2008 BCSC 571 Thompson River Veneer Products LP v. Hall

Before: Master Hyslop
in Chambers

Reasons for Judgment

Counsel for the Plaintiff	S.D. Dley, Q.C.
Counsel for the Defendants	J.M. Drayton
Date and Place of Trial/Hearing:	April 28, 2008
	Kamloops, B.C.

[1] The defendants apply for an order that this proceeding be transferred to the Provincial Court, pursuant to s. 15 of the Supreme Court Act, R.S.B.C. 1996, c. 443 which provides that:

15. A judge or master may transfer proceedings to the Provincial Court of British Columbia if

(a) the proceedings are within the jurisdiction of the Provincial Court under the Small Claims Act,

(b) a party to the proceedings applies to the judge or master or all parties to the proceedings agree to the transfer, and

[2] The plaintiff opposes the application.

BACKGROUND

[3] The important facts do not appear to be in dispute. The plaintiff operates a veneer processing plant which manufactures plywood for sale. The defendants have provided trucking services to the plaintiff from time to time. Outstanding and due to the defendants was $4,779.00 for past trucking services. Despite this amount owing the defendants continued to provide trucking services to the plaintiff for which those services were paid.

[4] On October 10, 2007, the plaintiff asked the defendant to haul 41 units (lifts) of plywood to a customer in Calgary, Alberta. The defendant Hall agreed to pick-up the load on October 12, 2007 and deliver it on October 15, 2007. After picking up the load of plywood, Mr. Hall called the plaintiff advising that he would hold the load until his overdue account was paid. This resulted in this proceeding being commenced.

[5] The plaintiff shipped another load of plywood to the customer located in Calgary. The delivery of the load was one day late.

[6] The plaintiff in its statement of claim seeks:

· The return of the 41 lifts of plywood;

· An injunction preventing the defendants from selling or disposing of the plywood;

· Alternatively payment for the value of the plywood;

· Damages for wrongful conversion and or wrongful detention;

· Punitive damages;

· Special costs.

[7] A defence and counterclaim was filed by the defendants. The defendants counterclaimed for the amount owing to them. In a reply the plaintiff acknowledged that the account was owed, but denies that any debt has been extinguished by the damages sustained by the plaintiff.

[8] On October 22, 2007, counsel for both the plaintiff and defendant appeared before Mr. Justice McKinnon on short leave. By consent, Mr. Justice McKinnon ordered that the 41 lifts of plywood would be returned no later than October 25, 2007; the balance of the relief was adjourned generally. The plywood was returned pursuant to the order, within thirteen days of its taking.

[9] The defendant argues that with the return of the plywood, this proceeding should be litigated in Small Claims Court as damages and punitive damages will not exceed the amount of the jurisdiction of the court. Counsel agree that the Small Claims Court can award punitive damages.

[10] The plaintiff argues that the award will exceed the jurisdiction of the Small Claims Court as the defendant Hall not only was high handed in taking the load but threatened to burn down the plaintiff’s plant, the latter of which is denied by the defendant. Counsel for the plaintiff argues that the act of the defendants was premeditated and that commercial business cannot be conducted in this fashion.

[11] I inquired of counsel that if this proceeding was transferred to Small Claims Court whether the Supreme Court could reserve to itself the issue of Supreme Court costs. I asked for and received written submissions.

THE LAW

[12] The law in transferring cases from Supreme Court to Provincial is summarized in Squamish Ford Sales Ltd. v. Jocelyn Doll and Randall W. Tomczuk, Vancouver Registry C964909 at ¶16 and 17:

[16] Reference has been made to the decision of Master Chamberlist in Manley v. Burns Lake Community Development Assn. [1996] B.C.J. No. 2236, Smithers Registry No. 8953, where the learned master considers some factors which may be applicable on such applications:

[10] In Hiebert v. Brown, [1995] B.C.J. No. 2015, in dealing with a similar application, I stated that the court in exercising its powers under s. 13.1, must determine whether in all the circumstances it would be just and convenient to order a transfer to Provincial Court after balancing the prejudices to the respective parties.

[11] Examples of considerations the court has taken into account in balancing these prejudices include, but are not limited to, the following considerations:

(a) lateness in making the application for transfer;

(b) availability of Supreme Court pre-trial procedures;

(d) potential quantum of damages.

[17] The plaintiff refers to the decision of Master Horn in Martin v. Tom [1995] B.C.J. No. 2342, Nanaimo Registry No. 08247, at p. 2:

I turn for assistance to the decision of Master Powers in Long v. Jackson 1994 CanLII 2106 (BC S.C.), (1994) 88 B.C.L.R. (2d) 46. In that judgment he set forth a number of matters which required consideration in relation to an application to transfer to the Provincial Court. I will not repeat all those considerations. The considerations which most affect me are these:

1) There will likely be no delay in this matter coming for trial if the action is transferred to the Provincial Court.

2) While this is a proper case for the consideration of a jury, being an issue of quantum of damages only, a jury trial would be far more expensive and lengthy.

3) Discoveries have been completed and so neither party will be prejudiced by the paucity of discovery procedures in the Provincial Court.

4) The application is brought well before the trial date.

[13] The question of costs can survive and be reserved until the proceedings in Provincial Court are disposed of either by a judgment or settlement (Ezer v Syrjala, 2005 BCSC 1636).

DISCUSSION

[14] I find that there is no prejudice to either party except the matter of the plaintiff’s claim for special costs which I deal with later in these reasons. The facts are not seriously in dispute making pre-trial procedures less important. The order of Mr. Justice McKinnon and the compliance of that order by the defendant reduced the quantum of damages substantially, no longer requiring this case to continue in Supreme Court. The court will be required to assess the damages, if any, the plaintiff suffered as result of the defendants holding the plywood, the late delivery of a substitute load to the plaintiff’s customer in Calgary and punitive damages. The amount that could be awarded is not likely to exceed the jurisdiction of the Provincial Court. This case is not complex. The costs to the litigants in this case are likely to be less expensive if this proceeding is transferred to Provincial Court.

[15] There is no trial date fixed, thus there is no evidence that there would be delay in obtaining a trial date if this proceeding is transferred to Provincial Court.

[16] The plaintiff’s concern is that costs incurred in this court can be sought and awarded as special costs. In my opinion it can. Rule 57(1) of the Rules of Court states:

57(1) Where costs are payable to a party under these rules or by order

(a) by another party,

(b) out of a fund of other parties, or

they shall be assessed as party and party costs under Appendix B, unless the court orders that they be assessed as special costs.

[17] The defendant’s application is allowed, this proceeding is transferred to Provincial Court, with the question of costs in the Supreme Court reserved until the proceedings in the Provincial Court are resolved by settlement or judgment.

[18] The costs of this application are in the cause.

MASTER HYSLOP

Citation:	*Thompson River Veneer Products LP v. Larry James Hall,*
	2008 BCSC 571