada discussed this legal concept in the decision Fontaine v. British Columbia (Official Administrator), 1998 CanLII 814 (SCC), [1998] 1 SCR 424, stating at paragraph 27:

[22]        Mr. Hammersmark further says that his claim is a simple case for which the CRTA was designed to handle.

[23]        There is very little in the way of Court decisions dealing with an application for exemption.

[24]        The decision Yas v. Pope, 2018 BCSC 282 dealt with an application to the BC Supreme Court that the CRT be prevented from dealing with two claims involving a strata property pursuant to s. 12.2 of the CRTA as it then stood. In that case, the court focused on the factors set out at s. 12.3 of the CRTA (now section 16.3) in deciding whether it was in the interest of justice and fairness for the CRT to resolve the dispute. Any such assessment of course depends on the particular facts of each case.

[25]        In McTavish et al. v. 1534 Harwood Street (St. Pierre) Ltd., 2018 BCPC 392, I considered an application for exemption from the CRT and also considered the factors now listed at s. 16.3 of the CRTA.

[26]        Although the applicant argues that it is not in the interests of justice and fairness for the CRT to adjudicate the claim, the applicant does not rely upon any of the factors cited in s. 16.3 of the CRTA. In review of those factors, none of the considerations listed at ss. 16.3(1)(a) to (f) have any application to this case.

[27]        The applicant submits that s. 16.3 still permits the court to take into consideration factors other than those listed in s. 16.3 when deciding whether it is in the interests of justice and fairness for the tribunal to adjudicate a claim. Section 16.3 of the CRTA expressly states that “the court may consider the following...” [emphasis added]. The section is permissive and does allow the court to consider factors other than those listed at s. 16.3. Indeed, I did so in McTavish et al. v. 1534 Harwood St. (St. Pierre) Ltd., at paragraphs 45 to 47.

[28]        The gist of the applicant’s argument is that there is no evidence to support the claim. Furthermore, the four amendments made to the claim are indicative of a “fishing expedition” wherein Mr. Hammersmark is effectively searching for a party to be held liable.

[29]        The applicant further states in its written submissions:

[30]        In my view it is a mistake to require the same level of detail in pleadings expected in a Supreme Court case for a claim under the CRTA. The required forms under the CRTA do not require such. A requirement for detailed pleadings is also contrary to the simplified processes under the CRTA.

[31]        I am not aware of any caselaw that deals with the pleadings in a CRT action. There is caselaw that discusses pleadings in Small Claims Court actions, a court which is intended to resolve disputes in a “just, speedy, inexpensive and simple manner”: see s. 2(1) of the Small Claims Act, [RSBC 1996], c. 430. The purpose of the CRT is similar. Section 2(2)(a) of the CRTA states:

[32]         The decision Ginther v. Rossum, 2012 BCPC 51 stated at paragraph 23 that the court should not expect from an unrepresented claimant in a Small Claims Court action the same standard expected from a lawyer when preparing pleadings. This statement is equally applicable to claims under the CRTA, and in particular to the initiating party, Mr. Hammersmark, who does not have the assistance of a lawyer.

[33]         In the decision Menzies v. Owners, Strata Plan NW2924, 2014 BCPC 216, the court stated:

[34]        Given the simplified procedures found under the CRTA, caution must be used when referring to BC Supreme Court cases discussing the requirements and expectations for pleadings in that court.

[35]        The essential nature of Mr. Hammersmark’s claim was set out in his Dispute Notice. His vehicle was serviced at a Canadian Tire location. Some time later the brakes on his car failed, apparently by oil contaminating the brake fluid. The evidence in support of the claim is listed in the Dispute Notice.

[36]        Mr. Hammersmark is not required to provide the level of detail in his pleadings filed with the CRT as may be expected from a litigant in the Supreme Court. The allegations set out in the Dispute Notice provide a brief description of the facts supporting the claim. In my view, this is sufficient for the purposes of the CRTA.

[37]        The applicant further argues that the various amendments made by Mr. Hammersmark are a “fishing expedition” and indicative of a weak and groundless case. It appears to me that each successive amendment was made to narrow the claim down to the specific Canadian Tire franchisee and to add in ICBC based on possible insurance coverage for the damage. Given that Mr. Hammersmark lacks legal assistance, his uncertainty of the proper responding parties is understandable, especially when dealing with multiple franchise companies operating under the common business name of Canadian Tire. Taking into account the nature of the various amendments to the Dispute Notice, I do not find there to be an abuse of process.

[38]        The applicant also argues that Mr. Hammersmark has no evidence to support his claim. Whether that is the case is to be determined at a hearing, and not in an application for exemption, made without even the benefit of affidavit evidence. I note that none of the considerations listed in s. 16.3 require the weighing of evidence. In my view, an application for exemption should not involve a weighing of the evidence, other than what might be required to assess the importance or complexity of an issue.

[39]        There is no statutory authority under the CRTA or the Small Claims Act for the Provincial Court to dismiss a claim filed with the CRT, even if I should conclude that there is no prospect of success. The Small Claims Court is not a court of inherent jurisdiction. The powers held by the court are powers bestowed upon it by legislation. In order for this court to dismiss a CRT claim, specific statutory power to do so must be granted to this court, which has not occurred: see Dalla Rosa v. Town of Ladysmith, 2017 BCPC 178.

[40]        The specific power of a Small Claims Court to dismiss a claim is found at Small Claims Rule 7(14)(i), which is a power held by a settlement conference judge: see for instance Lura v. Jazz Forest Products (2004) Ltd., 2014 BCPC 14. This power applies only to claims filed with the Small Claims Court and not the CRT. Mr. Hammersmark’s claim must first be brought into the Small Claims Court before this court can consider an application to dismiss the claim under Rule 7(14)(i). The Small Claims Court lacks the statutory power to dismiss a claim that remains with the CRT.

[41]        Section 35 of the CRTA sets out a procedure for when a case manager considers a claim to have no reasonable likelihood of success. The section allows a case manager to dismiss a claim if the case manager is also a tribunal member. Alternatively, the case manager may refer the file to the tribunal for further action. The section reads:

[42]        The written submissions from the applicant state that on December 13, 2018, the applicant requested that the case manager dismiss the claim against the applicant. I was not told if this request was made pursuant to s. 35. The submissions also do not indicate what the response of the case manager was but I presume that since this matter is still ongoing the application to dismiss was refused.

[43]        On the assumption that the CRT case manager refused an application to dismiss the claim pursuant to s. 35 of the CRTA, and the applicant disagrees with this decision, then the applicant may seek a judicial review under the Administrative Tribunals Act: CRTA s. 56.6. If there was a case manager decision not to dismiss the claim, then a subsequent application to this court to dismiss the claim is an attempt to re-litigate that same issue. If such is the case, then this is improper.

[44]        I am not satisfied that for reasons of justice and fairness, the CRT should not adjudicate this claim. The claim will therefore remain with the CRT for adjudication. In such a situation, there is no authority for this court to dismiss a claim that remains with the CRT. Accordingly, I dismiss the application.