IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Guraya v. Kaila, |
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2018 BCSC 1182 |
Date: 20180713
Docket: S191813
Registry: New Westminster
Between:
Navjot Singh Guraya, Shaminder Kaur Guraya, and
Jasbir Singh Guraya
Plaintiffs
And
Ravinder Singh Kaila, Parmjit Kaur Kaila, and
Balbir Kaur Kaila
Defendants
Before: The Honourable Madam Justice Shergill
Reasons for Judgment
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Counsel for Plaintiffs: |
E.M. Hatch M. Drouillard |
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Counsel for Defendants: |
S. Singh |
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Place and Date of Hearing: |
New Westminster, B.C. March 6, 2018 |
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Place and Date of Judgment: |
New Westminster, B.C. July 13, 2018 |
[1] This action for summary judgment relates to an agreement for the sale of land. The defendants challenge the validity of an assignment of the contract of purchase and sale, made by the plaintiff Navjot Singh Guraya (“Navjot Guraya”) to his wife, Shaminder Kaur Guraya (“Shaminder Guraya”) and his father, Jasbir Singh Guraya (“Jasbir Guraya”). In the event that I deem this matter appropriate for summary determination, the plaintiffs seek specific performance of the contract, or in the alternative, damages.
[2] The defendants say that this matter is not suitable for summary determination. In the event that I find it is, they allege that the purported assignment does not comply with the requirements of the Law and Equity Act, R.S.B.C. 1996, c. 253 (the “Act”), therefore rendering the assignment invalid and placing the plaintiff Navjot Guraya in breach of the contract and rendering the contract unenforceable.
[3] The first issue before me is whether this matter is suitable for a summary trial proceeding. In the event that I find that it is, the following further issues are raised:
1. Did Navjot Guraya have the right to assign the contract to Shaminder Guraya and Jasbir Guraya?
2. If so, is the assignment valid?
3. If the assignment is valid, are the defendants in breach of contract for failing to execute the land transfer documents?
4. If the defendants are in breach of contract, should the plaintiffs be granted specific performance?
5. If specific performance is not an appropriate remedy, then what damages, if any are payable to the plaintiffs?
6. Do the plaintiffs Jasbir Guraya and Shaminder Guraya, have standing in this action?
[4] The defendants are all family members. Ravinder Singh Kaila (“Ravinder Kaila”) and Parmjit Kaur Kaila (“Parmjit Kaila”) are husband and wife. Balbir Kaur Kaila (“Balbir Kaila”) is Ravinder Kaila’s mother. In May 2010, they became the registered owners of property located at 7989 125 Street in Surrey, British Columbia (the “Property”).
[5] The defendants have lived on the Property since 2013. The Property was listed for sale on April 4, 2017, for $1,069,000.00.
[6] On April 11, 2017, Navjot Guraya made a subject free offer for purchase of the Property (the “Offer”), for the amount of $1,060,000.00. The Offer contained a clause permitting an assignment without notice to the seller.
[7] Mr. Guraya’s Offer was accepted and the parties entered into a written Contract of Purchase and Sale (the “Contract”) on April 11, 2017. The completion date for the Contract was June 12, 2017. The Contract required Navjot Guraya to pay a $50,000 deposit within 24 hours of acceptance.
[8] In their affidavits filed in these proceedings, the plaintiffs say that on June 6, 2017, Navjot Guraya entered into an oral agreement with Shaminder Guraya and Jasbir Guraya assigning a one-third joint interest to each of them. On the same day, the real estate agent for the buyers delivered a Contract of Purchase and Sale Addendum (the “Addendum”) to the sellers informing them that Shaminder Guraya and Jasbir Guraya would be added to the contract of purchase and sale.
[9] The sellers refused to sign the addendum.
[10] On June 8, 2017, the plaintiffs’ conveyancing lawyer sent land title documents to the sellers for execution. The documents contained the names of all three plaintiffs as buyers. The sellers did not execute these documents.
[11] On June 12, 2017, the plaintiffs’ lawyer asked the defendants’ counsel for the executed land transfer documents, and advised him that the buyers were ready, willing, and able to complete the transaction. The defendants refused to complete the sale on the completion date, the executed documents were not forwarded, and the sale did not complete on June 12, 2017.
[12] The action was commenced in June 2017, and this Notice of Application was filed on November 27, 2017. The summary trial application was first set to be heard on December 15, 2017. On December 1, 2017, counsel for the defendants wrote to plaintiffs’ counsel requesting to cross-examine the plaintiffs on their affidavits and to schedule examinations for discovery. Plaintiffs’ counsel refused to consent on the grounds that the request was being made too close to the hearing date of the application. There was no further communication on this issue.
[13] On December 15, 2017, the parties attended for the application, but the matter was adjourned as no judge was available to hear it. It was reset for March 6, 2018.
[14] On February 26, 2018, the defendants appeared before Mr. Justice Ball, seeking to cross-examine the plaintiffs on their affidavits prior to the March 6, 2018 hearing date set for this summary trial application. The application for cross-examination was based on alleged inconsistencies in the affidavit material. Mr. Justice Ball dismissed the application.
[15] This summary trial proceeding was held on March 6, 2018. At the hearing, counsel for the plaintiffs sought an order for specific performance, and in the alternative, damages. However, plaintiffs’ counsel did not make any submissions with respect to the amount of damages claimed, and no evidence was tendered with respect to any damages alleged to have been sustained by the plaintiffs. Rather, in the event that I find in favour of the plaintiffs but deny them specific performance, plaintiffs’ counsel has asked that a proceeding with respect to assessment of damages be held at some later point in time.
[16] This summary trial application is brought under Rule 9-7 of the Supreme Court Civil Rules, B.C. Reg. 168/2009. Rule 9-7(15) sets out the applicable considerations to determine the appropriateness of granting judgment in a summary trial:
(15) On the hearing of a summary trial application, the court may
(a) grant judgment in favour of any party, either on an issue or generally, unless
(i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or
(ii) the court is of the opinion that it would be unjust to decide the issues on the application,
[17] Counsel for the plaintiffs submits that the central facts of this case are not in dispute, such that the Court can find the facts necessary to achieve a just outcome. Plaintiffs’ counsel also argues that litigation costs can be saved by proceeding summarily as the matter can be completed in one day rather than through a conventional trial which will take longer. Finally, the plaintiffs say that both parties will be prejudiced if there are delays due to the rising real estate market in the Metro Vancouver area.
[18] The defendants oppose the hearing of this matter on a summary trial basis. They assert that credibility is a central factor in this case such that factual disputes raised in the evidence cannot justly be resolved in a summary trial proceeding. They also wish to conduct examinations for discovery prior to the final determination of this matter.
[19] Rule 1-3 stipulates the object of the Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits. Rule 9-7 summary trial proceedings are one way to further the objects of the Rules, by providing a lower cost and more efficient alternative to resolving legal disputes than a conventional trial.
[20] In Hryniak v. Mauldin, 2014 SCC 7, the Court dealt with a summary judgment motion brought under similar summary trial provisions in Ontario. Karakatsanis J., writing for the Court, noted that access to justice considerations mandated that summary judgment proceedings be considered as a viable alternative to resolving legal disputes, and in so doing, “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims” (at para. 5).
[21] The Court in Hryniak went on to state that a trial is not required if a summary judgment motion can provide a process that allows the judge to make the necessary findings of fact in order to achieve a fair and just adjudication. Similar reasoning was employed by the Court in Gichuru v. Pallai, 2013 BCCA 60 at paras. 30-35. Where there are disputed issues of fact and law, the trial judge may proceed summarily provided that she is able to find the facts necessary to make a summary determination, and it would not be unjust to do so.
[22] The decision to proceed summarily is a discretionary one for the trial judge. As noted in the oft-cited case of Inspiration Management Ltd. v. McDermid St. Lawrence Ltd., [1989] B.C.J. No. 1003 (C.A.), considerations in determining suitability for summary trial are: the amount involved; the complexity of the matter; its urgency, and prejudice likely to arise by reason of delay; the cost of taking the case forward to a conventional trial in relation to the amount involved; the course of the proceedings; and any other matters which may affect this important question. Additional factors raised in subsequent authorities include: whether credibility is a critical factor in determination of the dispute and whether the application would result in “litigating in slices” (see Dahl et al. v. Royal Bank of Canada et al., 2005 BCSC 1263 at para. 12, aff’d 2006 BCCA 369).
[23] In considering the summary trial procedure available under Rule 9-7, the Court of Appeal in Shannon v. Dhaliwal, 2015 BCCA 402 at para. 7, cited with approval the decision in Kaspersky Lab, Inc. v. Bradshaw, 2010 BCSC 68 at para. 13, wherein Smith J. stated in reference to Rule 9-7 that:
[13] Although the Rule allows judgment “on an issue or generally”, the Court of Appeal has warned this court of the danger of “litigating in slices”: Bacchus Agents (1981) Ltd. v. Philippe Dandurand Wines Ltd., 2002 BCCA 138. …
[24] The court in Shannon stated further at para. 8:
[8] Of the rule allowing for the separate determination of issues at a summary trial, this Court in Bacchus said:
[6] This is a useful rule intended to shorten litigation, thereby lessening its cost to the parties and to the public treasury and reducing delays in the process, it being an axiom, at least since Bacon’s time, that justice delayed is justice denied.
[7] When, however, as in this case, the rule is invoked to try “an issue” rather than the whole case - what I have often characterized as “litigating in slices” - it may become a hindrance to the “just, speedy and inexpensive determination” of the dispute “on its merits”.
[25] After reviewing the evidence before me, and hearing the submissions of counsel, I find that this action is not suitable for summary disposition.
[26] Though counsel for the plaintiffs has asserted that adjudicating on a summary basis will decide the entire proceeding, this is not the case. Plaintiffs’ counsel has overlooked the fact that in addition to establishing liability, determining damages is a live issue. The plaintiffs have a significant evidentiary hurdle in establishing the uniqueness of the Property such that specific performance is considered an appropriate remedy. By asking that the issue of a damages assessment be determined at a different time than liability, the plaintiffs seek to litigate this case in slices. This is counter productive to the just, speedy, and inexpensive determination of the dispute on its merits.
[27] As I am unable to find the facts necessary in this case to achieve a fair and just adjudication on all of the issues, the plaintiffs’ application to have this matter determined summarily is dismissed.
[28] Costs of this application are awarded to the defendants in the cause.
“Shergill J.”