Date of Original Decision: September 16, 2019
Date of Amended Decision: December 3, 2019

File: SC-2019-003528

Type: Small Claims

Civil Resolution Tribunal

Indexed as: 470025 BC Ltd. v. Marieiro, 2019 BCCRT 1089

Between:

470025 BC Ltd.

Applicant

And:

ALCINA MARIEIRO

Respondent

INTRODUCTION

1.      The applicant, 470025 BC Ltd., leased a commercial space to the respondent, Alcina Marieiro, through a written lease agreement. The applicant says that under the terms of the lease the respondent is required to pay its legal fees. It claims $2,902.61 for legal fees.

2.      The respondent says the applicant incurred the legal fees in relation to an ongoing small claims lawsuit in the British Columbia Provincial Court, and that she is not required to pay anything.

3.      The applicant is represented by an employee or principal and the respondent is self-represented.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

6.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      I note the respondent requested special accommodations from the tribunal for health issues. However, she provided clear and responsive submissions and evidence and therefore I find I can fairly decide this dispute based on written submissions.

8.      Under tribunal rule 9.3 (2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA:

a.    order a party to do or stop doing something:

b.    order a party to pay money:

c.    order any other terms or conditions the tribunal considers appropriate.

PRELIMINARY ISSUE

9.      It came to my attention after I made my original decision that through an inadvertent tribunal error, not all of the parties’ claims and submissions were before me when I issued the original decision.

10.   The respondent claimed reimbursement of dispute-related expenses, but through an inadvertent tribunal error her claim was not added to the parties’ claims at the decision stage when they exchanged evidence and submissions. Therefore, neither of the parties made submissions about the respondent’s claim for reimbursement of dispute-related expenses.

11.   I made my decision on September 16, 2019, without being aware of the respondent’s claim for reimbursement of dispute-related expenses or having the parties’ submissions on that issue.

12.   At common law, an administrative tribunal may reopen a proceeding to cure a jurisdictional defect, which is reflected in section 51(3) of the CRTA.

13.   The British Columbia Court of Appeal discussed the scope of the power to reopen a hearing to cure a jurisdictional defect in Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499. Among other things, it is a jurisdictional defect for an administrative tribunal to fail to provide the parties with procedural fairness.

14.   I find that in the circumstances of this case, it would be a breach of procedural fairness for me to decide this dispute without being aware of the respondent’s claim for reimbursement of dispute-related expenses or having the parties’ submissions about that issue. On November 1, 2019, I exercised my authority under section 51(3) of the CRTA to reopen this dispute and gave the parties an opportunity to submit evidence and make submissions about the respondent’s claim for dispute-related expenses. I have now received that evidence and those submissions. My amended reasons are set out below.

ISSUE

15.   The issue in this dispute is whether the respondent is required to reimburse the applicant’s legal fees under the terms of the commercial lease.

EVIDENCE AND ANALYSIS

16.   In a civil claim like this one, the applicant must prove its claim on a balance of probabilities. This means I must find it is more likely than not that the applicant’s position is correct.

17.   I have only addressed the parties’ evidence and submissions to the extent necessary to explain and give context to my decision. For the following reasons, I refuse to resolve the applicant’s claim.

18.   It is undisputed that the parties entered into a commercial lease agreement on November 18, 2015. The lease is not in evidence.

19.   It is undisputed that at some point in 2016 or 2017 the applicant started a legal action against the respondent in the British Columbia Provincial Court (court action) for nonpayment of rent under the lease. The pleadings from the court action are not in evidence.

20.   The evidence shows that the trial in the court action started on November 9, 2018 but did not finish that day. The trial was scheduled to continue on April 11, 2019, but on that date the applicant requested an adjournment, which the judge granted. The continuation of the trial is scheduled for November 6, 2019.

21.   In this dispute the applicant claims $2,902.61 for legal fees it incurred related to the respondent’s alleged breach of the lease. The applicant submitted an April 10, 2019 invoice from its legal counsel for $2,902.61 indicating it was for legal services provided between January 9, 2019 and April 9, 2019 in relation to the court action.

22.   The applicant says it incurred these legal fees after the court action, so it was unable to incorporate its claim for legal fees in the court action. However, I find the evidence shows otherwise.

23.   The court action is ongoing, and the invoice clearly states that the legal services provided were related to the court action. The respondent submitted the transcript of the court action proceedings on April 11, 2019 which shows the applicant asked the judge to amend its claim to recover legal fees. The judge said recovery of legal fees was outside the Provincial Court’s small claims jurisdiction, but there is no evidence before me that the judge made a formal order about it.

24.   Under section 11 (1) (a) (i) of the CRTA, the tribunal may refuse to resolve a claim or a dispute within its jurisdiction if it considers that it would be more appropriate for another legally binding process or dispute resolution process. The court action is ongoing, and the legal fees the applicant claims in this dispute clearly relate to that ongoing court action. While the judge in that action may have told the parties the Provincial Court does not have jurisdiction to award legal fees, the judge did not make a final order in that regard. Further, I find it would be inappropriate for me to address legal fees that have been considered, or will be considered, by the Provincial Court in a matter before it. Therefore, under section 11 (1) (a) (i) of the CRTA, I refuse to resolve this claim as I find it would be more appropriate for the applicant to address it in the ongoing court action.

25.   Under section 49 of the CRTA, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. The respondent claims $325.90 in dispute-related expenses for the cost of obtaining transcripts from the court action. She submitted receipts supporting the amount of her claim. Since I refused to resolve the applicant’s claim neither of the parties were successful. However, I relied on the court transcripts the respondent submitted in deciding to refuse to resolve the dispute. Therefore, I find the respondent’s claim is reasonable in the circumstances, and I find she is entitled to reimbursement of $325.90 in court transcript costs.

ORDERS

26.   Within 14 days of the date of this amended decision, I order the applicant to pay the respondent $325.90 as reimbursement of dispute-related expenses.

27.   I refuse to resolve the applicant’s claims this dispute under section 11 (1) (a) (i) of the CRTA.

28.   Under section 48 of the CRTA, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision.

29.   Under section 58.1 of the CRTA, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.