(READER: Please pay close attention to the (non) sense of its rhetoric; the winding of reasoning; its careful phrasing, leading to its pre-set conclusion; the Court's playing with a determined old fool)
(TELECONFERENCE COMMENCES)
(S. HELMAN BY TELECONFERENCE)
THE CLERK: Calling number 6 on the list, Your Honour, the matter of Evert Steen, Company (1234567)* Canada Inc.
THE COURT: All right.
THE CLERK: Could you identify yourself to the judge, please.
EVERT STEEN: I'm Evert --
MS. HELMAN: My name is Helman, first initial S., and I am the representative for the defendants in this action.
THE COURT: All right. Thank you. And you're Mr. Steen?
EVERT STEEN: Yes.
THE COURT: All right. And you're representing yourself?
EVERT STEEN: I am.
THE COURT: All right, Mr. Steen. And I have read the file and I understand this is an application for a dismissal of your claim on the basis of lack of jurisdiction.
EVERT STEEN: That is where they seem to -- want to go, yes.
THE COURT: All right. So take a seat, Mr. Steen, and I'm going to hear first from Ms. Helman, because it's their application, so they get to go first and explain their situation, and then I will hear from you, and then I'll decide.
EVERT STEEN: Take a seat here?
THE COURT: Yes, just take a seat right where you are, please.
All right. Ms. Helman, I've read the affidavit material.
MS. HELMAN: Okay.
THE COURT: And just perhaps encapsulate briefly what your submissions are so that Mr. Steen -- that I know that he understands --
MS. HELMAN: Certainly.
THE COURT: -- what you're applying for.
MS. HELMAN: Okay. Well, our application here -- really the question before the court is whether this is the appropriate registry, and our submission is that it is not, for a number of reasons.
The defendant lives and carries on its business in Ottawa, Ontario. All of its assets are in Ontario, and it's our understanding that the trust transaction or event that this proceeding appears to be based on relates to work that was done by the defendant out of their office in Ontario.
So our effort is to try to deal with this issue at the outset before the proceedings go on to take up more time of the court or the parties with a settlement conference and all of this, because in our view, based on the Small Claims Rules, as well as the Court Jurisdiction and Proceedings Transfer Act, the appropriate registry is closest to where the defendant resides, that is the preferred registry, according to the Small Claims Rules. And it's our submission that there are good reasons for that, particularly in this case where -- it's an effort to assist defendants in their ability to defend the claim with minimal ‑‑ minimizing the expenses involved, and as well, it serves to assist plaintiffs should it ‑‑ should they obtain a judgment and seek to enforce it.
THE COURT: Mm-hmm.
MS. HELMAN: So it's -- in summary, basically, we are making an effort to try to have this transferred or dismissed from this registry because of the non-compliance with the Rules or the legislative ‑‑
THE COURT: All right. So you're invoking Rule 1(2) that:
(2) A claimant must file a notice of claim . . . where
(a) the defendant lives or carries on business, or
(b) the transaction . . . that resulted in the claim took place.*(Plaintiff bold)
And you're saying that neither apply in this case? *(1)
MS. HELMAN: That's right. *(2)
THE COURT: All right. Thank you.
Mr. Steen, would you please stand up, sir. You've read the material, I take it --
EVERT STEEN: Oh, yes --
THE COURT: -- that you've received?
EVERT STEEN: -- oh, yes. THE COURT: And what Ms. Helman is asking me to do is dismiss your claim on the basis that under the Small Claim Rules, Rule 1, that when a claimant files a notice of claim it has to be either where the defendant lives or carries on business -- and in this case, we're dealing with a corporation, so it's where they carry on business -- or where the transaction took place. *(3)
So if you don't -- if that didn't happen in Courtenay, then you have to proceed in the area where the defendant carries on business or where the contract or the transaction occurred. * (4) And they're saying that neither occurred in the Courtenay Registry, so that I should dismiss your claim.
So what do you say about that?
EVERT STEEN: I say that the defendant is hanging on technicalities and not dealing with the actual issues. I feel that I have sufficiently informed myself of the facts that are stated in the Small Claim Rules books, where it specifically states that as far as a potential of a claim is concerned, if it is for -- if it's for the purchase of services -- and remember that it was a contract signed -- and if it resulted from a solicitation of business in British Columbia on behalf of myself as the purchaser of this business, (h) on page 5 is -- also talks about it ‑‑ if it concerns a business carried on in British Columbia. I am carrying on this business.
Furthermore, that it's a website-related contract that from that perspective I know it to be a fact that many contracts that are -- that pertain to the creation of websites are extraprovincial, so I'm not quite sure whether this possibly is -- and you better than I, Your Honour, can tell --
THE COURT: Mm-hmm.
EVERT STEEN: -- inform me of that -- could quite well be a precedent setting case because we're not dealing hardware, per se -- we're not dealing houses here -- we are dealing with a business that was transacted, contracted, by mail mostly; I have over 1,014 emails. A contract which stipulated -- stipulates that the job would be done in eight weeks with an 11 week final on the contract. This did not take place. The project, in fact, was never completed. And we are now more than two years later. I have taken other measures, hired other web developers, and -- and brought it around, but it is no longer what it once was intended to be.
So I'm -- I'm asking for you to deal with this matter today, to look at the facts. It seems that the defendants has for some reason suddenly seems to be in the driver's seat. I hope -- I hope not.
So all in all what I'm saying is that I would like you to look at the contract because whether you are in one province or another, a contract is a contract.
The defendants sent me last night by email a Court of Appeal case that she wished to use as an example, why you in your wisdom should either dismiss the case or move it to another court, that court being in Ontario. And you know, there's a lot to go through here and I know your time is limited, so I think I've said -- said what I needed to say.
THE COURT: All right. Thank you, Mr. Steen, you may take a seat.
Ms. Helman --
MS. HELMAN: May I respond or --
THE COURT: Yes, I was just going to say to you, Mr. Steen says that the transaction took place in this jurisdiction so that's why I should construe the internet contract as something done locally.*(5)
What's your response to that?
MS. HELMAN: My response, Your Honour, is that the performance of the subject matter of the contract, the work that was done --
THE COURT: Mm-hmm.
MS. HELMAN: -- is work that wasn't done over the internet, it's work that was done in Ottawa by employees of the defendant.
THE COURT: Okay, can you just tell me what that work was?
MS. HELMAN: It is website development, and Mr. Steen could speak further on that, and I just want to make a note in terms of, you know, our lack of addressing the facts of the case, and that's because we're specifically trying to deal with this issue before we get into the merits of the claim.
THE COURT: Right. Well, this is just a preliminary application -- *(6)
MS. HELMAN: That's right.
THE COURT: -- on jurisdiction.
MS. HELMAN: Yes.
THE COURT: So you're saying there was software and that -- what was being worked on? Or you're not ‑‑
MS. HELMAN: My understanding it's a development of the website for the plaintiff --
THE COURT: Mm-hmm.
MS. HELMAN: -- and that it's technical work that's done by individuals who are living in Ottawa, and so a lot of the communication did occur over email, telephone, letters --
THE COURT: Okay.
MS. HELMAN: -- but it was performed --
THE COURT: Mm-hmm.
MS. HELMAN: -- the subject matter of the contract was performed in Ottawa.
THE COURT: All right, Mr. Steen, on that point did you wish to add anything? That I'm told that the actual work that was done for you was done by the technical folks over in Ottawa. What do you say about that?
EVERT STEEN: I say to that that I was in daily contact with the specific project manager --
THE COURT: Mm-hmm.
EVERT STEEN: -- who had been hired to do the work and be in touch with me on a daily basis --
THE COURT: And that person was in Ottawa?
EVERT STEEN: I beg your pardon?
THE COURT: Was that person in Ottawa?
EVERT STEEN: That person was in Ottawa --
THE COURT: Oh, okay.
EVERT STEEN: -- correct. And I was entirely involved for the many months it took for this project, so I was equally involved in my -- in my opinion, not so much in creating the effort but to certainly respond on an on-going basis to the effort.
Now, the bottom line to my rhetoric would be that website developers use computers as their main tools. I would be interested to know the facts as to what percentage of projects, i.e. jobs, i.e. contracts, to create website would be, in fact, extraprovincial, if not in other countries. I know that the CEO, "X", with whom I had initial connection, had just come back from the United States.
So I think and I feel that there is no reason, since I am the claimant, since I am the one who hired their talents, since we both signed the contract, since it's they who did not fulfill the contract -- and I lost valuable time and valuable money; we paid $43,000 for this effort, which was never -- never completed. The launch date came and went.
And, in fact, I disassociated myself from "1234567COMPANY" by the middle of December. In October I paid a final payment based on the fact that if I didn't, I would never have been able to see the final efforts, so that I was actually capable or able to call the project, as it was at the time, ours, and was allowed to remove it from their premises.
THE COURT: All right. Thank you, Mr. Steen.
Anything else you wanted to conclude with, Ms. Helman?
MS. HELMAN: I just -- just one remark in terms of the facts that Mr. Steen has just relayed to you in terms of his dissatisfaction with the contract and the performance of the work, I would say that this isn't the appropriate forum to be addressing these matters, and this is also the first time we're hearing any sort of details beyond what we have in terms of the notice of claim. So I just would say that this is not the time to be reviewing the merits of the claim.
EVERT STEEN: Hmm.
THE COURT: All right. Thank you.
I'll deal with the matter now.
[REASONS FOR JUDGMENT]
TC "[REASONS FOR JUDGMENT]", PreserveFormatting:=False \* MERGEFORMAT THE COURT: All right.
MS. HELMAN: Thank you, Your Honour.
THE COURT: All right, then.
EVERT STEEN: May I say one last thing?
THE COURT: Well, I don't know -- have we lost Ms. Helman?
MS. HELMAN: Pardon me?
EVERT STEEN: Oh, yeah, they're -- they're having a great time --
THE COURT: Oh --
EVERT STEEN: -- I'm sure. May I have a last word with you --
THE COURT: Yes. If -- Ms. Helman, you're still there? Because I can't hear from Mr. Steen if --
MS. HELMAN: Well, I'm here --
THE COURT: You're still there. Yes, certainly, Mr. Steen.
EVERT STEEN: I'm -- I'm looking at the Small Claims Rules --
THE COURT: Mm-hmm.
EVERT STEEN: -- and it specifically says here that:
A court has territorial competence in a proceeding that is brought against a person . . . if
(e) there is a real and substantial connection . . .
This is (e). *(7)
THE COURT: Mm-hmm.
EVERT STEEN:
. . . between British Columbia and the facts on which the proceeding against that person is based.
THE COURT: Mm-hmm.
EVERT STEEN: There's an agreement:
. . . that the person is ordinarily resident in British Columbia at the time of the commencement of the proceeding.
THE COURT: Mm-hmm.
EVERT STEEN: So, anyway, you -- you have ruled, so that it's been dismissed.
THE COURT: Yes.
EVERT STEEN: Thank you.
THE COURT: All right. Thank you. Thank you, Ms. Helman.
EVERT STEEN: And -- and there's nothing that I can do ‑‑
MS. HELMAN: Okay --
EVERT STEEN: -- any further I can do?
THE COURT: My position now is functus. What that means, that I can do no more.
EVERT STEEN: Yes.
THE COURT: If you wish to appeal my decision, then you're certainly welcome to do that, but I can't tell you how to do that. *(8) Obviously you'd need to confer with a lawyer and notify Ms. Helman. But I have made my ruling, so my role is complete.
EVERT STEEN: And am I able to get a transcript of this?
THE COURT: Yes --
EVERT STEEN: Yes.
THE COURT: -- you'll have to pay for it and you'll have to find out how to do that --
EVERT STEEN: When -- may I obtain this --
THE COURT: -- so you can just ask the registry and they should be able to give you all the information.
EVERT STEEN: And what is your name, Judge?
THE COURT: My name is Judge Saunders.
EVERT STEEN: Saunders?
THE COURT: Yes.
EVERT STEEN: Thank you.
THE COURT: All right. Thank you. Ms. Helman --
MS. HELMAN: Yes.
THE COURT: -- that concludes the matter. All right.
(PROCEEDINGS CONCLUDED)
___________________________________________________________________________*'s
1) Actual text of Rule for filing a notice of claim in BC!
Rule 1 - Making a Claim
Re 2 (b) "the transaction or event that resulted in the claim took place." (*3)
Rule 18 (6)(b) "the transaction or event that resulted in the claim took place in British Columbia."
A Court has territorial competence in a proceeding...if (a) (b) (c) (d)
(e) "there is real and substantial connection between British Columbia and those facts is presumed to exist if the proceeding *(7) (e) - concerns contractual obligations and... (*4)
(iii) A. is for the purchase of...Services....(and B.) resulted from solicitation of business in British Columbia by or on behalf of the seller..... (f) - concerns a business carried on in British Columbia. (*5)
*2) Hellman: "That's right." ..... Makes sense?
*6) Court: "This is just a preliminary application"
Hellman: "...that's right"
Court: "On Jurisdiction"
Hellman: "Yes"
(Claimant adds: "Mm-Hmmmm)
*8) Court: "If you wish to appeal my decision you are certainly welcome to do that..."
++++++++++++++++++++++++===========================++++++++++++++
Claimant's Note:
1) The Judge erred by clearly not considering all the additional pertinent and thus relevant Rule allowances for filing the e-commerce related claim in British Columbia.
2) The judge further erred with her dismissal, since the Ontario default Rule for filing a Claim states:
RULE 6 FORUM AND JURISDICTION
Place of Commencement and Trial
6.01 (1) An action shall be commenced,
(a) in the territorial division,
(i) in which the cause of action arose, or
(ii) in which the defendant or, if there are several defendants, in which any of them resides or carries on business; or...
Claimant's Note: Irony is, the Default Rules in the 2 Provinces, are reversed! Had the Claimant filed in Ontario, a Judge may well have indicated: "Mr. Steen, abundant Rules stipulate the Court of British Columbia to have territorial competence to hear your claim. I suggest you file your Claim in BC, Sir. I am going to have to dismiss your claim based on "Lack of Jurisdiction!"
"Hmmmmmmmmm......:)>>>"
Lastly! The BC Judge made an additional technical error by allowing the Claimant to appeal. After Claimant Steen had filed an Appeal, this time in the Supreme Court of British Columbia, Defense Counsel Helman (still on deck), filed a poignant application to dismiss, stating:
"One can file an Appeal AFTER a Trial, NOT a Hearing." Since all Court sessions in Small Claims Court are referred to as 'Hearings', Claimant Steen decided to abandon his actions in BC.
So much for what COULD have been settled for a mere $25,000!
+++++----------XXXXXXXX========++++++--------X=y +z
Oh for the laws of justice and those who apply them!
This too will pass.
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