14. YOU BE THE JUDGE!

"O human creature, ... you are the investigator without knowledge, the magistrate without jurisdiction, and all in all, the fool of the farce." (Michel de Montaigne)

The following is Dated May 7, 2010. It is Judge Madame Justine Saunders' order, based on her decision Claimant Steen filed his Claim in the wrong Jurisdiction. Defense's Application to dismiss is upheld.

Justice Madame Justine Saunders:  

THE COURT:  This is an application by the defendants' numbered company carrying on business as 'XYZ'(Name withheld by Respondent Steen). The application is for the court to dismiss the claim filed by Mr. Evert Jan Steen and (MW name withheld) in relation to a contract between the parties for website services.

Mr. Steen represents himself and Ms. 'M' and is opposed to the application.  Ms. Helman, appearing by telephone, represents the numbered company defendant.

The basis for the application is set out in the written submissions of the application of the defendants in the application to dismiss, which I have read, together with the affidavit material.  The basis for the application is that the claimant has not filed their notice of claim pursuant to Rule 1(2)a) and (b)*of the Small Claims Rules of the Province of British Columbia.

Ms. Helman has made submissions about the fact that, pursuant to Rule 1(2)(a), that the defendant is a company which is an extraprovincial company carrying on business in Ontario and it has no assets in British Columbia and that the notice of claim cannot succeed on that basis.  And then further, that the transaction occurred in Ottawa, namely that the services provided to Mr. Steen and Ms. 'M' were provided in Ottawa and Mr. Steen confirms that.  And that as a result, on the secondary ground, the transaction that resulted in the claim took place in Ontario and not in British Columbia.

 *  Mr. Steen asks me to go beyond the Rule and make this a precedent setting case, that we are dealing with internet-based claim, and that because he is the claimant residing in British Columbia and he was in constant contact with the technician in Ottawa, that I should allow him to pursue his claim in this jurisdiction.

The defendants did file a reply, and I have been provided with the Court of Appeal decision by the defendant in Borgstrom v. Korean Air Lines Co. Ltd., which sets out that in a case such as this where there has been a reply filed, this does not mean that the defendant has attorned to the court's jurisdiction.

I understand Mr. Steen has received a copy of that decision, because in this case the defendant did file a reply.

It is important for the court to point out that in a matter of this kind, the provincial court is a court of statute and that has to comply with the rules and the statutes and the legislation that govern this court's proceedings, and I am governed by the Small Claims Rule, Rule 1, which is what occurs when a person makes a claim, and in particular where the claim is filed, and I have no discretion to go beyond that.*

If I find that the claimant has filed a notice of claim in the wrong registry, then the matter has to be dismissed and prosecuted or proceeded with in the correct registry.  In this case, Ms. Helman says it is the Ottawa registry or the Ontario registry where the defendant carries on business and where the transaction took place.  *

So it is important for me to point out to Mr. Steen that that is what I have to comply with and I have no jurisdiction to go beyond that.  If this court has no jurisdiction, then the matter cannot proceed.*

I am satisfied on the affidavit material that the claim should be dismissed on the basis that the Provincial Court of British Columbia in Courtenay does not have the jurisdiction to deal with the matter pursuant to Rule 1(2)(a) and (b),* so in the circumstances, Mr. Steen, I am going to dismiss the claim for lack of jurisdiction because it was filed in the incorrect registry under the Small Claims Rules.

(JUDGMENT CONCLUDED)

READER: PLEASE READ POST NUMBER 15. THE COURT'S HEARING TRANSCRIPT FOR ABOVE JUDGE'S ORDER.

- Please pay close attention to Applicant Steen's endeavour to point out BC Jurisdiction, in the circumstances, according to the Rules of Civil Procedure, were, in fact, Relevant and thus applicable.