IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         For the past four years the parties have been embroiled in a dispute with respect to a two-year Training Bond Agreement that Brooklyn Anderson signed on September 21, 2016, when he commenced his employment with Northern Thunderbird Air Inc. (“NT Air”). The dispute was initially adjudicated by the Civil Resolution Tribunal (the “CRT”) which concluded Brooklyn Anderson was liable for the outstanding balance owing under the Training Bond when he left NT Air’s employ for a higher paying job after one year. The CRT also denied Brooklyn Anderson’s counterclaim for unpaid wages and reimbursement for those sums he had already repaid under the Training Bond.

[2]         Brooklyn Anderson filed a Notice of Objection to the CRT’s decision and the litigation continued before the Provincial Court Small Claims division. The Provincial Court has repeatedly ordered Brooklyn Anderson to pay into court a deposit for those sums the CRT found owing. He has repeatedly failed or refused to pay the court-ordered deposit.

[3]         The issue before me is whether the court ought to make a default order in favour of NT Air as a result of Brooklyn Anderson’s failure to make the court-ordered deposit.

[4]         The applicant Northern Thunderbird Air Inc. (“NT Air”) is a small airline operator based in Prince George, British Columbia, offering charter and medevac services.

[5]         The respondent Brooklyn Anderson is NT Air’s former employee. On September 21, 2016, Brooklyn Anderson entered into a Training-Bond contract with NT Air wherein NT Air agreed to train Brooklyn Anderson to pilot its Beechcraft 1900 Airliner aircraft on certain terms and conditions. The Training Bond included a $10,000 Promissory Note from Brooklyn Anderson to NT Air. Brooklyn Anderson agreed to reimburse NT Air the pro-rata cost of the training if he left NT Air’s employ within two years (“Training Bond”). Brooklyn Anderson was to be credited for 1/24 of the Training-Bond debt for every completed calendar month of service.

[6]         The parties signed a separate employment agreement dated September 21, 2016, providing NT Air hired Brooklyn Anderson as a First Officer with a starting salary of $2,600 per month. Brooklyn Anderson’s employment was to commence when he completed a Pilot Proficiency Check with Transport Canada. Brooklyn Anderson completed the Pilot Proficiency Check on October 3, 2016.

[7]         Brooklyn Anderson worked for a year at NT Air. On October 2, 2017, he tendered his resignation effective October 16, 2017. At that time, Brooklyn Anderson had completed only 12 full months of employment. He had sought and obtained a job with Skylink Express, a Vancouver Company, at a starting wage of $70,000 piloting a Beechcraft 1900, a salary which was 2.4 times greater than what he was being paid at NT Air.

[8]         Upon Brooklyn Anderson’s departure, NT Air invoiced him $5,000, for the balance outstanding on the Training Bond. On October 31, 2017, Brooklyn Anderson paid NT Air $1,500. NT Air says this sum was paid in partial satisfaction of the balance owing on the Training Bond; Brooklyn Anderson says he paid it for his training files, which NT Air never produced.

[9]         On May 14, 2018, NT Air filed a dispute with the Civil Resolution Tribunal against Brooklyn Anderson in which it sought reimbursement for flight training pursuant to the terms of the Training Bond. NT Air claimed there was still $5,000 owing under the Training Bond when Brooklyn Anderson resigned. Post-termination, Brooklyn Anderson paid $1,500 towards the $5,000 outstanding under the Training Bond. NT Air claimed the balance owing under the Training Bond in the amount of $3,500.

[10]      On July 17, 2018, Brooklyn Anderson filed a Dispute Response asking the Civil Resolution Tribunal to deny NT Air’s claim and counterclaimed for $5,000, which included the $1,500 he paid towards his training files, plus $4,636.67 in unpaid wages.

[11]      On December 28, 2018, Tribunal Member Shelley Lopez issued a decision of the Civil Resolution Tribunal (“CRT”) in Northern Thunderbird Air INC. (Applicant) v. Brooklyn Anderson (Respondent) and Northern Thunderbird Air INC. (Respondent by Counterclaim). The decision was indexed as Northern Thunderbird Air INC. v. Anderson, 2018 BCCRT 915.

[12]      The CRT found in favour of NT Air and dismissed Brooklyn Anderson’s counterclaim. The tribunal member made the following orders:

[13]      In its Reasons for Decision, CRT cited the provisions of ss. 48 and 58.1 of the Civil Resolution Tribunal Act (“CRTA”):

[14]      On or about January 4, 2019, Brooklyn Anderson filed a Notice of Objection pursuant to s. 56.1 of the Civil Resolution Tribunal Act, SBC 2012, c 25 (“CRTA”), thus rendering the CRT decision unenforceable until a new hearing was conducted in the Provincial Court.

[15]      On January 10, 2019, the CRT issued a Certificate of Completion pursuant to s. 56.2 of the CRTA, indicating the dispute between NT Air and Brooklyn Anderson was resolved through a hearing under s. 30 of the CRTA.

[16]      Provincial Court Small Claims Rule 1.1 provides for the continuation of a dispute initiated before the Civil Resolution Tribunal. Specifically:

[17]      On March 5, 2019, NT Air sent to the Prince George Provincial Court Registry a letter enclosing a Notice of Civil Resolution Tribunal Claim Form 34 in response to Brooklyn Anderson’s Notice of Objection to the CRT and the CRT’s Certificate of Completion. NT Air filed the Notice of Civil Resolution Tribunal Claim pursuant to Small Claims Rule 1.1 on March 12, 2019, in Prince George Provincial Court Registry File 1955484 and recorded in the Provincial Court Electronic Information System (“CEIS”) as document number 1 (CEIS document 1).

[18]      In support of its Form 34, NT Air filed the CRT’s Certificate of Completion (CEIS document 6), which in turn attached: (a) NT Air’s Dispute Notice submitted to the CRT under s. 6 of the CRTA on May 14, 2018, and issued by the CRT on May 15, 2018 (CEIS document 3); (b) Brooklyn Anderson’s Dispute Response submitted to the CRT under s. 7 of the CRTA on May 24, 2018 (CEIS document 5); (c) Brooklyn Anderson’s Dispute Notice submitted to the CRT under s. 6 of the CRTA on May 24, 2018, and issued by the CRT on July 17, 2018 (CEIS document 4); (d) NT Air’s Dispute Response to Brooklyn Anderson’s Counterclaim submitted to the CRT under s. 7 of the CRTA on July 17, 2018 (CEIS document 5); and (e) the Corporate Summary for Northern Thunderbird Air Inc. (CEIS document 2).

[19]      Also on March 12, 2019, NT Air filed an Application for Deposit seeking an order requiring Brooklyn Anderson pay a deposit of $3,500 into court pursuant to s. 56.3 of the CRTA (CEIS document 7). Rule 56.3 of the CRTA states:

[20]      Tribunal Small Claims Regulation, BC Reg 232/2018, states:

[21]      The hearing of NT Air’s March 12, 2019 Application for Deposit (CEIS document 7) was scheduled for hearing on April 26, 2019 in Prince George Provincial Court.

[22]      On April 8, 2019, Sheryl McCrea, controller of NT Air, filed a Certificate of Service (CEIS documents 8 and 9) indicating on March 20, 2019, she served Brooklyn Anderson at [omitted for publication] Road, Richmond, BC, V7C 3M2, by registered mail with a copy of: (a) NT Air’s March 12, 2019 Application for Deposit (CEIS document 7); (b) NT Air’s Notice of Civil Resolution Tribunal Claim (CEIS document 1); (c) the CRT’s Certificate of Completion (CEIS document 6); (d) the CRT’s Dispute Notice issued May 15, 2018 (CEIS document 3); (e) the CRT Dispute Notice issued July 17, 2018 (CEIS document 4); (f) Brooklyn Anderson’s Dispute Response filed with the CRT on May 24, 2018 (CEIS document 5); (g) NT Air’s Dispute Response to Brooklyn Anderson’s counterclaim filed with the CRT on July 17, 2018 (CEIS document 5); and (h) the BC Registry Company Summary for Northern Thunderbird Air Inc. (CEIS document 2).

[23]      Sheryl McCrae attached to her April 8, 2019 Certificates of Service (CEIS documents 8 and 9), Canada Post tracking record RN364152982CA showing the Application for Deposit (CEIS document 7) was received by Canada Post on March 20, 2019, and delivered to the signatory named Brooklyn Anderson on April 1, 2019.

[24]      In his Dispute Notice and Response filed with the CRT on May 24, 2018, Brooklyn Anderson sets out his address as [omitted for publication] Road, Richmond, British Columbia, V7C 3M2, Canada; email [omitted for publication]; phone at (778) [omitted for publication] (CEIS documents 4 and 5).

[25]      Small Claims Rules 1.1(10) and (11) sets out the manner in which the filing party must serve the other parties with a Notice of Civil Resolution Tribunal Claim. They state in relevant part:

[26]      On April 23, 2019, NT Air filed an Application to the Registrar seeking leave to attend the April 26, 2019 hearing by telephone, which the Registrar granted (CEIS document 10).

[27]      NT Air’s March 12, 2020 Application for a Deposit (CEIS document 7) came before Judge S. Mengering on April 26, 2019. Sheryl McCrea appeared on behalf of NT Air; Brooklyn Anderson did not appear in person or by counsel or agent. Judge Mengering granted NT Air’s application and ordered Brooklyn Anderson pay a deposit of $3,500 pursuant to s. 56(3) of the CRTA (CEIS document 11). The order did not specify a time by which the deposit was to be paid into court. The court registry mailed a copy of Judge Mengering’s deposit order to the parties on May 23, 2019.

[28]      On August 29, 2019, NT Air filed a further Application to a Judge (CEIS document 12) seeking an order for a date certain by which Brooklyn Anderson pay into court the deposit of $3,500 per Judge Mengering’s April 26, 2019 Order (CEIS document 13). Judge Mengering ordered Brooklyn Anderson pay the $3,500 deposit to the Minister of Finance by 4:00 p.m. on September 26, 2019 (CEIS document 13).

[29]      November 14, 2019, NT Air sent a letter to the Prince George Court Registry enclosing its Application for a Default Order in Form 5 (CEIS document 15) as a result of Brooklyn Anderson’s failure to pay the $3,500 deposit ordered by Judge Mengering on April 26, 2019 (as varied on August 29, 2019). NT Air enclosed copies of its receipts from the CRT and Canada Post, together with a copy of Judge Mengering’s Orders made April 26, 2019 and August 29, 2019.

[30]      Rule 1.1(41.11) of the Small Claims Rules states:

[31]      Small Claims Rules 41.20 and 41.21 sets the process for the issuance of a default order. They state:

[32]      Rule 20(2) of the Small Claims Rules provides:

[33]      On March 2, 2020, Codi-Ann Huisman of NT Air filed a Certificate of Service (CEIS document 14) averring to have served Brooklyn Anderson on February 12, 2020, by registered mail at [omitted for publication] Road, Richmond BC, V7C 3M6 [sic], with a copy of (a) NT Air’s Application to a Judge filed August 29, 2019 (CEIS document 12) endorsed with Judge Mengering’s Order made that same day (CEIS document 13); (b) NT Air’s Application for a Default Order (CEIS document 15); (c) Judge Mengering’s April 26, 2019 Order (CEIS document 11); (d) Civil Resolution Tribunal receipts dated May 29, 2018 and July 25, 2018; (e) Canada Post tracking information dated April 3, 2019, RN 364 152 982 CA, addressed to Brooklyn Anderson, [omitted for publication] Road, Richmond, BC, V7C 3M2; (f) Canada Post receipts dated March 20, 2019, and August 21, 2019; (g) Notice of Civil Resolution Tribunal Claim filed March 12, 2019 (CEIS document 1); and (h) an Application for Deposit filed March 12, 2019, and returnable April 26, 2019 (CEIS document 7). Codi-Ann Huisman attached to her Certificate of Service (CEIS document 14) a copy of the Canada Post tracking record RN410953047CA indicating these documents were delivered to Brooklyn Anderson on February 12, 2020.

[34]      On March 12, 2020, Court Registrar G. Baylis granted NT Air’s Application for a Default Order (CEIS document 15) and pursuant to Small Claims Rule 1.1(41), ordered Brooklyn Anderson pay to NT Air directly the sum of $3,720, inclusive of costs (the “March 12, 2020 Default Order”).

[35]      Prince George Court Registry received from Brooklyn Anderson: (a) an Application to a Judge; (b) an Application to the Registrar; and (c) unsworn Affidavit to Cancel a Dismissal or a Default Order. Brooklyn Anderson sets out his contact information as: [omitted for publication] Road, Richmond, British Columbia, V7C 3M2, Telephone 778 [omitted for publication], on both his July 13, 2020 applications and supporting affidavit (CEIS documents 16 and 17).

[36]      On March 12, 2020, G. Baylis of the Prince George Provincial Court Registry sent to Brooklyn Anderson a memorandum with respect to his March 10, 2020 applications and affidavit on Small Claims File 1955484. G. Baylis advised Brooklyn Anderson his affidavit needed to be sworn before it could be filed and his applications could be heard on April 24, May 22, or June 19, at 9:30 a.m.

[37]      On May 14, 2020, Brooklyn Anderson swore his Affidavit to Cancel or Dismiss a Default Order before Notary Public Alena Harelik in Richmond, BC (CEIS document 17).

[38]      On July 13, 2020, Brooklyn Anderson filed his Application to a Judge (CEIS document 16) in the Prince George Provincial Court Registry returnable September 18, 2020, seeking an order setting aside Judge Mengering’s Deposit Order (April 16, 2019, as varied on August 29, 2019: CEIS documents 11 and 13). Also on July 13, 2020, Brooklyn Anderson filed his Affidavit (CEIS document 17) in support of his July 13, 2020 Application, stating he did not attend the April 26, 2019 hearing because:

[39]      Brooklyn Anderson says in his July 13, 2020 Affidavit (CEIS document 17), he first learned of the Dismissal or Default Order on August 30, 2019. He explains:

[40]      Small Claims Rule 17(2) states:

[41]      Small Claims Rule 16(7) states:

[42]      The court file has no confirmation Brooklyn Anderson served NT Air with a copy of his July 13, 2020 Application (CEIS document 16) and supporting affidavit (CEIS document 17). Small Claims Rules 16(9) and (10) state:

[43]      On September 18, 2020, Brooklyn Anderson’s July 13, 2020 Application (CEIS document 16) to set aside the Default Order came before Judge Keyes. Brooklyn Anderson appeared on his own behalf and no one appeared on behalf of NT Air. Judge Keyes ordered Brooklyn Anderson prepare an affidavit setting out what happened and attaching pertinent documents (CEIS document 18).

[44]      I note that in advance of the September 18, 2020 remote court appearance, Brooklyn Anderson provided the Court Registry written confirmation his telephone number was 778 [omitted for publication and his email address was [omitted for publication.

[45]      On November 17, 2020, Brooklyn Anderson filed with the Prince George Registry the following:

[46]      On November 20, 2020, Brooklyn Anderson’s July 13, 2020 Application (CEIS document 16) to set aside Judge Mengering’s Deposit Order came before Judge Brecknell for an initial appearance. Brooklyn Anderson appeared on his own behalf and no one appeared on behalf of NT Air. Brooklyn Anderson had not served NT Air with copies of the materials he filed with the court on November 17, 2020. Judge Brecknell ordered the court registry forward to NT Air, Brooklyn Anderson’s November 17, 2020 Affidavit (CEIS document 19) and the Civil Resolution Tribunal documents. Judge Brecknell also directed the Judicial Case Manager to schedule Brooklyn Anderson’s July 13, 2020 Application for a 1.5 hour hearing. Judge Brecknell gave both parties leave to attend at the hearing by telephone or video conferencing (see CEIS document 20).

[47]      On November 24, 2020, the court registry mailed to NT Air the documents set out above pursuant to Judge Brecknell’s November 2020 Order.

[48]      On November 27, 2020, the Prince George Court Registry issued a Notice of Trial (CEIS document 21) to the parties, directing them to attend court on February 22, 2021, with respect to Brooklyn Anderson’s July 13, 2020 Application to a Judge to set aside Judge Mengering’s Deposit Order. The Notice was sent on November 27, 2020 to NT Air at 100-4245 Hangar Road, Prince George, BC, V2N 4M6, and to Brooklyn Anderson by post at [omitted for publication] Road, Richmond BC, V7C 3M2, and by email at [omitted for publication].

[49]      On February 22, 2021, Brooklyn Anderson’s July 13, 2020 Application (CEIS document 16) came before Judge Mengering for trial. Judge Mengering noted Brooklyn Anderson’s application was made pursuant to Rule 1.1(41) of the Small Claims Rules. Ultimately, Judge Mengering adjourned the hearing to the Judicial Case Manager to reschedule the trial due to lack of court time (CEIS document 23).

[50]      On November 2, 2021, Brooklyn Anderson advised the court he had moved from [omitted for publication] Road, Richmond BC, V7C 3M2, to [omitted for publication] Street, Surrey, BC V4P 3M6 on August 1, 2020. He did not file with the court registry a formal Notice of Change of Address; however, the court was made aware of his new address. Moreover, Brooklyn Anderson said he signed up for mail forwarding for two years.

[51]      On March 2, 2020, the Prince George Court Registry issued the parties a Notice of Trial (CEIS document 22) for March 22, 2021, with respect to Brooklyn Anderson’s July 13, 2020 Application (CEIS document 16). The Prince George Court Registry mailed the Notice of Trial to NT Air at 100 – 4245 Hangar Road, Prince George, BC, V2N 4M6 and to Brooklyn Anderson at [omitted for publication] Street, Surrey, BC, V4P 3M6.

[52]      On March 22, 2021, Brooklyn Anderson’s July 13, 2020 Application to set aside Judge Mengering’s Deposit Order came before Regional Administrative Judge (“RAJ”) Galbraith. Douglas McCrae appeared on behalf of NT Air and Brooklyn Anderson appeared on his own behalf. RAJ Galbraith defined the issue before him as whether Brooklyn Anderson ought to pay the deposit into court given his financial circumstances. Judge Galbraith heard evidence and argument from Brooklyn Anderson as to his personal financial circumstances. Judge Galbraith was satisfied Brooklyn Anderson had the means to pay the deposit and should do so. Judge Galbraith ordered:

[53]      RAJ Galbraith did not specifically address the issue of whether Registrar Baylis’ March 12, 2021 Default Order ought to be set aside.

[54]      As to the filing of a Notice of Claim and Reply, I gather Judge Galbraith was unaware that Rule 1.1 provides for the continuation of the originating dispute as the claim (Rule 1.1(9), (16)), reply (Rule 1.1(18), (19)) and counterclaim (Rule 1.1(27)) and the response to counterclaim (Rule (29)). In other words, NT Air did not have to file a Notice of Claim under Rule 1, and Brooklyn Anderson did not have to file a Reply under Rule 3 (See Rule 1.1(19)) or Counterclaim under Rule 4 (Rule 1.1(28)). In any event, as Brooklyn Anderson never did pay the $3,726.10 into court as ordered, neither party was required to file any further pleadings.

[55]      NT Air had substantially complied with the service requirements set out in Rule 1.1(10) and (11) with the exception of including in the package of documents served on Brooklyn Anderson a blank Address for Service in Form 38. In the circumstances, I consider this a minor omission. I note that at the March 22, 2021 hearing, Brooklyn Anderson confirmed on the record his residential address for service was in fact [omitted for publication] Street, Surrey, BC, V4P 3M6.

[56]      June 30, 2021 came and went and Brooklyn Anderson did not pay all or any portion of the deposit ordered by Judge Mengering or Judge Galbraith.

[57]      On June 16, 2021, NT Air obtained a Summons to a Payment Hearing returnable September 3, 2021, at 9:30 a.m. in Prince George Law Courts (CEIS document 24), requiring Brooklyn Anderson to attend court and bring his relevant financial records. The amount owing as of June 16, 2020, inclusive of costs and court-ordered interest is $3,858.10.

[58]      On August 13, 2021, Eddis Petrossian, a professional process server, filed an Affidavit of Attempt of Service setting out his efforts to personally serve Brooklyn Anderson at [omitted for publication] Street, Surrey, BC (CEIS document 25) with the Summons to a Payment Hearing. In his affidavit, Eddis Petrossian stated he made many attempts to contact and sent electronic text messages to Brooklyn Anderson at 778 [omitted for publication], and was told the number was not Brooklyn Anderson’s. Eddis Petrossian attached as Exhibit “C” a copy of the text messages he received from 778 [omitted for publication].

[59]      On November 2, 2021, Brooklyn Anderson advised the court his cellular phone number was and always has been 778 [omitted for publication]. It was never 778 [the number Eddis Petrossian called]. I conclude Eddis Petrossian was not text messaging Brooklyn Anderson.

[60]      On August 25, 2021, NT Air filed an Application to the Registrar for leave to serve Brooklyn Anderson by substitutional service. NT Air filed Eddis Petrossian’s August 13, 2021 affidavit (CEIS document 25) in support of the application. On August 25, 2021, the Registrar ordered NT Air could serve Brooklyn Anderson substitutionally by affixing a copy of the Summons to a Payment Hearing to the front door of Brooklyn Anderson’s last known home address at [omitted for publication] Street, Surrey, BC, V4P 3M6, along with a copy of the substitutional service order (CEIS document 26).

[61]      On August 27, 2021, Eddis Petrossian, Professional Process Server, filed an Affidavit of Service (CEIS document 27) confirming that on August 26, 2021, he served Brooklyn Anderson substitutionally with: (a) the Summons to a Payment Hearing (CEIS document 24); and (b) NT Air’s Form 16 Application to the Registrar (CEIS document 26) with resulting order, by placing the documents in an envelope marked personal and confidential and attaching it to the front door of the defendant’s last known home address of [omitted for publication] Street, Surrey, BC.

[62]      On September 1, 2021, Eddis Petrossian filed a second Affidavit of Service (CEIS document 28) confirming that on August 26, 2021, he served Brooklyn Anderson at [omitted for publication], Surrey, BC, V4P 3M6, substitutionally by posting a copy of the Summons to a Payment Hearing and the August 25, 2021 Order on the front door of that residence (CEIS document 28).

[63]      NT Air’s Summons to a Payment Hearing served on Brooklyn Anderson came before Judge Malfair on September 3, 2021. Mr. Douglas McCrae appeared on behalf of NT Air and Brooklyn Anderson appeared in person. On September 3, 2021, Judge Malfair referred this matter to the Judicial Case Manager to fix a date for one hour for a default hearing.

[64]      At the September 3, 2021 hearing, Brooklyn Anderson told the court he had never received notice this matter was proceeding to court when Judge Mengering made the Deposit Order. Brooklyn Anderson asserted he never received any court documents for two years, despite having indicated in his July 13, 2020 Affidavit that had received the package form NT Air, but did not open it. He did acknowledge having received the Summons to a Payment Hearing that was affixed to his door.

[65]      On October 4, 2021, the Prince George Court Registry issued to the parties a Notice of Trial returnable November 2, 2021 (CEIS document 29). The notice was mailed to Brooklyn Anderson at [omitted for publication] Street, Surrey, BC, V4P 3M6, and by email: [omitted for publication], and to Northern Thunderbird at 100-4245 Hangar Road, Prince George, BC, V2N 4M6, and by email: [omitted for publication].

[66]      The default hearing came before me for trial on November 2, 2021. Both parties appeared by MS Teams. At the end of the hearing I reserved my decision. These are my reasons for judgment.

[67]      The dispute before me relates to events which occurred over five years ago, between September 21, 2016 and October 3, 2016. The parties have been embroiled in this conflict now for over four years. The dispute was before the CRT for adjudication between May 14, 2018 and January 10, 2019. It has been before the Provincial Court since March 12, 2019. In the past 34 months, this Court has repeatedly ordered Brooklyn Anderson to pay a deposit into court. The court also made one default order requiring Brooklyn Anderson to pay the monies claimed directly to NT Air. As of the date of these reasons for judgment, Brooklyn Anderson has failed or refused to comply with any of these orders.

[68]      Small Claims Rule 17 governs applications to set aside an order made in the absence of a party:

[69]      In his July 13, 2020 Application (CEIS document 16), Brooklyn Anderson applied to set aside Judge Mengering’s Deposit Order of April 26, 2019 requiring him to pay a $3,500 deposit. This order was subsequently varied on August 29, 2019, to require Brooklyn Anderson to pay the $3,500 into court by 4:00 p.m. on September 26, 2019. Brooklyn Anderson acknowledges he learned of this order on August 30, 2019 (CEIS document 17).

[70]      NT Air served Brooklyn Anderson with a copy of Judge Mengering’s April 26, 2019 and August 29, 2019 Deposit Orders together with its application for a default order by registered mail via Canada Post. Brooklyn Anderson signed for the package containing these documents on February 12, 2020 (CEIS document 14). Brooklyn Anderson did not pay any monies into court. The first time Brooklyn Anderson contacted the court in response to this matter was on March 10, 2020.

[71]      On March 12, 2020, Registrar G. Baylis granted NT Air’s application for a default order in the amount of $3,720. The next time Brooklyn Anderson contacted the court was on July 13, 2020, when he filed his application to set aside the default order. This was over 14 months after Judge Mengering made the April 26, 2019 Deposit Order.

[72]      Registrar G. Baylis’ March 12, 2020 Default Order required Brooklyn Anderson pay directly to NT Air the sum of $3,720. When Brooklyn Anderson’s July 13, 2020 Application came before the court on March 22, 2021, Judge Galbraith did not specifically order the March 12, 2020 Default Order be set aside. Instead, Judge Galbraith’s March 22, 2021 Order required Brooklyn Anderson to pay into court $3,726.10 by June 30, 2021. In essence, Judge Galbraith’s order countermanded Registrar Baylis’ March 12, 2020 Default Order by requiring Brooklyn Anderson to pay the monies into court rather than directly to NT Air and replaced Judge Mengering’s April 26, 2019 and August 29, 2019 Deposit Orders.

[73]      It is noteworthy that on March 22, 2021, RAJ Galbraith conducted an inquiry into Brooklyn Anderson’s finances and determined an order requiring Brooklyn Anderson pay into court a $3,726.10 deposit would not cause him undue hardship.

[74]      Brooklyn Anderson has not paid any monies into court as a deposit or to NT Air directly. On June 16, 2021, the Registrar issued a summons to Brooklyn Anderson to attend a Payment Hearing on September 3, 2021.

[75]      When this matter came before the court for a Payment Hearing on September 3, 2021, Judge Malfair noted there was no extant order requiring Brooklyn Anderson to pay monies directly to NT Air. Judge Malfair referred this matter to the Judicial Case Manager to schedule a default hearing in light of Brooklyn Anderson’s failure to pay into court the deposit Judge Galbraith ordered on March 22, 2021.

[76]      Brooklyn Anderson has not complied with RAJ Galbraith’s March 22, 2021 Order he pay a deposit into court, just as he had not complied with the Judge Mengering Deposit Order or Registrar Baylis’ default order. Whereas Brooklyn Anderson maintains he was not aware of and did not attend the April 26, 2019 court date, there is no doubt he had notice of and attended at the March 22, 2021 hearing, as well as the September 3, 2021 and the November 2, 2021 hearings.

[77]      The issue I have to determine is whether this Court ought to make a default order in favour of NT Air pursuant to Rule 1.1(41.2). In considering this issue, I have taken into account Small Claims Rule 17(2) and the jurisprudence applicable to applications to set aside a default order.

[78]      Rule 17(2) is a codification of the test for setting aside a default order espoused in Miracle Feeds v. D. & H. Enterprises Ltd., [1979] B.C.J. No. 1965 (Co. Ct.). The defendant must establish:

[79]      In BCI Bulkhaul Carriers Inc. v. Aujla Trucking Inc., 2015 BCCA 411, Madam Justice Garson for the BC Court of Appeal affirmed the test, but cautioned it was not immutable and ought not to be rigidly applied. With this in mind, I have considered the application of Rule 17(2) to the matter before me.

[80]      In his July 13, 2020 Application (CEIS document 16), Brooklyn Anderson says he is seeking an order:

[81]      In his affidavit sworn May 14, 2020 and filed July 13, 2020 (CEIS document 17), Brooklyn Anderson acknowledges he is the defendant in these proceedings and asks the court to cancel the April 26, 2019 Deposit Order. He says he did not attend court on April 26, 2019, because he was not aware of the trial date. He has variously claimed he never received notice of the trial date, or that if he did receive such notice by registered mail, he did not open the envelope and thus remained unaware of its contents. I accept as true Brooklyn Anderson’s representations in his July 13, 2020 Affidavit, that he was not aware of the April 26, 2019 court date because he did not open the package of materials he received from NT Air on April 1, 2019.

[82]      Brooklyn Anderson says in his July 13, 2020 Affidavit that he first learned of the April 26, 2019 Deposit Order on August 30, 2019. Still, he did not apply to cancel or set aside the April 26, 2019 Deposit Order until July 13, 2020, four months after Registrar G. Baylis made the March 12, 2020 Default Order in favour of NT Air. Brooklyn Anderson states in his July 13, 2020 Application to a Judge, the reason for his delay in filing his application was because he had “no time to receive the proper documents and knowledge due to occupation and care of my new born.”

[83]      In his July 13, 2020 Affidavit (CEIS document 17), Brooklyn Anderson states the facts that support his defence are:

[84]      Brooklyn Anderson has never applied to vary or set aside RAJ Galbraith’s March 22, 2021 Order requiring him to pay a deposit in the amount of $3,726.10 by June 30, 2021. Instead, he has argued at the September 3, 2021, and the November 2, 2021 court appearances that he could not afford the deposit. Although he suggested he could pay a lesser amount, Brooklyn Anderson never actually paid any amount into court.

[85]      In Karcher Estate v. Matson, 2018 BCPC 54 (CanLII), Judge Mrozinski canvassed the principles applicable to a motion to set aside a default order as espoused by Justice Hinds in Miracle Feeds v. D & H Enterprises Ltd. Judge Mrozinski cited Lou Guidi Construction Ltd. v. Fedick, [1994] B.C.J. No. 2409, wherein Judge Stansfield held that given the purpose of the Small Claims Act and the preponderance of self-represented litigants in this Court, the application judge should generally place greater weight on the merits of the defence than on the reasons for the default. In Davis v. Carlaw, [1995] B.C.J. No. 2807, Judge Stansfield clarified the court must still determine whether the defendant wilfully or deliberately, or recklessly failed to file a reply. He set out the following factors an applications’ judge may wish to consider:

[86]      Judge Mrozinski also referenced Rudrakumar & Pawar v. FIC Investments et al, 2011 BCPC 46 (Can LII), wherein Judge Phillips refused an application to set aside a default order granted when the defendants failed to attend a settlement conference on the grounds they had not established their failure to attend was not wilful or deliberate. In Rudrakumar, Judge Phillips found the defendants’ inaction determinative:

[87]      In Karcher Estate v. Matson, the applicant claimed she had not opened the registered letter containing the Notice of Claim. Judge Mrozinski comments:

[88]      Applying the factors Judge Stansfield identified in Davis v. Carlaw, Judge Mrozinski allowed the defendant’s application in Karcher Estate v. Matson. Although she described the applicant’s excuse for not opening the registered letter as feeble, Judge Mrozinski determined there was insufficient evidence on which the court could infer the applicant understood the need to file a reply.

[89]      The documents Brooklyn Anderson placed before the court indicate that on August 30, 2016, Doug Brown, Chief Pilot for NT Air, offered Brooklyn Anderson the position of First Officer with NT Air assigned to the Beech 1900 fleet based in Vancouver, BC. Brooklyn Anderson was to commence ground school on September 20, 2016, at YVR South Terminal. Brooklyn Anderson accepted the offer later that same day and advised NT Air he would tender his two weeks’ resignation to his Canwest Air the next day. Doug Brown responded that when he was back in the office, he would “start to sort out employment paperwork and assigning courses”. NT Air made no mention of any Training Bond in its initial employment offer. Brooklyn Anderson gave Canwest Air two weeks’ notice terminating his employment in Fort McMurray, Alberta, on September 17, 2016. On September 1, 2016, Doug Brown enrolled Brooklyn Anderson as a student in NT Air’s online training centre in a number of online courses, which Brooklyn Anderson successfully completed. It was not until September 20, 2016, after he had relocated to the Lower Mainland and attended ground school, that NT Air presented Brooklyn Anderson with the Training Bond Agreement. Brooklyn Anderson claims NT Air told him if he did not sign the Training Bond Agreement, it would rescind its offer of employment. Brooklyn Anderson said he was blindsided with the Training Bond Agreement. He felt “cornered” because he could not afford to be unemployed and so signed the Training Bond Agreement.

[90]      As to his counterclaim, Brooklyn Anderson says NT Air refused to pay him any salary during his on-line training period between September 6 –10, 2016, or during ground school and flight training from September 20 to October 2, 2016. Brooklyn Anderson says this too was not disclosed to him prior to his accepting NT Air’s offer of employment.

[91]      The practice of transferring the cost of training onto the pilot in the airline industry has often been litigated before the court: 171817 Canada Inc. v Foris, 1998 CanLII 6955 (NWT SC); Karroll v. Silver Star Mountain Resorts Ltd., 1988 CanLII 3094 (BC SC); West Wind Aviation Inc. v. Thompson, [2000] S.J. No. 715 (Sask. Q.B.); Alkan Air Ltd. v. Hatley, 2000 Y.J. No. 125; Chartright Air Inc. v. De Paoli, 2008 CanLII 47468 (ON SC); North Cariboo Flying Services Ltd v. Goddard, 2009 ABPC 219 (CanLII); Northern Thunderbird Air Inc. v. Van Haren, 2011 BCSC 837 (CanLII); Fireweed Helicopters Ltd. v. Varga, 2013 YKSM 9 (CanLII); Langford v. Carson Air Ltd., 2015 BCSC 1458; Wildcat Helicopters Inc. v. Ellis, 2016 BCSC 2214 (CanLII).

[92]      Before the CRT, NT Air relied on Langford v. Carson Air Ltd., 2015 BCSC 1458 (CanLII), wherein Chief Justice Hinkson considered the legality and enforceability of Training-Bond agreements in the aviation industry. In that case, Valerie Langford, a pilot and new employee, signed a two-year Training-Bond contract with Carson Air which estimated the cost of training to be $25,000. The Training Bond required Ms. Langford to repay the full amount owing to Carson Air if she resigned or her employment was terminated. Carson Air terminated Langford’s employment during her six-month probationary period. She sued Carson Air seeking damages for, among other things, wrongful dismissal, and Carson Air counter-claimed seeking payment of the $23,408.64 outstanding on the Training Bond.

[93]      Ms. Langford argued the court should not give effect to the Training Bond because she was jet-lagged and did not feel comfortable when she signed it. She claimed she signed the Training Bond under duress. Langford failed to establish the elements for the defence of duress and the BC Supreme Court allowed Carson Air’s counterclaim for the $23,408.64 balance owing under the Training Bond. The court took into consideration the Training Bond contained a term whereby Langford agreed she had been given the opportunity to seek legal advice about its terms. Ms. Langford did not attempt to contact or speak with anybody about the contract prior to signing it.

[94]      Langford v. Carson Air confirms that Training Bonds in the airline industry may be enforceable where an employee is properly terminated during a probationary period and where the Training Bond properly advises the employee that he or she can seek advice about its contents. In this respect, Langford v. Carson Air is distinguishable from the case before me.

[95]      Training-Bond contracts have withstood defences of unconscionability, illegality, and duress, but not lack of consideration. In Northern Thunderbird Air Inc. v. Van Haren, 2011 BCSC 837 (CanLII), Madam Justice Balance upheld on appeal the trial judge’s decision that NT Air’s Training Bond was not enforceable due in part to a lack of consideration. In that case, at the time he entered into the Training-Bond contract, the defendant pilot had already received all his training on the aircraft. Mr. Van Haren did not receive any further training and no new consideration passed from NT Air in exchange for Mr. Van Haren’s agreement. Hence, there was no consideration for Mr. Van Haren’s promise to repay the damages fixed by the Training-Bond contract.

[96]      In this case, after a review of the pleadings and case law, I cannot say whether or not a trial judge would find the Training-Bond agreement enforceable against Brooklyn Anderson in the circumstances in which it was presented and signed. In other words, I am satisfied Brooklyn Anderson has an arguable case on its merits.

[97]        Brooklyn Anderson also contests CRT’s ruling that the Employment Standards Act does not apply to this dispute. This aspect of his defence and counterclaim has no merit. The Employment Standards Act applies to all provincially-regulated employees other than those excluded by regulation. Airlines are federally-regulated companies; thus, the Canada Labour Code, R.S.C. 1985, c. L-2, applies.

[98]      Although I am not prepared to say Brooklyn Anderson’s case is devoid of merit, I am not satisfied a default order ought not to be made against him. In reaching this conclusion, I have taken into consideration the following:

[99]      In weighing the reasons leading to Brooklyn Anderson’s default in making a deposit into court against the merits of his defence to NT Air’s claim, I am mindful of Judge Stanfield’s decision in Davis v. Carlaw. I must consider whether Brooklyn Anderson’s act of default was reckless, wilful or deliberate. In Forgotten Treasures International Inc. v. Lloyd’s Underwriters, 2020 BCCA 341, the appellate court noted (at para. 19) that “It is settled law that wilful delay carries with it the connotation of blameworthy conduct.” A defendant’s failure to defend the claim may be “purposeful, deliberate or intentional” but, depending on the circumstance, may or may not constitute blameworthy conduct. 

[100]   In this case, Brooklyn Anderson’s initial default of Judge Mengering’s Deposit Order was the result of him wilfully or recklessly ignoring or neglecting the Provincial Court process he initiated with his Notice of Objection. Brooklyn Anderson admits in his July 13, 2020 Affidavit (CEIS document 17), he learned of Judge Mengering’s Deposit Order on August 30, 2019, yet did not file his Application to set aside that order until July 13, 2020. When Judge Galbraith afforded him another opportunity to pay the deposit before June 30, 2021, he did not do so in whole or in part. I conclude that Brooklyn Anderson’s default of RAJ Galbraith’s March 22, 2021 Order was wilful and not through inadvertence or oversight. Brooklyn Anderson was aware he was required to pay a deposit by August 30, 2019, at the latest. He has failed or refused to pay the court-ordered deposit, or any portion thereof, then or since. When he finally did appear before the court, Brooklyn Anderson repeatedly suggested to the presiding judge that he had no notice of these proceedings, notwithstanding his own affidavit evidence indicating otherwise. In the hearing of November 2, 2021, Brooklyn Anderson initially represented that when NT Air posted the court documents to him by registered mail in March 2019, he was in the midst of moving with his family from his former residence at [omitted for publication] Road, Richmond, BC, to his current residence at [omitted for publication] Street, Surrey, BC. Brooklyn Anderson later admitted he did not take possession of the Surrey residence until August 2020. Even then, he had a two-year mail forwarding service with Canada Post. Brooklyn Anderson also claimed he could not pay the deposit because of the impact of COVID-19, which did not manifest itself until the spring of 2020, a year after NT Air initiated the proceedings in Provincial Court.

[101]   In my view, Brooklyn Anderson has conducted himself in such a manner as to purposefully, deliberately and intentionally delay these proceedings. Given almost three years have passed since NT Air filed its Notice of Civil Resolution Claim with this Court, he has largely succeeded in that goal. Accordingly, I find Brooklyn Anderson’s conduct in failing to pay the deposit, or any portion thereof, constitutes blameworthy conduct.

[102]   In conclusion, I find and order: