1. Case Name:
City Water International Inc. v. Great Canadian Oil Change
Ltd.
Between
City Water International Inc., Claimant, and
The Great Canadian Oil Change Ltd. et al., Defendant
[2011] B.C.J. No. 1730
2011 BCPC 236
File No. 67679
Registry: Surrey
British Columbia Provincial Court
P.D. Gulbransen Prov. Ct. J.
April 1, 2011.
(9 paras.)
Counsel:
No counsel mentioned.
[Editor's note: A corrigendum was released by the Court on September 14 2011; the corrections have been made to the text and the Corrigendum is
appended to this document.]
RULING ON APPLICATION
1 P.D. GULBRANSEN PROV. CT. J.:-- A Judge dismissed the claimant's action because no one
appeared on its behalf at the settlement conference on March 14, 2011. The Judge did not know that
the claimant, whose office is located in Ontario, had applied to appear at the conference by
telephone. The claimant had faxed a document to the Registry on the morning of March 14, making
a request that it be permitted to participate in the conference by telephone. That document had not
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2. been put in the file by the time the settlement conference was to start.
2 The manager of the claimant's legal department has sent a letter, outlining what happened and
requesting that the order of dismissal be set aside.
3 In most circumstances where the claimant's case has been dismissed for failing to attend a
settlement conference, the claimant must appear before a Judge to have the dismissal set aside. The
applicant must also file an affidavit explaining the non-attendance and serve a copy of that
document on the defendant. The court must notify the claimant and the defendant of the date set for
the application where both parties may argue the merits of that application.
4 To make the applicant or the defendant in this case go through such a process would be quite
unfair. The claimant actually made the request to appear by telephone. There is no doubt that the
request would have been granted. The reason for the claimant not appearing at the conference was
that there was a mistake made by the court registry. (The fax was sent on a Monday. It was amongst
a large number of Informations which had been faxed to the Registry. These Informations are
related to persons who had been arrested over the weekend. It is likely that the claimant's faxed
request would have been put in the file if it had been sent a few days earlier.)
5 S. 2(1) of the Small Claims Act declares that its purpose is to allow litigants to have their cases
resolved "... in a just, speedy, inexpensive and simple manner". Section 2(2) of the Act permits the
court to "... make any order or give any direction it thinks necessary to achieve the purpose of this
Act or the rules".
6 There is no question that the claimant would have been granted permission to participate in the
settlement conference by telephone. There is no question that the claimant acted in good faith and
intended to participate in the conference. In these circumstances, any judge who heard a formal
application to set aside the dismissal would grant the application.
7 To make the claimant go through the formal application process and to make the defendant
become involved as well, would make the process in this case slower, more complex and more
expensive.
8 Under the broad discretion granted to the court under section 2(2) of the Small Claims Act, I
direct that the claimant's application may proceed without the formal proceedings that would
normally apply. I direct that the order dismissing the claim be set aside and the claim be reinstated.
9 I further order that another settlement conference be set and that the claimant may participate
by telephone at a phone number to be supplied by the claimant.
P.D. GULBRANSEN PROV. CT. J.
* * * * *
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3. CORRIGENDUM
Released: September 14, 2011
[1] This corrigendum to my Ruling on Application issued on April 1, 2011, is to clarify and correct
paragraphs [1] and [6] of those reasons.
[2] The last sentence in paragraph [1] should read:
That document had not been put in the file by the time the settlement conference
was to start.
[3] Paragraph [6] should read:
There is no question that the claimant would have been granted permission to
participate in the settlement conference by telephone. There is no question that
the claimant acted in good faith and intended to participate in the conference. In
these circumstances, any judge who heard a formal application to set aside the
dismissal would grant the application.
cp/e/qllxr/qlvxw
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