IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
LBEL Inc. v. Ten Veen, |
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2018 BCSC 1991 |
Date: 20181113
Docket: S171403
Registry: Vancouver
Between:
LBEL Inc.
Plaintiff
And
Wiecher Ten Veen
Defendant
Before: The Honourable Mr. Justice Crossin
Reasons for Judgment
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Counsel for the Plaintiff: |
G. Plottel |
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Counsel for the Defendant: |
R. Schubert |
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Place and Date of Trial/Hearing: |
Vancouver, B.C. January 15 and February 14, 2018 |
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Written Submissions: |
August 27, and |
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Place and Date of Judgment: |
Vancouver, B.C. November 13, 2018 |
[1] This is a summary trial brought by the plaintiff, LBEL Inc., who applies for judgment pursuant to Rule 9-7 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”) against the defendant, Wiecher Ten Veen, for a debt alleged to be owing by him to the plaintiff under a truck lease agreement.
[2] Counsel for the plaintiff submits that this matter is suitable for summary trial. Specifically, the plaintiff submits the defendant failed to make payments under the lease which gave rise to an event of default and the remedies as set out in the lease. The plaintiff says there are no conflicts in the evidence or issues of credibility that would prevent the court from making a ruling; and finally contends that the various defences raised by the defendant are barred by exclusion clauses contained in the lease. The plaintiff claims damages in the amount of $167,301.30.
[3] Counsel for the defendant submits that the matter is not suitable for summary trial as the court will be unable to find the necessary facts to resolve the dispute. In support of this position, counsel points to the conflicting affidavits of Mr. Ten Veen and Ms. Joanna Alford, litigation coordinator for the plaintiff, with respect to representations made by the agents of the plaintiff. The defendant also raised issues related to breach of contract.
[4] For the reasons set out below, I have concluded that this matter is unsuitable for summary trial because to resolve it on the evidence and materials before me would be unjust and contrary to the objectives of Rule 9-7.
[5] In light of this conclusion, I will refrain from expressing any particular view in relation to the various arguments and defences that have been raised before me and leave findings and conclusions to the trial judge.
[6] At the center of this action is a truck lease agreement concluded between the plaintiff and defendant.
[7] The plaintiff company is incorporated in Ontario, and is the successor in interest to another company, CIT Financial Ltd. (“CIT”), which is in the business of equipment financing and is the lessor.
[8] Mr. Ten Veen is, and has been, a truck driver, primarily a logging truck driver, in the interior of British Columbia for over 40 years. He resides in Kamloops, British Columbia and is the lessee.
[9] Sometime around late summer 2015, the evidence of Mr. Ten Veen is that he began to consider upgrading his truck due to ongoing mechanical problems and the need for more power to complete certain trucking jobs, such as hauling logs up steep grades. At the time, he was leasing a 2014 Mack CHU613 truck (the “2014 Mack”) through CIT. He had leased one other truck through CIT prior to leasing the 2014 Mack.
[10] Mr. Ten Veen met with Brian Burgoyne and Richard Mayer of Mack Sales and Services Nanaimo Ltd. (“Mack Sales”) to discuss trading in the 2014 Mack for a more powerful and reliable model that would meet his work requirements. After considering his needs, Mr. Burgoyne and Mr. Mayer recommended that Mr. Ten Veen upgrade to a new 2015 TD713 Rawhide Mack truck (the “2015 Mack”).
[11] Mr. Ten Veen stated in his affidavit that he accepted this recommendation and contacted CIT in early September 2015 to inquire about the possibility of discharging his lease on the 2014 Mack and entering into a new lease for the 2015 Mack. His contact point with CIT during these discussions was Jay Cassels.
[12] Mr. Cassels told Mr. Ten Veen that the interest rate to lease the 2015 Mack through CIT would be 5% plus prime per annum. Mr. Ten Veen expressed his surprise at this rate of interest as he had recently financed a trailer with Canadian Western Bank at a rate at least 2% lower than that proposed by CIT.
[13] In response to this concern, Mr. Ten Veen stated in his affidavit that Mr. Cassels made the following representations regarding the proposed lease arrangement (collectively, the “Representations”):
· If Mr. Ten Veen financed the 2015 Mack with a bank, such as Canadian Western Bank, and defaulted on an obligation under that agreement, the bank would pursue him for “everything”, including his house and other assets.
· However, if Mr. Ten Veen leased the 2015 Mack with CIT and defaulted on the lease agreement, they would “just basically want the Vehicle back”.
[14] Mr. Ten Veen stated in his affidavit that he understood from the Representations that if he defaulted under the proposed lease with CIT, he would only have to return the vehicle and would owe no further obligations to CIT. He also stated that he relied on the Representations in deciding to move forward with the proposed lease.
[15] Counsel for the plaintiff presented evidence that purported to dispute Mr. Ten Veen’s assertion that the Representations were in fact made by Mr. Cassels. I will come back to this evidence.
[16] On October 13, 2015, Mr. Ten Veen met Mr. Burgoyne and signed the Master Lease Agreement no. 800-0500865-001 (the “Lease”), which has a term of 60 months, as well as various related agreements, including:
(i) the Lease Schedule;
(ii) an Equipment Delivery and Acceptance Certificate;
(iii) a Trade-in Waiver Letter; and
(iv) a Pre-Authorized Debit Authorization.
[17] The Lease, the Lease Schedule and the Equipment Delivery and Acceptance Certificate are all printed on CIT letterhead.
[18] The Lease, although nearly impossible to read due to its density and the size of the print (at least the copy provided to me), contained a remedies clause that provides as follows:
12. Remedies
(a) Upon Default and any time thereafter Lessor may, in addition to any other right or remedy Lessor may have in law or in equity CIT shall have the rights and remedies set out below, all of which shall be enforced successively, concurrently and/or cumulatively:
(i) without further notice, take possession of the Equipment under any or all Schedules (“Repossession”) and for such purpose Lessee hereby grants Lessor the right to enter its premises at the then current Equipment location for the purpose of Repossession and waives claims for any damages, whether to property or otherwise, arising out of a Repossession and waives claims for ay damages, whether to property or otherwise, arising out of a Repossession and acknowledges that Lessor may retain all prior payments as partial compensation for the use of the Equipment, and sell or lease the Equipment upon such terms as Lessor determines with or without notice, at private or public sale, with or without having the Equipment at the sale (“Disposition”);
(ii) upon five (5) days prior written notice after the occurrence and continuance of Default, terminate this Agreement and any Schedule; or
(iii) demand, as a genuine pre-estimate of liquidated damages for loss of bargain and not as a penalty, the Loss Value of the Equipment.
[Emphasis added.] (“Remedies Clause”)
[19] Loss Value is defined in the Lease as the present value from time to time of any unpaid amounts due as “Rental”. Rental is defined as the amount of the rental, being the full-term cost of the Lease.
[20] Mr. Ten Veen stated in his affidavit that prior to his attendance on October 13, 2015, he had not reviewed the Lease or any of the related agreements. Mr. Ten Veen also stated that neither Mr. Burgoyne, who presented the agreements to him, nor any other representative on behalf of CIT, reviewed these documents with him prior to him signing the documents on October 13, 2015.
[21] Mr. Ten Veen took possession of the 2015 Mack the same day: October 13, 2015. It was essential for him to do so in order to drive the truck back to the mainland and fulfill his upcoming trucking jobs.
[22] Shortly after taking possession of the 2015 Mack, Mr. Ten Veen began experiencing various mechanical problems with it, including significant losses of power while hauling or driving uphill. He also began to drive with the presence of fumes and carbon monoxide in the cab of the truck.
[23] The losses of power often required Mr. Ten Veen to seek the assistance of other individuals, including other truck drivers, to tow or push the 2015 Mack. These continuing difficulties began to impact his reputation as a truck driver and cost him trucking jobs.
[24] These issues culminated in Mr. Ten Veen’s decision to stop making payments towards the Lease in mid January 2016. He immediately secured and stored the 2015 Mack, informed CIT that he considered the Lease to be at an end on January 19, 2016, and offered to return the truck.
[25] CIT claimed an event of default on January 19, 2016 and demanded payment of the full outstanding balance of the Lease, the Loss Value being $230,502.
[26] CIT subsequently repossessed the 2015 Mack in late January 2016 and sold it on August 11, 2016 for $77,864.47 with the original auction price being $90,000 before commission and other fees were deducted. I note that Exhibit “C” of Ms. Alford’s affidavit referred to a previous offer price of $115,000 that was made for the 2015 Mack before CIT decided to proceed with an auction of the truck.
[27] The amount claimed in damages, $167,301.30, represents the difference between the outstanding balance and the proceeds of sale, plus interest at 7.7%.
[28] The plaintiff submits that Mr. Ten Veen breached a term of the Lease by failing to make payments due and owing under the Lease. This failure on the part of Mr. Ten Veen qualified as an event of default, permitting the plaintiff to exercise their contractual rights to repossess and sell the 2015 Mack, and to demand payment of the Loss Value under para. 12(a)(i) and para. 12(a)(iii) of the Lease respectively.
[29] The defendant submits that Mr. Ten Veen elected to terminate the contract upon the plaintiff’s breach of implied term of quality or fitness under s. 18 of the Sale of Goods Act, R.S.B.C. 1996, c. 410 (“SGA”).
[30] Section 18 of the SGA outlines the implied conditions of quality or fitness that form part of a contract of sale or lease in British Columbia as follows:
Implied conditions as to quality or fitness
18 Subject to this and any other Act, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale or lease, except as follows:
(a) if the buyer or lessee, expressly or by implication, makes known to the seller or lessor the particular purpose for which the goods are required, so as to show that the buyer or lessee relies on the seller's or lessor's skill or judgment, and the goods are of a description that it is in the course of the seller's or lessor's business to supply, whether the seller or lessor is the manufacturer or not, there is an implied condition that the goods are reasonably fit for that purpose; except that in the case of a contract for the sale or lease of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose;
(b) if goods are bought by description from a seller or lessor who deals in goods of that description, whether the seller or lessor is the manufacturer or not, there is an implied condition that the goods are of merchantable quality; but if the buyer or lessee has examined the goods there is no implied condition as regards defects that the examination ought to have revealed;
(c) there is an implied condition that the goods will be durable for a reasonable period of time having regard to the use to which they would normally be put and to all the surrounding circumstances of the sale or lease;
[Emphasis added.]
[31] Counsel for the defendant also argues misrepresentation, made by agents of the plaintiff, as a defence that renders the agreement null and void, or permits the court to find the contract has “come to an end with no further obligations arising out of the same by either party”. In addition, the defendant claims for setoff or abatement resulting from the plaintiff’s failure to mitigate their loss by selling the 2015 Mack in a commercially unreasonable manner.
[32] The plaintiff says that the defendant is barred from raising such defences or claims after having acknowledged and signed the Equipment Delivery and Acceptance Certificate, which reflects similar language in the section of the Lease entitled “Exclusion of Equipment Warranties” (the “Exclusion Clauses”), the effect of which excludes the plaintiff’s liability. Both are reproduced, in part, below:
Equipment Delivery and Acceptance Certificate
The undersigned further acknowledge that the supplier(s) and the said Equipment was selected by the undersigned and are satisfied with its design, specifications, operating performance, quality, value, merchantability, exchange value and suitability of the Equipment for the purpose for which the undersigned intends to use it. Without prejudice to the rights, if any, that the undersigned may have against manufacturers, suppliers or others, the undersigned hereby releases and discharges CIT from any and all actions, causes of action, claims, demands, rights, defenses, setoffs, abatements and compensation now or hereafter arising out of and in relation to the Equipment, including, without limitation, any latent defect therein.
10. Exclusion of Equipment Warranties
Lessee acknowledges that Lessee alone will have selected the Equipment, that Lessor does not deal in the Equipment and that Lessor does not and will not make any representation or warranty whatsoever, express or implied, with respect to the Equipment or its adequacy for Lessee’s purpose or otherwise. Lessor will have no liability whatsoever (including, without limitation, liability for any indirect or consequential damages) arising from any latent or other defect in the Equipment including any fundamental breach, or other failure of performance, capacity or operation of the Equipment. If any Equipment is unsatisfactory for any reason, Lessee shall pay the Rental owing in respect of such Equipment without abatement, and shall seek recourse solely against the supplier or manufacturer of such Equipment. For such purpose, Lessor assigns to Lessee the benefit of all warranties and guarantees provided by manufacturers or suppliers of Equipment. …
[33] There is no dispute that the defendant failed to make payments under the Lease beginning in January 2016. The defendant has raised the issue of breach of implied term, misrepresentation and the enforceability of the Exclusion Clauses in their application response.
[34] It is the underdeveloped legal and evidentiary foundation related to these issues that persuades me this matter is unsuitable for summary trial.
[35] The defendant raised misrepresentation as a defence to the plaintiff’s claim of breach of contract and submitted that the effect of the misrepresentation nullified the contract, rendered it voidable or “at an end” with no further obligations from either party.
[36] Counsel for the plaintiff took the position that misrepresentation was a tort that should be the basis of a counterclaim rather than a defence. In my view however, there is authority for the proposition that misrepresentation can be raised as a defence: see Bruce MacDougall, Misrepresentation (Toronto: LexisNexis Canada, 2016) at 287-296; Redican v. Nesbit, [1924] 1 W.W.R. 305 at para. 76. This was not raised or pressed by the defendant.
[37] However, the type of misrepresentation alleged as a defence will raise further issues, such as the operation and effect of “entire agreement” clauses or the necessity of proving fraud; see Gigliotti v. Masev Communications Inc., 2004 BCSC 85 at paras. 97, 115-117; Laidar Holdings Ltd. v. Lindt & Sprungli (Canada) Inc., 2018 BCSC 66 at paras. 296-297.
[38] Both counsel briefly argued the “entire agreement” provision in the Lease before me. Although there is some evidence that representations were made and that an “entire agreement” provision is included in the Lease, the scope of the provision is unclear in light of Mr. Ten Veen’s undisputed affidavit evidence on this point.
[39] In her affidavit, Ms. Alford stated that her evidence “is not based on my personal knowledge, it is based on my review of certain of these business records”. She further provided inadmissible hearsay evidence that Mr. Cassels did not make the Representations.
[40] In my view the resolution of this issue should be addressed in the full light of a trial in the context of all of the related issues.
[41] The defendant also argued that CIT breached the implied term of quality or fitness under s. 18(a) and 18(c) of the SGA, which would entitle Mr. Ten Veen to terminate the Lease with “no further obligations arising out of the same from either party.”
[42] In light of my decision concerning the suitability of a summary trial, any conclusions concerning this issue would not be appropriate, but certainly it appears that it would be open to the trial judge to find that s. 18 of the SGA is engaged in this case. In that regard, I have evidence before me that: (1) Mr. Ten Veen told Messrs. Burgoyne, Mayer, and Cassels the purpose for his prospective upgrade from the 2014 Mack, including the need for a more powerful and durable truck for his various trucking jobs; (2) Mr. Ten Veen relied on their recommendation of the 2015 Mack; and (3) the 2015 Mack became functionally useless within three months of entering into the Lease.
[43] In the event the plaintiff is found to be in breach of an implied term under s. 18 of the SGA, a further question arises as to whether that breach is sufficient to dismiss the plaintiff’s claim where the term implied is a warranty rather than a condition.
[44] I note that counsel for the defendant characterized the breach, in their submissions, as a “breach of warranty” the magnitude of which “represents a fundamental breach of the Agreement such that the Defendant should be found to have owed no further obligations to the plaintiff upon his returning the Vehicle to the plaintiff.”
[45] It is more appropriate in my view to read the submission, in substance, as an assertion of a breach of condition and the subsequent election that arises. Normally, a breach of condition gives rise to an election by the innocent party to terminate the contract due to the repudiating party’s breach of an essential term which renders the contract essentially different from what was originally agreed: see Contura Building Corporation v. 0772551 Ltd., 2018 BCSC 466 at para. 97. This would theoretically include the breach of an implied condition under s. 18 of the SGA.
[46] However, s. 15(5) of the SGA, on its face, appears to preclude the characterization of the implied term as a condition; thereby foreclosing termination. Section 15(5) of the SGA provides:
If a lessee has accepted goods or part of them, the breach of a condition to be fulfilled by the lessor can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the lease as repudiated, unless there is a term of the lease, express or implied, to that effect.
[47] In my view, the wording of s. 15(5) leaves open the argument that the parties could have implied a term into the Lease to preclude the effect of the provision in the particular circumstances of this case. The implication of terms in the Lease, if any, would require additional evidence and submissions from counsel.
[48] Of course, the implied terms of s. 18 could be treated as warranties giving rise to damages rather than an election to terminate the Lease. If CIT were found to be in breach of implied warranties under s. 18 of the SGA and Mr. Ten Veen breached his obligation to pay under the Lease thereafter, then another question arises. What remedies are available to the plaintiff in this case if the plaintiff was the first of both parties to breach the contract. I do not have the benefit of submissions from counsel on this point.
[49] In summary, the effect of s. 15(5) of the SGA was not argued by either party and, although there is some evidence before the court, it is not sufficient to allow the court to make a final determination on the merits. The legal arguments made by counsel were not fully developed and, in my view, it is most appropriate for the parties to be given the opportunity to argue these issues at a conventional trial.
[50] Finally, counsel for the plaintiff argued that the Exclusion Clauses preclude the defendant from raising defences and claims, among other remedies.
[51] The enforceability of the Exclusion Clauses was only briefly referenced by counsel in their submissions before me. I came to the view this area required amplification and invited counsel to deliver written submissions on this point. I received those written submissions in due course.
[52] The leading case on the enforceability of exclusion clauses is Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4 (“Tercon”). In that case, Justice Binnie, in dissent, set out the following analytical approach at paras. 121-123, which was endorsed by the majority:
[121] The present state of the law, in summary, requires a series of enquiries to be addressed when a plaintiff seeks to escape the effect of an exclusion clause or other contractual terms to which it had previously agreed.
[122] The first issue, of course, is whether as a matter of interpretation the exclusion clause even applies to the circumstances established in evidence. This will depend on the Court’s assessment of the intention of the parties as expressed in the contract. If the exclusion clause does not apply, there is obviously no need to proceed further with this analysis. If the exclusion clause applies, the second issue is whether the exclusion clause was unconscionable at the time the contract was made, “as might arise from situations of unequal bargaining power between the parties” (Hunter, at p. 462). This second issue has to do with contract formation, not breach.
[123] If the exclusion clause is held to be valid and applicable, the Court may undertake a third enquiry, namely whether the Court should nevertheless refuse to enforce the valid exclusion clause because of the existence of an overriding public policy, proof of which lies on the party seeking to avoid enforcement of the clause, that outweighs the very strong public interest in the enforcement of contracts.
[Emphasis added.]
[53] Counsel for the plaintiff argued that the current action fell squarely within the parameters of the Exclusion Clauses and that CIT was entitled to rely on them. The plaintiff ultimately argued that the Exclusion Clauses were not unconscionable, relying on the test for unconscionability set out in Titus v. William F. Cooke Enterprises Inc., 2007 ONCA 573 at para. 38.
[54] Counsel for the defendant submitted that the Exclusion Clauses were non-specific, did not contemplate circumstances of liability beyond defects in the subject vehicle, and that any ambiguity in the Exclusion Clauses, with respect to liabilities arising from misrepresentation or failure to mitigate loss, should be interpreted against the plaintiff in accordance with the principle of contra proferentem. As such, the defendant submitted that the Exclusion Clauses failed the first stage of the test.
[55] The defendant further submitted that the Exclusion Clauses were unconscionable, relying on the test for unconscionability set out in Saliken v. Alpine Aerotech Limited Partnership, 2016 BCSC 832. In particular, counsel for the defendant submitted that there was “an overwhelming imbalance in bargaining power”, an absence of independent legal advice, and that the transaction was “grossly unfair” for the defendant to relinquish any claims against CIT.
[56] In that regard, I have some evidence before me that: (1) Mr. Ten Veen was not sent the documents for early perusal prior to signing; (2) Mr. Ten Veen did not read, and was not taken through, the Lease; (3) the Lease was a standard form contract with small print; (4) there was no opportunity to negotiate the terms of the Lease; (5) Mr. Ten Veen needed to pick up the 2015 Mack the same day and did not have the option of accessing another truck; and (6) Mr. Ten Veen did not have independent legal advice.
[57] The circumstances could give rise to a finding that the Exclusion Clauses do not apply to exclude the plaintiff’s liability. Depending on how this issue is resolved, along with whether there is a breach of contract, may inform the resolution of other issues. Those issues cannot be resolved without further submissions of counsel.
[58] Broad discretion is given to the court under Rule 9-7(15) and provides that, 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 …
[59] I do note arguments were initially made regarding the suitability of this case for summary trial, primarily on the basis that the affidavit of Ms. Alford and the affidavit of Mr. Ten Veen are in contradiction concerning the Representations. Ms. Alford stated that she was informed by Mr. Cassels that he did not make the Representations. Mr. Ten Veen deposed that the Representations were made.
[60] The leading case on suitability of matters for summary trial remains Inspiration Management v. McDermid St. Lawrence Ltd., [1989] 36 B.C.L.R. (2d) 202 (C.A.) (“Inspiration Management”). Based on that decision, and many others since, it is clear that the existence of conflicting affidavit evidence does not necessarily preclude the disposition of a matter by way of summary trial. The critical question is whether the facts necessary to decide the issues can be fairly established on the record (see Jamieson v. Whistler Mountain Resort Limited Partnership, 2017 BCSC 1001 at paras. 65–70).
[61] Frankly, I do not consider there to be a conflict as to the Representations made by Mr. Cassels to Mr. Ten Veen. As I have previously stated, the evidence of the plaintiff submitted on this point is, in my view, inadmissible. As such, the only admissible evidence on the Representations is that which is deposed in the affidavit of Mr. Ten Veen that remains, at this point, unchallenged by the plaintiff.
[62] However, as I have concluded, there are issues I have raised with respect to the misrepresentation and breach of contract defences that cannot be properly determined on the state of the record.
[63] In addition, the court is granted the discretion to refuse to give judgment on summary trial where it would be unjust to decide the issues on the application: see Inspiration Management at para. 47; Rule 9-7(15)(a)(ii). When considering whether to exercise this discretion, Chief Justice McEachern, as he then was, stated at para. 48:
In deciding whether it will be unjust to give judgment the chambers judge is entitled to consider, inter alia, the amount involved, the complexity of the matter, its urgency, any 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 arise for consideration on this important question.
[64] The objectives set out in Rule 1-3(1) guide the interpretation of the Rules, including Rule 9-7. This means the Rules must be interpreted, and operate, in light of Rule 1-3(1). Indeed, in Placer Development Ltd. v. Skyline Explorations Ltd. (1985), 67 B.C.L.R. 366 (“Placer Development”), the Court of Appeal stated at para. 70:
In summary, the Rule is a means whereby the general principles stated by Rule 1(5) [now Rule 1-3] may be attained. The Rule must, however, be applied only where it is possible to do justice between the parties in accordance with the requirements of the Rule itself and in accordance with the general principles which govern judges in their daily task of ensuring that justice is done.
[65] Supplementing my concerns about the state of the record in relation to the potential defences in this matter, is a lurking issue that relates to potential causes of action on behalf of the defendant.
[66] I am alive to the jurisprudence that articulates the proposition that counsel must come prepared to fully address and argue the merits of the application (see Inspiration Management at para. 58).
[67] I appreciate as well the defendant did not file a counterclaim for the purpose of this application.
[68] But I do note the direction of McEachern C.J.B.C. stated in Inspiration Management, “any other matters which arise for consideration on this important question” should be considered when exercising discretion under Rue 9-7(15) (para. 48).
[69] I also consider my conclusion concerning the unsuitability of this matter for summary trial to be consistent with other factors set out in Inspiration Management.
[70] First, I consider the amount involved in this application. Unlike in Salem v. Priority Building Services and Crest Realty Westside Ltd. v. W & W Parker Enterprises Ltd., the amount involved is over $160,000, which is not an insignificant amount, particularly to Mr. Ten Veen (see 2005 BCCA 617 at para. 32 and 2015 BCCA 447 at para. 29).
[71] Second, the matter is not straight forward in light of the outstanding issues and the materials before me. I have already requested additional written submissions from counsel. More issues have emerged or remain outstanding following receipt of those submissions. These require evidence as well as additional submissions.
[72] Finally, neither party raised urgency concerns or expressed prejudice if there was a delay in proceeding by way of a conventional trial.
[73] For these reasons, it is my view that it would be unjust for this court to decide this matter in the context of a summary trial.
[74] The plaintiff’s summary trial application is dismissed. In the circumstances of this case, each party will bear their own costs.
“The Honourable Mr. Justice Crossin”