R.J.P. v. P.K.B.

2003BCSC0104 Citation: R.J.P. v. P.K.B. Date: 20030128 2003 BCSC 104 Docket: F991716 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: R.J.P. PLAINTIFF AND: P.K.B. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE S.R. ROMILLY Counsel for the Plaintiff G.J. Niemela Counsel for the Defendant L.J. Mattingley Date and Place of Hearing: January 6, 2003 Vancouver, BC [1] This is an application for summary judgment under Rule 18 of the Supreme Court Rules. The defendant is seeking an assessment of monies payable to her as the former common law spouse of the plaintiff. A question has been raised as to the appropriateness of proceeding with this matter summarily under Rule 18 given the conflicting evidence provided in the myriad of affidavits put before me. For the reasons stated below I am confident that I am only able to deal with this application in part given my limited jurisdiction in Rule 18 proceedings. [2] Before I proceed into my reasoning I intend to first set out the general factual background followed by the procedural history of this matter. Factual Background [3] The defendant, Ms. P.K.B., is 44 years old and the former common law spouse of the 53 year old plaintiff, Mr. R.J.P.. The parties first met in 1979 when the defendant began working for the plaintiff at C.[ ] Ltd., a business previously owned by the plaintiff. The defendant then moved on to another of the plaintiff's businesses, L.[ ] Ltd., in 1983. They began a romantic relationship in 1986 and eventually moved in together in 1990. The parties separated in June of 1999, effectively ending their relationship. [4] The parties have no children together; however, the defendant has an adult daughter ("S.") from a previous relationship. S. and her infant child currently reside in the plaintiff's residence due to the estranged relationship she has with her mother, the defendant. Procedural Background [5] On June 2, 1999 Mr. R.J.P. filed a Writ commencing these proceedings. He claimed a division of family assets and costs. On the following day he filed an amended Statement of Claim. The Statement of Claim was amended again on November 8, 1999 pursuant to Rule 24(1)(b) and a consent order filed on the same day. [6] Ms. P.K.B. filed an Appearance and Statement of Defence and Counterclaim on December 1, 1999, claiming that it was the common intention of the parties to share equally the property and assets that they acquired, preserved or enhanced during the relationship including the business, L.[ ] Ltd. It is Ms. P.K.B.'s position that she contributed directly and indirectly to the acquisition, preservation and enhancement of the former matrimonial home and other assets including the business, L.[ ] Ltd. Ms. P.K.B. also sought compensation and restitution of her beneficial one half interest by imposition of a constructive trust against realty, the business and personalty, as well as a declaration of trust with respect to these assets. Ms. P.K.B. also sought monetary compensation for her direct and indirect contribution to the acquisition, preservation, enhancement and maintenance of all the assets. Ms. P.K.B. also sought a restraining order preventing Mr. R.J.P. from disposing of any assets whether personal or business assets. Ms. P.K.B. also sought spousal support. [7] Ms. P.K.B. alleged that she directly and indirectly made the following contributions: (a) contributions of cash in various amounts and at various times; (b) contributions of time and labour toward L.[ ] Ltd.; (c) purchases of furnishings and chattels; (d) contribution of time, labour and materials toward upkeep, maintenance, preservation and improvement of the S.[ ] St. property; and (e) contributions of household services and household management for the benefit of the plaintiff, including but not limited to cooking, cleaning, entertaining and shopping. [8] Ms. P.K.B. also sought an accounting of the assets subject to the trust, including L.[ ] Ltd., as well as an accounting of the profits, dividends, interests, monies and income received by Mr. R.J.P., in respect of the property subject to the trust, including L.[ ] Ltd. [9] On November 29, 2001 Ms. P.K.B. filed an amended Counterclaim deleting her claim for spousal support. [10] On March 22, 2000 and March 2, 2001 Ms. P.K.B. prepared a Notice of Motion which was filed on August 10, 2000 and heard in March of 2001 seeking the following relief: (a) that the former matrimonial home be offered for sale, with Ms. P.K.B. to have exclusive conduct of sale given the fact that the home was solely registered in her name. (b) that the following debts be paid from the net sale proceeds: Royal Bank Visa $6,901.82 TD Visa $1,110.00 Scotiabank $4,900.00 Zellers $ 170.00 Amex $2,328.00 St. Joseph's Hospital $10,000.00 U.S. Bellingham (c) that Mr. R.J.P. be restrained from disposing of any assets in which Ms. P.K.B. has or may have, an interest, pending the final determination of this action, without Ms. P.K.B.'s consent or without further order of this court. (d) that Mr. R.J.P. deliver up all Ms. P.K.B.'s personal possessions and furniture as requested. [11] In the Outline which was also dated March 22, 2000, counsel for Ms. P.K.B. stated that Mr. R.J.P. was purposely allowing the business (L.[ ] Ltd.) to deteriorate in order to hinder or defeat Ms. P.K.B.'s claim against the business assets. [12] A Demand for Discovery of Documents and Notice to Produce dated March 24, 2000 was forwarded to counsel for the plaintiff shortly thereafter. [13] Mr. R.J.P., in his Outline opposed Ms. P.K.B.'s application for a restraining order and sale of the S.[ ] St. property. His reasons for opposing a restraining order were that the facts of this case and the sworn evidence before this Court did not warrant the granting of such an order. He also opposed the Rule 18A application because he believed that it was premature as the parties had not disclosed documents and the plaintiff did not have time to discover Ms. P.K.B.. He also stated that an order for the sale of the home was not necessary or expedient or alternatively it was premature at that stage of the proceedings. [14] Ms. P.K.B.'s application came on before this court on October 25, 2000 and was adjourned so that the parties could obtain appraisals. [15] Mr. R.J.P. then sought relief from this court, namely: (a) that M.O. (Ms. P.K.B.'s sister who lives in Scandinavia) attend at United Reporting to be cross-examined on her Affidavit. (b) that Ms. P.K.B. pay for the initial cost of Ms. M.O. attending at United Reporting. (c) that Ms. P.K.B.'s application for a restraining order be adjourned pending the cross-examination of Ms. M.O.. (d) alternatively that Ms. P.K.B.'s application for a restraining order be heard in the absence of filing in evidence Ms. M.O.'s Affidavit. [16] Mr. R.J.P.'s position with respect to the sale of the S.[ ] St. property was that he should be permitted to purchase the property after deducting an amount equivalent to the real estate commission (this latter part was opposed by Ms. P.K.B.). [17] The applications were heard by the Honourable Mr. Justice Scarth on March 20, 2001 and an order was pronounced on March 22, 2001. Mr. R.J.P.'s application was dismissed. Ms. P.K.B.'s application for a restraining order was granted. The S.[ ] St. property was purchased by the plaintiff for $195,000.00 and the net sale proceeds were paid into court. [18] On June 8, 2001 the parties entered into a consent order (with respect to the discovery of documents) that all documents obtained under this consent order would not be disclosed to any other person. However, when it came time to disclose documents Mr. R.J.P. did not do so. [19] On February 6, 2002 Ms. P.K.B. applied to this court for an order requiring Mr. R.J.P. to comply with the Demand for Discovery of Documents and Notice to Produce. Ms. P.K.B. was successful on this application. [20] On February 12, 2002 Mr. R.J.P. applied to this court for an order requiring Ms. P.K.B. to provide certain documentation relating to her income after the parties separated as well as tax returns. Mr. R.J.P. was unsuccessful on this application. [21] On March 22, 2002 Mr. R.J.P. appealed the orders made on February 6 and 12, 2002. Mr. R.J.P. was unsuccessful and costs were awarded against him. [22] On June 4, 2002 Ms. P.K.B. applied to this court for an order striking out Mr. R.J.P.'s Writ and Statement of Claim for failure to comply with the previous orders relating to disclosure and discovery of documents. Ms. P.K.B. was successful on her application and Judgment was entered for her on her counterclaim, with the amount payable to her to be assessed by this court and costs were awarded against Mr. R.J.P.. Current Application [23] In addition to costs, the defendant in the present application is seeking the following: Damages be assessed on the defendant's counterclaim in accordance with Rule 18 of the Rules of Court. The sum of $38,174.98 which was paid into Court by the plaintiff pursuant to the Order of the Honourable Mr. Justice Scarth pronounced on March 22, 2001 be paid to the defendant forthwith. [24] The plaintiff does not dispute the granting of an order paying the defendant the sum of $38,174.98; the remaining proceeds from the sale of the matrimonial home. As such I order that the full amount paid into court, $38,174.98, plus interest, be paid to the defendant without further order. With respect to the damages available on the defendant's counterclaim, however, the plaintiff has submitted that this cannot be dealt with under Rule 18. Rule 18 [25] The plaintiff has submitted that this application cannot proceed under Rule 18 for two reasons: the first reason being that there are conflicting affidavits on virtually all of the facts in question, and the second that Rule 18 is not suitable for applications in which a bona fide triable issue has been raised. [26] With respect to the purpose of Rule 18 the following is stated in Fraser & Horn's, The Conduct of Civil Litigation in B.C., looseleaf (Markham, Ont.: Butterworths, 2000) c. 20 at p. 560: The purpose of the Rule is to enable the plaintiff to obtain summary judgment without trial if he can prove his claim clearly and if the defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried. [citing Roberts v. Plant, [1895] 1 Q.B. 597 (C.A.); Hughes v. Sharp (1969), 68 W.W.R. 706 (B.C.C.A.)]. The Rule is intended to prevent vexatious defences but is not intended to cast an onus on the defendant in every case of proving on oath a good defence. An application for summary judgment therefore ought only to be made in plain cases and ought not to be made where a plaintiff knows that the facts as to liability are in dispute, or are of a complicated or difficult character or are not facts within the knowledge of the defendant. [27] This is not a plain case; the affidavits before me portray two different stories. Facts directly relevant to the issues the court is being asked to resolve are in dispute and as such triable issues have been raised. I am unable to resolve these issues without making findings of fact based on determinations of the affiants' credibility. I do not believe Rule 18 proceedings are appropriate for making such findings given my limited jurisdiction under the Rule. [28] While I recognize the defendant's desire to resolve this matter speedily through the utilization of summary proceedings, they should only be used in the appropriate circumstances. As such, in order to determine the appropriate assessment of damages, if any, available to the defendant, aside from that already ordered above, the matter must proceed to trial where credibility can be judged and findings of fact made. Costs [29] Given that I have found that these are not the appropriate proceedings under which this matter can be dealt with in its entirety, I award costs in favour of the plaintiff. "S.R. Romilly, J." The Honourable Mr. Justice S.R. Romilly