Date Issued: February 28, 2023

File: SC-2022-000588

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Glenn P. Robinson, M.D., Inc. v. Afshar, 2023 BCCRT 164

Between:

GLENN P. ROBINSON, M.D., INC. and THE COLEMAN CLINIC

Applicants

And:

ROWSHANAK AFSHAR

Respondent

REASONS FOR DECISION
Tribunal Member:	Megan Stewart

 

INTRODUCTION

1.      This dispute is about an alleged contract breach.

2.      The applicants, Glenn P. Robinson, M.D., Inc. and The Coleman Clinic, say the respondent, Rowshanak Afshar, breached the parties’ contract by failing to assume a family physician position with The Coleman Clinic contrary to a signed employment agreement. The applicants seek $2,503.86 in damages. They say this is for expenses they incurred in connection with sending out notice of retirement letters to Dr. Robinson’s patients.

3.      Dr. Afshar denies the parties entered into a valid contract. In the alternative, she says if the parties had a valid contract then she provided sufficient notice she would not be able to take up the position, thereby rescinding the parties’ agreement. In the further alternative, Dr. Afshar says any losses the applicants incurred were due to their own negligence.

4.      The applicants are represented by Dr. Glenn P. Robinson. The respondent is self-represented.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness.

6.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

7.      Section 42 of the CRTA says the CRT 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 CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

ISSUES

9.      The issues in this dispute are:

a.    Do the applicants have standing or capacity to bring their claim against Dr. Afshar?

b.    If so, did the parties have a valid contract and did Dr. Afshar breach that contract?

c.    Are the applicants entitled to the claimed $2,503.86 for expenses incurred in connection with sending out notice of Dr. Robinson’s retirement?

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, the applicants must prove their claims on a balance of probabilities (meaning “more likely than not). I have read all the parties’ submissions and evidence but refer only to the evidence and argument I find relevant to provide context for my decision.

11.   Dr. Afshar says the applicant Glenn P. Robinson, M.D., Inc. is not a proper party to this dispute, as it is not a party to the employment agreement which is between Dr. Afshar and The Coleman Clinic. The applicants disagree and say since Dr. Robinson was a practicing physician at The Coleman Clinic, Glenn P. Robinson, M.D., Inc. was a party to the employment agreement. They also say the reason Glenn P. Robinson, M.D., Inc. is pursuing this claim is because it (or Dr. Robinson) had to reimburse The Coleman Clinic for most of the claim-related expenses.

12.   First, I find the applicants have conflated Glenn P. Robinson, M.D., Inc. (the corporation) and Dr. Robinson (the person). These are separate legal entities and of the two, only Glenn P. Robinson, M.D., Inc. is named in this dispute. Second, I agree with Dr. Afshar that Glenn P. Robinson, M.D., Inc. does not have standing (the legal right) to bring a claim about an agreement it was not party to. So, I dismiss the applicant Glenn P. Robinson, M.D., Inc.’s claim.

13.   I turn to the second applicant, The Coleman Clinic. As named, I find “The Coleman Clinic” is legally a non-entity and so it lacks capacity to bring a claim. Capacity concerns the right to initiate or defend legal proceedings, and typically depends on the personal characteristics of a party (see Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 BCCA 193 (CanLII)). The Coleman Clinic is not a corporation or a registered partnership, nor is it an individual.

14.   Through CRT staff, I asked the parties for submissions on The Coleman Clinic’s legal ability to bring this dispute against Dr. Afshar. Dr. Robinson says The Coleman Clinic is an association of sole medical practitioners, of which he was a member. He also says he and his physician colleagues operated under the name The Coleman Clinic. An individual doing business as (dba) a different name can start a claim in the individual’s name and add the dba (for example, John Doe dba Doe Auto, rather than just Doe Auto).  

15.   However, an unincorporated association is not a legal entity, and therefore has no right to bring a civil claim unless there is legislation providing otherwise (see Kwicksutaineuk at paragraph 65). I am not aware of any applicable legislation that provides otherwise in this dispute. Typically, an unincorporated association’s members must file claims in their personal capacity. Here, Dr. Robinson has not filed the claim in his own name as an individual, nor have any of the association’s other members filed the claim in their names.

16.   If, on the other hand, the physicians are doing business as The Coleman Clinic, then the applicants should have made that clear in the Dispute Notice by individually naming the physicians with a dba (The Coleman Clinic) at the end. In the circumstances, it is not obvious The Coleman Clinic is either an unincorporated association, without capacity to bring a claim, or the individual physicians doing business as The Coleman Clinic, who would have capacity.

17.   So, I find The Coleman Clinic has not demonstrated it is more likely than not The Coleman Clinic is a dba rather than an unincorporated association. I conclude The Coleman Clinic lacks capacity to bring this claim against Dr. Afshar.

18.   I considered the relationship, if any, between The Coleman Clinic and “Coleman Clinic”, a registered sole proprietorship with the proprietor Kenneth Holdings Ltd. The applicants said Kenneth Holdings Ltd. ceased to exist as of February 17, 2021. In addition, they explained it was incorporated solely to own the real property on which The Coleman Clinic is located, which it later sold to a third party. So, I find The Coleman Clinic and Coleman Clinic are two distinct entities.

19.   Given my conclusion that The Coleman Clinic lacks capacity to bring this claim for damages against Dr. Afshar, I also dismiss its claim.

20.   Under section 49 of the CRTA and CRT rules, a successful party is generally entitled to reimbursement of their CRT fees and reasonable dispute-related expenses. As the applicants were unsuccessful, I dismiss their claims for reimbursement of CRT fees. Dr. Afshar did not pay fees and neither party claimed dispute-related expenses.

ORDER

21.   I dismiss the applicants’ claims and this dispute.