2005 BCCA 169 Poirier v. Community Futures Development Corporation

Before:	The Honourable Mr. Justice Lambert
	The Honourable Madam Justice Newbury
	The Honourable Mr. Justice Smith

Oral Reasons for Judgment

S.D. Stevens	Counsel for the Appellant
K.D. Stevan	Appearing as Agent for D.J. Nowosad, Counsel for the Respondent
Place and Date:	Victoria, British Columbia
March 4, 2005

[1] LAMBERT J.A.: This appeal arises in an action brought under three separate heads of claim by Mr. Poirier against a corporation established by statute and without shareholders which has public obligations in relation to financial assistance to the small businesses in the area in which it operates. Mr. Poirier is in the sawmilling business at the north end of Vancouver Island in that same area.

[2] The three claims are, first, a claim for intentional interference with economic relations. The second is a claim for what I will call "malicious prosecution". And, the third, a claim for improper seizure of a piece of equipment in which Mr. Poirier claims to have an interest. The claims were set out in the statement of claim which caused some puzzlement on the part of the defendant and its solicitors and they asked for particulars and particulars were given, though it seems only in relation to para. 5 of the statement of claim.

[3] I think it would be helpful if I set out that paragraph at this point.

5. From the time of incorporation in 1995, the Defendant has intentionally interfered with the economic interests of the Plaintiff and contrary to the Defendant's own policies and mandate and contrary to the best interests of the community that it services, particulars of which are as follows:

(a) by loaning funds to businesses that would be in direct competition with the Plaintiff's business, without adequately determining whether the market economy would be able to sustain this business and the Plaintiff's business, thereby putting the Plaintiff's business at risk for continuing to be a viable business;

(b) by failing to ensure the businesses, which the Defendant provided funds to, would be self sustaining businesses, once the loan funds had been used up by the businesses.

(c) by approving loans, to competing business to the Plaintiff, based on a prejudice in favour of the loan applicant and/or a prejudice against the Plaintiff;

(d) by approving loans for business that were in excess of the Defendant's own guideline loan amounts for these businesses.

[4] I think it probably would be helpful in understanding the other two causes of action if the cause of action is set out as pleaded.

[5] What I have called the improper seizure of the piece of equipment, is set out in paras. 7 and 8 of the statement of claim:

7. That on or about November 1999, the Plaintiff purchased an interest in a piece of equipment owned by Daniel Gauthier of TID Gauthier Inc. The equipment was a TID Gauthier Telecarrier TI 3000G Serial No. 9703117TB and Steel Mast, 10 meter long ("the Equipment") for the sum of $12,814.00.

8. The Defendant without legal cause or justification, instructed a Bailiff to seize and sell the equipment thereby depriving the Plaintiff of his interest in the equipment, causing the Plaintiff an economic loss of $12,814.00.

[6] And finally, the claim for what I call "malicious prosecution" but which is pleaded as a kind of false accusation, making a false accusation, is set out in these paragraphs:

9. Between May 01, 2000 and June 30, 2000, the Defendant falsely accused the Plaintiff of corruptly offering Steven Evans, an agent of the Defendant a reward or advantage or benefit in order to obtain a loan from the Defendant for the Plaintiff's Company, Laurier Cedar Products Limited.

10. The Plaintiff was forced to defend himself against the false accusations, in the Provincial Court of British Columbia. At the trial of the matter the Provincial Court dismissed the charge against the Plaintiff. The false accusations have caused damages to the Plaintiff's person and economic damages to his business.

11. The false accusations of the Defendant have caused the Plaintiff emotional trauma and stress. The Plaintiff continues to suffer from post traumatic stress syndrome, as a result of the false accusations of the Defendant.

12. The false accusations were made, by the Defendant to harm the Plaintiff’s reputation and the economic interests of the Plaintiff's business or alternatively, the false accusations were made by the Defendant with reckless disregard for the reputation of the Plaintiff and the economic interests of the Plaintiff.

13. The false accusations of the Defendant have caused loss and damage to the Plaintiff's personal and business reputation and have caused economic loss and damages to the Plaintiff and his business.

[7] The application was made by the defendant under Rule 19(24) of the Supreme Court Rules:

(24) At any stage of a proceeding the court may order to be struck out or amended the whole or any part of an endorsement, pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence as the case may be,

(b) it is unnecessary, scandalous frivolous or vexatious,

(d) it is otherwise an abuse of the process of the court,

and the court may grant judgment or order the proceedings to be stayed or dismissed and may order the costs of the application to be paid as special costs.

[8] The principles that ought to be applied in relation to an application under Rule 19(24), particularly under Rule 19(24)(a), upon which this application principally rests, are set out in a number of decisions of the Supreme Court of Canada and perhaps the most useful thing is to quote from the judgment of Madam Justice Wilson, speaking on behalf of the unanimous Supreme Court of Canada, in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, where Madam Justice Wilson, in addressing Rule 19(24)(a), said this at pp. 21-22:

"Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C.O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, it is 'plain and obvious' that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be 'driven from the judgment seat'. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a)."

[9] The only thing that I would like to add to that summary of the principles to be applied in considering the rule is set out in a judgment of Mr. Justice Romilly in Wayneroy Holdings Ltd. v. Sideen, [2002] B.C.J. No. 2472 (B.C.S.C.); 2002 BCSC 1510, where Mr. Justice Romilly quoted from his judgment in Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, [1999] B.C.J. No. 2160 (B.C.S.C.) at para. 34:

... In other words, as long as the pleadings disclose a triable issue, either as it exists, or as it may be amended, then the issue should go to trial. The mere fact that the case is weak or not likely to succeed is no ground for striking it out under the provisions of Rule 19(24): ...

Mr. Justice Romilly relies on Minnes v. Minnes (1962), 39 W.W.R. 112, a decision of this Court.

[10] Of course the amendments that might be made to the pleadings to shore up what may be an imperfect statement of claim must be limited in some way, but if the defects are only technical defects or slight imperfections in the statement of the cause of action, then the court, in applying the rule, must anticipate the possibility that amendments would be made before the trial, so that the issues could properly be brought before the court.

[11] This matter came before a Supreme Court judge who considered that the defendant was comparable to a chartered bank and that it was being alleged that in the ordinary course of business it was preferring one customer to another. The judge considered that in those circumstances the alleged facts would not bring the claim within the boundaries of the action for intentionally inducing harm to economic relations.

[12] The Chambers judge also relied on affidavit evidence disclosing the factual matters in relation to the pleadings but not simply explaining the pleadings but rather going into the evidence on the variations which were sought to be raised by the pleadings as issues for trial.

[13] In addition, the Chambers judge was confronted by a motion to amend the statement of claim and a motion to add several named defendants which, had it been granted, would have carried with it the deletion of the single named defendant corporation. He decided that the limitation period had expired for the action for malicious prosecution and that that was a significant factor in the determination of whether the joining of the defendants, the personal defendants, should be permitted. That was the principal area on which he concentrated after what may have been a very confusing argument over a multiplicity of issues at the Chambers hearing.

[14] In my opinion, in applying the principles that ought to be applied to a motion under Rule 19(24)(a) and confining the case closely to the pleadings as I have set them out, and having regard also to the nature of the cause of action for unlawful interference with economic relations, particularly to the statement by Lord Denning in the case of Torquay Hotel Co. Ltd. v. Cousins, [1969] 2 Ch.D. 106 (N.C.A.) at p. 39, where Lord Denning said:

I have always understood that if one person deliberately interferes with a trade or business of another, and does so by unlawful means, that is, by an act which he is not at liberty to commit, then he is acting unlawfully, even though he does not procure or induce any actual breach of contract.

that the pleadings set out a known cause of action under all three heads of claim. It would be improper on this application to apply any test about the likelihood of proof or the weight that might be given to those causes of action, though it is important to understand the nature of the causes of action. There may be issues about what is meant by "unlawful means" in the tort of intentionally inducing interference with economic relations and whether the heads pleaded at para. 5 of the statement of claim come within the tort but that is not an issue which we should be trying to resolve without the benefit of any evidence on the hearing of an appeal from the decision on a motion such as this.

[15] In all these circumstances I would allow the appeal and I would restore the original unamended statement of claim.

[16] There was no appeal brought from the Chambers judge's decision that the defendant should not be added, and that matter must be regarded as having been finally disposed of. I would decide this appeal in that way.

[17] NEWBURY J.A.: I agree.

[18] SMITH J.A.: I agree.

[19] LAMBERT J.A.: So ordered.

[20] We are all agreed that costs should be in the cause.

“The Honourable Mr. Justice Lambert”

Citation:	*Poirier v. Community Futures Development Corporation,*
	2005 BCCA 169