IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The Claimants Morris Klos and Gerarda Klos (also known as Gaya Klos) have filed a Notice of Claim in this action which asserts a variety of claims against fourteen separate Defendants. The Claim was originally filed on July 14, 2020, and has been amended on three further occasions (August 28, 2020, September 11, 2020, and September 30, 2020.)

[2]         Of the fourteen Defendants who are sued by the Claimants, five of these are churches (Maranatha Canadian Reformed Church, Canadian Reformed Church of Langley, Canadian Reformed Church of Aldergrove, Canadian Reformed Church at Yarrow, and Canadian Reformed Church of Abbotsford) and these Defendants will collectively be referred to as the “Churches”. The other Defendants are the Fraser Valley Soccer Association (which will be referred to as the “Soccer Association”), Jonathan Gelderman Personal Real Estate Corporation (which will be referred to as “Gelderman”), and seven individuals (Tako Van Popta, Mike Stam, Shauna Stam, Len Stam, Hennie Stam, Clasina Klos-DeJong and Henry Klos). All of the Defendants are represented by Mr. Moes as counsel except for Gelderman (represented by Ms. Hyatt) and Clasina Klos-DeJong and Henry Klos, who are self-represented.

[3]         On behalf of his clients, Mr. Moes has brought an application to dismiss the claims made against his clients on a number of grounds, including because they fail to disclose any reasonable cause of action, they seek relief that this court does not have jurisdiction to award, and because they constitute an abuse of process. He also seeks an order of costs against the Claimants.

[4]         The Claimants oppose this application or alternatively ask that it be adjourned until disclosure of documents can be ordered. In response, Mr. Moes argues that if he establishes his grounds for dismissal, then the issue of disclosure becomes irrelevant. For example if a claim sought is beyond the jurisdiction of the court, all the disclosure in the world doesn’t fix this.

[5]         The Defendant Gelderman plans to bring its own application to dismiss the Claim which the Claimants have brought against it. Counsel for Gelderman questions whether or not the Claimant Gerarda Klos (also known as Gaya Klos) is aware that the Claim is being brought. The Claimant Morris Klos has represented to this Court that she is aware of this Claim and that he is acting with her authority, but that the state of her health prevents her from participating in this hearing.

[6]         The Defendants Clasina Klos-DeJong and Harry Klos say that they take no position on this application, which I take to mean that if Mr. Moes is successful in obtaining dismissal of some or all of the Claims against his clients, and if the principles supporting that dismissal also apply to the claims brought against them, then they are happy to have the claims brought against them dismissed as well.

[7]         There are two core principles which apply to an application to dismiss a claim before it has been heard on its merits:

[8]         At a settlement conference, the judge acts as a “gatekeeper” whose function it is to determine which claims do and do not merit the assignment of the valuable resource of court time. The provision of one’s “day in court” is not an absolute right. This is especially so at this time when court resources have become limited because of the current pandemic, but even absent in today’s special circumstances, this principle has always applied. The child who is in foster care awaiting a trial to determine his or her future should not be delayed because of civil litigants wishing to use court time as a soapbox to complain of hurt feelings while asserting a claim with no chance of success. Nor should taxpayers have to foot the bill for such. A small claims court judge has the ability to deny litigants their day in court if the outcome of the litigation can be decided at an earlier stage. A judge has the obligation to close the gate on litigation that is without merit in order to optimize the limited resources of the court.

[9]         The Small Claims Court Rules contemplate that this gatekeeping exercise will usually take place at the settlement conference. However, the application may also be brought before the settlement conference, as has been done in this case, especially if the judge is satisfied that doing so is in keeping with the direction contained in s. 2 of the Small Claims Act to try to resolve claims “in a just, speedy, inexpensive and simple manner.” In Treminio v. Aveda Institute, 2017 BCPC 348, the Honourable Judge Mrozinski of this court wrote:

[10]      The power to dismiss a claim prior to trial arises out of Rule 7(14) which allows a small claims court judge to:

[11]      In Lura v. Jazz Forest Products (2004) Ltd., 2014 BCPC 14, some of the more common situations when the rule has been applied to prevent a case from proceeding to trial were listed in para. 12. They include:

[12]      To many civil litigants, their small claims matter is the most important file at the court house. It may be the only matter which ever brings them to court. This must be balanced with the interests of the community as a whole. It would be offensive to taxpayers for significant resources of court time (which run in the thousands of dollars per day) to be spent on a matter which has no reasonable prospect of success. This cannot reasonably be accommodated in any accountable system.

[13]      For those litigants whose claim or defence lacks merit, but who are determined to have their day in court, if only to cause annoyance or frustration to the other side, or in the hope of reaping an undeserved settlement, it is especially important that a small claims court judge prevent a waste of trial resources by applying the remedy of dismissal prior to setting a trial or even a settlement conference. In Sterritt v. Governor-General of Canada, 2019 BCPC 123, the Honourable Judge Flewelling of this Court wrote:

[14]      It is based on this authority that some of the Defendants apply for dismissal of all of the claims brought by the Claimant. The Claimant fairly acknowledges that some of the claims may merit dismissal, but others do not. Each of the applications will be analysed according to the grouping proposed by counsel for the applicant Defendants.

[15]      The Claim brought by the Claimant alleges a wrongful dismissal of employment with the Soccer Association, for which he seeks damages. His claim against the Churches is described in the most recent Amended Notice of Claim as being for “refusal to intervene, public shaming,” and because they have “strayed from objects”. The remedy he seeks is an order requiring the churches (and most of the other Defendants) to provide a “video apology” and that any amounts ordered to be paid by the churches should be paid to “Revenue Canada” and that their charitable status be suspended for one year.

[16]      The Amended Claim goes on to allege that the Maranatha Canadian Reformed Church admonished the Claimant to attend church, following which he was granted full membership in the church. He also alleges that he was denied participating in the Lord’s Supper Celebration, and was denied a hearing. He also alleges that he was forced to sit in a public display of discipline that was broadcast on the internet. He complains that the church acted with malice and also complains that he donated to the church with the expectation that he would be able to participate in the Lord’s Supper Celebration.

[17]      As for the other churches, the Amended Claim states that they have been added “to reduce the number of Defendants where numerous of their officials acted or failed to act with malicious intent to cause harm to the plaintiffs”.

[18]      Counsel for the Churches argues that the claims brought against the Churches do not disclose any cause of action or triable issue, they are frivolous and vexatious, and that they are brought solely for the purpose of annoyance and harassment.

[19]      Counsel relies on the authority of the decision of the Supreme Court of Canada in Highwood Congregation of Jehovah’s Witnesses v. Wall, 2018 SCC 26 in support of the contention that this court lacks jurisdiction to grant a remedy for an individual who feels aggrieved with a decision of a voluntary organization such as a church. Superior courts may intervene to review a decision of a state actor such as a government in an appropriate case. However if a person feels wronged by a decision made by a voluntary organization, the person has the remedy of simply leaving the organization. The court held that membership in a religious organization, where no civil or property right is granted by virtue of such membership, should remain free from court intervention. The court held that there is no free-standing right to procedural fairness with respect to decisions taken by voluntary associations. Simply because a breach of natural justice on the part of that organization is alleged and that the complainant has exhausted the organizations’ internal processes does not mean that the individual will have a right to a remedy by a court.

[20]      The Supreme Court held that courts should not decide matters of religious dogma. Judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine are not ones for determination in a courtroom.

[21]      The Small Claims Court is a court created by statute. Generally speaking, it has only the powers conferred by statute. The type of claims the court can hear are set out in s. 3 of the Small Claims Act. That section also expressly provides that the court “does not have jurisdiction in a claim for libel, slander or malicious prosecution.” One of the things that the Small Claims Court does not have the jurisdiction to do is to grant injunctions (court orders prohibiting parties in a civil suit from doing certain things) or orders compelling a party to do certain things.

[22]      The Claims brought against the Churches by the Claimants are clearly not ones that this court has the authority to adjudicate. Firstly, they ask this court to make an order making the Churches “intervene”. The Claimants fault the Churches for “refusal to intervene.” The implication from this is twofold. Either they should be forced to intervene, something that this Court clearly lacks the power to do. Alternatively they should pay damages as the result of their failure to intervene. But in neither the Claim itself, or in the argument of this motion, do the Claimants show why the Churches are liable at law for any failure to do so.

[23]      The Claimants’ criticism of the Maranatha Church arises out of their conduct of church affairs, including their decision to deny him participation in the Lord’s Supper Celebration, their conduct of disciplinary proceedings, and their use of money donated to the Church. These are all matters which the Supreme Court of Canada has found to be clearly not matters as the subject of court proceedings. The Claimants’ remedy is found firstly within the procedural rules of the Church. If those are unsatisfactory, the next remedy is to leave the Church and to cease making any contributions to it.

[24]      The claims brought against the other Churches have even less substance to them. The Claimants say that they have sued them because they have “wilfully acted or declined to act to mitigate damages or resolve this matter prior to” commencement of this Claim. They allege that they have acted with malice and asks this Court to order them to provide a “video apology.” The Claimants have failed to explain how the Defendants are responsible at law for the damages they claim to have suffered, why there is any duty on these parties that he has no legal relationship with to intervene and to mitigate his damages. Despite failing to allege any sort of legal claim against these parties, he has joined them in a lawsuit, something that their counsel states amounts to harassment, nuisance and vexatious litigation.

[25]      These Claims should all be dismissed for a number of reasons. Firstly, they ask for relief that this court lacks the power to provide. The Small Claims is not empowered to force parties to make video apologies when no legal relationship exists between the parties and no legal wrong has been identified. They seek legal recourse for matters that concern the conduct of church activities, something that this court is prohibited from doing. They are also claims brought against unincorporated voluntary associations, and should also be dismissed for that reason.

[26]      Especially troubling is that these claims do present as appearing to have been brought for the purpose of harassment, annoyance and nuisance. They do not allege any valid claim, and yet the Defendants are required to respond to them. Even though a claim may lack substance, defendants are still required to file a Reply, pay the filing fee, and attend scheduled court appearances. Some litigants may choose to retain legal counsel, not an insignificant expense. The time utilized in court to address an insubstantial claim is time that could be utilized for more deserving cases, such as those involving the future of children in care, or criminal cases that might otherwise be dismissed for delay. To require defendants in these cases to do all of this in response to a claim that has no chance of success is not only unfair, it is also vexatious and is an abuse of the court’s process. The practice of a claimant bringing one or more claims that have no chance of success only to vex opposing parties, or as some sort of megaphone for indignation or therapy for hurt feelings, is an abuse of the court’s process and one which must be discouraged in order that the limited resource of court time can be utilized by those with legitimate need of its use.

[27]      The claims which the Claimants bring in this case have no chance of success. They do not ask for remedies which this court is authorized to grant, and do not allege claims which are actionable at law or which the court has jurisdiction to grant. The applicant Defendant Churches have established entitlement for an order dismissing the claims against them, and that portion of the Claims seeking relief against the Churches is dismissed, with costs under the Small Claims Rules assessed against the Claimants.

[28]      Unlike the Churches, the Soccer League is incorporated as a non-profit society. Under the provisions of s. 6 of the Societies Act it “has the capacity, rights, powers and privileges of an individual of full capacity.” This means that it can sue or be sued in a civil action.

[29]      The Claimants say that the Claimants’ employment (presumably the Claimant Morris Klos) was terminated without cause, and under circumstances that were humiliating and calling for punitive damages. On the surface, this is a Claim for which the Small Claims Court would have jurisdiction to hear. Wrongful dismissal occurs when an employer dismisses an employee without cause and without giving sufficient notice. A minimum notice period is set out under Part 8 of the Employment Standards Act, but even greater periods of notice can be required depending on the nature of the employment or the terms of an employment contact.

[30]      Before a claim for wrongful dismissal can be made, an employer-employee relationship must be found to exist. In the present case, the Claimant Morris Klos was a referee at soccer games for the Soccer League. According to the records of the Soccer League, Morris Klos refereed approximately 15 soccer games per year and was paid between $60 and $70 per game. No written contract was entered into between the Soccer League and Mr. Klos. No set number of games or hours were guaranteed to referees. The Soccer League could pick whichever referee it wished for each of the games. It did not have any sort of payroll account for its referees and did not make any payroll deductions from its payments to referees.

[31]      The Claimants do not dispute any of these facts. In response however, they argue that they should have a remedy against the Soccer League because they say that Mr. Klos was an employee under the Employment Standards Act and that they allege that the Soccer League acted maliciously in dismissing Mr. Klos from that employment.

[32]      Counsel for the Soccer League argues that Mr. Klos was not an employee of the Soccer League, he was an independent contractor, and in that case, he has no claim for wrongful dismissal. Counsel relies on the authority of two decisions of the British Columbia Supreme Court, Jacks v. Victoria Amateur Swimming Club et. al., 2005 BCSC 778, and Farren v. Elite Service Group Inc., 2020 BCSC 23. Both of these decisions are binding on this court. In Farren, Justice Iyer wrote:

[33]      As a general rule, persons who officiate sports for non-professional leagues are not considered to be employees of those leagues. The leagues are not required by law to maintain payroll records or make statutory deductions from the remuneration paid to the referee or umpire. This is because no contract of employment exists. Unlike in contracts of employment, the sports official is free to refuse to officiate any game, and the league can pick and choose whoever it likes to officiate at its games. If the league decides that it no longer wishes to use an official for its games, whether it is because it believes the official to lack competence, be of ill temperament, or for almost any other reason, it is free to do so, and save for certain exceptions (for example, discrimination on a prohibited ground), it is not acting unlawfully in doing so.

[34]      The Claimants’ argument that Mr. Klos is protected under the Employment Standards Act does not save this Claim because Mr. Klos was not an employee of the Soccer League, based on facts that he admits. Even if the league acted maliciously, malice or pettiness in and of themselves do not give a right of action. These things may become relevant only once an actionable wrong has been proven. This is not meant to encourage people and organizations to act rudely or unkindly. It is simply the case that the use of court time is not justified to decide if someone was rude to someone else where there is no cause of action such as breach of contract or commission of a tort.

[35]      It is clear from the outset that a claim for wrongful dismissal by a soccer referee against a non-professional league, where there is no suggestion of breach of a term of a contract and no relationship of employment, must fail. No further court time should be utilized on such a claim. The Claim against the Soccer League is dismissed with costs.

[36]      The Defendant Tako Van Popta is an elected Member of Parliament and it is not alleged by anyone, including the Claimants, that he has committed any wrong against the Claimants or anyone else for that matter. In spite of this, the Claim in this action asks this Court to order this Defendant and another MP (who has not been named as a defendant in this case) to go on an “escorted prison tour.”

[37]      The Claimants have acknowledgement in the argument of this matter that this Claim should fail. This court lacks the power to compel the Defendant Van Popta to go on such a tour, and even if it did, the Claimants have not shown why this should be done. The Defendant Van Popta has not committed any tort against the Claimants or breached any contract with them, and they have not established any cause of action against him. This claim is a clear example of one that is frivolous, vexatious and which discloses no triable issue. The Claim against the Defendant Van Popta is dismissed with costs.

[38]      The Claimants have sued four members of the Stam family: Mike Stam, Shauna Stam, Len Stam and Hennie Stam. The Claim alleges that the Stams “wilfully acted or declined to act to mitigate damages or resolve this matter”. Much as in the case of Mr. Van Popta, the Claim does not establish any cause of action against the Stams. It does not allege that they personally have committed any wrong against the Claimants.

[39]      There is no duty at law that they are alleged to be in breach of. It is not up to persons like the Stams to mitigate any damage that the Claimants have suffered, that duty falls on the Claimants themselves. While everyone should be encouraged to resolve disputes without taking court action, persons are not subject to be sued for damages merely by failing to do so, especially persons like the Stams who are bystanders and not directly a party to any dispute between the Claimants and the Churches or the Soccer League.

[40]      During submissions, Mr. Klos stated that there were many other persons like the Stams that he could have added as Defendants in this claim, persons who were members of other church families. Doing so would appear to have no other purpose than to serve as a form of harassment, annoyance or vexation of those individuals, perhaps with the hope that some of them might contribute money to settle a nuisance claim. If so, this is a practice must be strongly discouraged, whether it be by costs against the vexatious litigant or otherwise. Use of limited court time for this purpose robs or delays more deserving litigants of their court time.

[41]      The Claims against the Stams do not disclose any triable issue and constitutes an abuse of the court’s process. These Claims are dismissed with costs.

[42]      Henry Klos and Clasina Klos-DeJong appeared at the hearing and took the position that they would simply abide by any decision made by this court with regard to the dismissal of the Claims that have been brought against them. The Claimants have brought an action against them which alleges that they are in breach of a rental agreement. The Claim alleges that they offered to guarantee a lease for a studio apartment that the Claimant was leasing. The Claim does not allege that this was part of any bargain in which consideration was given by the Claimant in return.

[43]      There is an initial difficulty that is clear from this Claim. The facts alleged by the Claimants, even if proven, do not amount to any sort of contract. A one-sided promise does not give the promisee a right to bring an action against the promisor, even when the promisee has acted to his detriment in reliance on the promise, unless the promisee has given something in return. As the authors of The Law of Contracts, 2005, Irwin Law. Inc., state at page 211:

[44]      If a person promises to do a good deed for another, without receiving any consideration in return, such a promise is not generally enforceable in a court action. The person who made the promise is free to change his or her mind, whether it is because he or she believes that the promisee is no longer deserving of the benefit conferred by the promise or for some other lawful reason.

[45]      The Claim alleges only that these Defendants offered to sign a guarantee of the Claimants lease. It does not allege that such a guarantee was ever signed. The Claimants say that they later changed their mind after the Claimant Gerarda Klos agreed to sign the guarantee.

[46]      These Defendants were free to change their mind prior to the actual signing of the lease, and so even on the facts alleged by the Claimant, no triable issue has been disclosed and the Claim has no apparent prospect of success

[47]      Accordingly, the Claim against the Defendants Clasina Klos-DeJong and Henry Klos is dismissed.

[48]      As was stated earlier, the Claimants have said that there were many other persons that they could have added as Defendants in this claim, persons who committed no direct wrong, but who have been on the periphery of a dispute between the Claimants and other individuals. Mr. Moes in his written submission alleges that this appears to have no other purpose than to serve as a form of harassment, annoyance or vexation, perhaps with the hope that some sort of nuisance offer will be made to settle these claims. He asks for the entire Claim to be struck as an abuse of process.

[49]      Mr. Moes cites a decision of this Court, Sterritt v. Governor General of Canada, 2019 BCPC 123, in which the Honourable Judge Flewelling of this Court made these comments:

[50]      I strongly agree with these comments. Court time in this province is valuable. Often children who have been removed from their homes by the Ministry of Children and Family Development remain in foster care for years with their future in limbo because there is limited court time available to schedule their continuing custody trials. Serious criminal matters sometimes get dismissed because court resources do not allow for the constitutionally guarantee right of trial within a reasonable time. It is for that reason that Judges in Small Claims Court should not hesitate to dismiss a claim if it has no reasonable prospect of success. The claimant who presents an arguable case for breach of contract, or who alleges the commission of a tort or who seeks other relief that the Small Claims Court is empowered to grant should be heard in court. But those claims that do not allege a valid cause of action, or which can be determined summarily on agreed facts or on some clear point of law should be decided promptly without using the court time required for a settlement conference or trial.

[51]      On September 11, 2020, the Honourable Judge Ritchie of this court dismissed an application by the Claimants to prevent a storage company from auctioning items in their rented storage unit until this action was completed. Judge Ritchie dismissed that application and informed the Claimants that as a court of statute, the Provincial Court could only make orders permitted under the Small Claims Act and Rules. They were informed that the Court could not grant injunctions.

[52]      Mr. Moes asks that the entire Claim be dismissed because it is vexatious and an abuse of process. He has been successful in accomplishing this on a claim by claim basis. The only portion of the Claim which has not been dismissed thus far is that portion brought against the Defendant Jonathan Gelderman Real Estate Corporation, which will make its own application to dismiss the Claim.

[53]      If the concern is that the Claimants will continue to use harassing tactics by adding more Defendants, such as other church members, this can be addressed in two ways. Firstly, an order can be made, as was done by Judge Flewelling that the Claimants shall not commence any new legal proceedings, make further applications in this matter or file any document in any new proceedings in any registry of the Provincial Court of B.C. without leave of the Court.

[54]      Secondly, Rule 20(5) provides that a judge may order a party to pay the other party up to 10% of the amount claimed or the value of the claim or counterclaim if the party made a claim, counterclaim or reply and proceeded through trial with no reasonable basis for success. This remedy has not been sought in this application. However, if the Claimants were to persist in bringing unreasonable claims, they risk being ordered to pay thousands of dollars in additional costs, should the defendants in those cases request it.

[55]      Before bringing any further claims or proceeding with the remaining claim against Gelderman, the Claimants may wish to contact the BC Lawyer Referral Service for advice. This may entitle a free half-hour consultation to obtain professional advice about whether any claims they wish to bring are valid ones or whether they should be abandoned.

[56]      From a review of this file, it appears that much of the action taken by the Claimants may have arisen out of a desperate financial plight. It may be that a charitable attitude on the part of some or all of the Defendants might get to the root of the problem and help the Claimants out. But the Defendants may be reluctant to do so for fear that trying to help the Claimants will only result in the expectation of entitlement, which may in turn result in more lawsuits being brought against them. This appears to be what has happened in the case of Henry Klos and Clasina Klos-DeJong, who offered to help with the Claimants rent, only to end becoming Defendants as the reward for their generosity. The Claimants may wish to rethink their strategy of using litigation as a means of solving their problems, and look for alternative means that are more conducive to a mutually respectful resolution.

[57]      The Claims against all of the Defendants (except Jonathan Gelderman Personal Real Estate Corporation) are dismissed with costs. Each Defendant who has filed a reply shall be entitled to costs of the filing fee paid for that reply ($50).

[58]      It is further ordered that that the Claimants shall not commence any new proceedings in this court, nor make further applications in this matter or file any document in any new proceedings in any registry of the Provincial Court of B.C. without leave of the Court. Application for such leave may be by an application for a desk order.