Brown v. Insurance Corporation of British Columbia, 2020 BCPC 88 (CanLII)
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2020 BCPC 88 |
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Date: |
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File No: |
C7576 |
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Registry: |
Campbell River |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
Civil
BETWEEN:
MERVYN BROWN
CLAIMANT
AND:
INSURANCE CORPORATION OF BRITISH COLUMBIA;
BILL HOWICH CHRYSLER LTD.;
BILL HOWICH RV;
PETE'S TOWING 1985 LTD; and
PETE'S TOWING LTD.
DEFENDANTS
RULING ON APPLICATION FOR URGENT HEARING
OF THE
HONOURABLE JUDGE FLEWELLING
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Campbell River, B.C. |
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Date of Judgment: |
April 27, 2020 |
Introduction
[1] The claimant, Mervyn Brown, has filed an Application for an Urgent Hearing seeking permission to amend his Notice of Claim (originally filed October 23, 2019). A settlement conference in this matter was held on February 4, 2020 and as a result he requires the permission of a judge: Small Claims Rule 8 (1).
[2] Mr. Brown’s action relates to an insurance claim with the defendant Insurance Corporation of British Columbia (ICBC) as a result of loss and damage by vandalism to his motor home which he says occurred on or about April 21 to 22, 2019. He has also brought a claim against Bill Howich Chrysler Ltd and Bill Howich RV for what he alleges are deficiencies with the repair work undertaken by them. His claim also relates to loss and damage to the transmission of the motor home which he says occurred as a result of the manner in which it was towed by the defendants Pete’s Towing 1965 Ltd. and Pete’s Towing Ltd.
[3] Replies have been filed by Pete’s Towing Ltd., Bill Howich Chrysler Ltd. and ICBC. At the conclusion of a settlement conference held on February 4, 2020, a second settlement conference was scheduled to take place on May 26, 2020.
Discussion:
[4] Due to the COVID-19 pandemic, normal court operations have been suspended. In British Columbia the state of emergency continues and we are all being guided by the orders and directions of the Provincial Health Officer - Dr. Bonnie Henry.
[5] As a result of this situation, only applications respecting urgent matters will be heard by a Judge by telephone or video. On April 14, 2020, Chief Judge Gillespie issued a Notice to the Profession and Public to provide some guidance as to what would be considered urgent in small claims matters. Those include applications:
a) Regarding outstanding warrants;
b) To preserve limitation periods if required;
c) To extend the time for filing pleadings where permitted under the small claims rules; and
d) To renew notices of claim.
[6] Mr. Brown's application for leave to file an Amended Notice of Claim does not fall within any of those categories. There are no looming deadlines that would unduly prejudice him or cause irreparable harm if his application was not heard and allowed at this time.
[7] The reason Mr. Brown considers this an urgent matter is that he wishes to provide his Amended Notice of Claim to all the defendants in advance of the next and upcoming settlement conference. He is of the view that his Amended Notice of Claim will "significantly reduce the claim amount and substantially clarify the pleadings and cause of action.”
[8] Although this case is currently scheduled to proceed to a case conference on May 26, 2020, whether or not that actually proceeds (at least on an in person basis) will be determined over the next few weeks or so.
[9] Mr. Brown indicates that shortly before the settlement conference on February 4, 2020, he was served with an Amended Reply filed by the Insurance Corporation of British Columbia which had been filed on January 29, 2020.
[10] I have been able to review all the pleadings previously filed in this case. It is important to all the parties that a number of issues are clarified which will result in a more cost-effective and expeditious litigation process for all involved. Any orders I make will reflect the overarching purpose of Small Claims Act and Small Claims Rules to “allow people who bring claims to the Provincial Court to have them resolved and to have enforcement proceedings concluded in a just, speedy, inexpensive and simple manner”: Small Claims Act, [RSBC] c. 430, s. 2.
[11] When the Provincial Court resumes normal operations, there will be a backlog of civil, family and criminal cases. To further the best use of court resources and with that in mind, I am making a number of orders now and also intend to provide guidance to all the parties to enable them to have a more focused, meaningful and helpful settlement conference when it is held.
[12] The first Reply filed by the Insurance Corporation of British Columbia was simply a bare denial of Mr. Brown's claims and allegations. The second Reply sets out much more detail explaining the basis for the defence that they expect to advance. The Amended Reply raises a number of issues including one of jurisdiction. Citing s. 176 and s. 177 of the Insurance (Vehicle) Regulation, they say that a dispute between Mr. Brown and ICBC regarding loss or damage to a vehicle must be resolved by arbitration. Although not specifically stated in the Amended Reply, pursuant to the Regulation this would occur in accordance with the Commercial Arbitration Act.
[13] Mr. Brown is a self-represented litigant. People who do not have the benefit of counsel to assist them in the drafting of pleadings should be given some leeway by the court if documents need to be amended to properly articulate the claim or defence. In this case, Mr. Brown should have an opportunity to seek leave to file an Amended Notice of Claim particularly if the purpose is to clarify the issues and reduce the amount of his claim. Ultimately, it will help the parties resolve the case or decide which next steps are needed to bring this case to a final resolution.
[14] This is not a matter that is urgent so as to justify a hearing. Furthermore, none of the defendants have had an opportunity to respond to his application. In keeping with my intent to assist the parties in advance of the resumption of court operations, I will allow Mr. Brown to serve an unfiled draft of the Amended Notice of Claim upon all defendants and within a certain time frame. This will give the defendants an opportunity to respond and provide their position in writing prior to the currently scheduled settlement conference.
[15] Depending upon their response, I will then make further orders or directions which may involve a conference or hearing, by telephone, involving all parties.
[16] To that end, and to assist the parties by helping them clarify the issues, pleadings and determine the appropriate next steps, I will seize myself of this matter.
Conclusion:
[17] I make the following orders:
1. I am seized of this matter;
2. Mr. Brown’s Application for an Urgent Hearing is dismissed;
3. The Campbell River Court Registry is to draft the order reflecting my ruling;
4. By Tuesday, April 28, 2020 the Campbell River Court Registry will email or fax a copy of this decision and the entered order to Mr. Brown and each of the defendants;
5. By 4 PM May 5, 2020 Mervyn Brown is to serve his unfiled draft Amended Notice of Claim on all defendants and to the Campbell River Court Registry.
6. Mr. Brown is to serve the unfiled draft Amended Notice of Claim by fax or by email and he is to keep a copy of his email or fax confirming service in this matter;
7. By 4 PM, May 12, 2020 each of the defendants is required to provide a written response to Mr. Brown's application to file an Amended Notice of Claim;
8. The response must be sent to Mr. Brown and to the Campbell River Court Registry by fax or by email.
9. The Registry is directed to provide me with a copy, by email, of the unfiled draft Amended Notice of Claim and the defendants’ responses.
[18] Once I have received the draft Amended Notice of Claim and the defendants’ responses, I will provide further directions to the parties.
BY THE COURT:
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The Honourable Judge B. Flewelling
Provincial Court of British Columbia