|817006 B.C. Ltd. v. Hatch, Your Honour, I would like to first bring to your attention that Lynx Mobile Truck Repair is not a legal entity|
IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE MATTER OF THE JUDICIAL REVIEW PROCEDURE ACT,
0817006 B.C. Ltd. and
Lincoln Hatch dba Lynx Mobile Trucker Repair
Before: The Honourable Mr. Justice Cole
Judicial Review from Arbitrator Warner, Provincial Court (Small Claims),
Reasons for Judgment
 The petitioner seeks an order pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, to set aside the order of Adjudicator Warner, made November 20, 2009, amending a notice of claim in the Provincial Court, an order setting aside the simplified trial order made by Adjudicator Warner as a result of the amendment, and a declaration that Adjudicator Warner exceeded his jurisdiction in making the orders.
 The petitioner sets out a number of grounds for the petition, which are classified into three categories, as follows:
1. Adjudicator Warner failed to abide by the requirements of the Small Claims Rules, B.C. Reg. 261/93, when allowing the amendment and thereby exceeded his jurisdiction;
2. Adjudicator Warner, in determining that an amendment should be granted, made an unreasonable decision in that he failed to take into consideration relevant legal principles and to make certain factual inquiries in determining whether to grant the amendment; and
3. Adjudicator Warner failed to abide by common law rules of procedural fairness and the procedures for notice and response, set out in the Small Claims Rules.
 The notice of claim in the Provincial Court listed the claimant’s name as “Lynx Mobile Truck Repair” and sought payment for services and materials provided. However, “Lynx Mobile Truck Repair” is a trade name and the notice of claim did not list the legal entity behind it. The defendant, now the petitioner, Dan Wallace doing business as Western Transportation and 0817006 B.C. Ltd. doing business as Western Transportation, sought legal advice and determined that because the claimant was not a legal entity, the notice of claim was a nullity and thus he filed only a minimal reply. While Mr. Wallace believed he had a valid setoff or counterclaim, he did not raise that issue in the pleadings because as he understood, the plaintiff being a non-legal entity, meant that his setoff or counterclaim would also be a nullity. He intended to argue at trial that the notice of claim should be dismissed.
 When the matter came before Adjudicator Warner on November 20, 2009, Mr. Wallace raised the issue of the claimant being a non-entity and this exchange took place at the commencement of the simplified trial:
THE DEFENDANT: Your Honour, I would like to first bring to your attention that Lynx Mobile Truck Repair is not a legal entity and --
THE ADJUDICATOR: Well, it’s a proprietorship I heard.
THE DEFENDANT: Well, it doesn’t -- it doesn’t say that it’s a proprietorship and I would ask that you would --
THE ADJUDICATOR: All right. Well, I hear what you’re saying. Go ahead.
THE DEFENDANT: And that the claim either be amended or set aside.
MR. HATCH: Matter of substance over form, Your Honour. It’s --
THE ADJUDICATOR: Well --
MR. HATCH: Lincoln Hatch is Lynx Mobile Repair, but it’s --
THE ADJUDICATOR: So are you asking me --
MR. HATCH: -- Mobile Repair --
THE ADJUDICATOR: -- to amend it, “doing business as”?
MR. HATCH: If that’s Your Honour’s wish, that would be satisfactory to us.
THE ADJUDICATOR: Well, that’s not going to be my wish. I don’t do anything on my own. Are you asking me to amend it?
MR. HATCH: I would ask to make that.
THE ADJUDICATOR: All right. So --
MR. HATCH: Amended party to be Lincoln Hatch doing business as Lynx Mobile Truck Repair.
THE ADJUDICATOR: Okay. Okay, Mr. Wallace. I’ve granted that amendment, by the way.
 It is clear from the transcript that the Adjudicator did not afford Mr. Wallace an opportunity to argue whether or not the claim should be amended or set aside.
 While it was Mr. Wallace who suggested a dismissal or an amendment, he was of the view that if the Court deemed an amendment to be appropriate, he expected the Court would adjourn so that the notice could be amended by way of proper application in accordance with the Small Claims Rules and with an opportunity for him to oppose the application and file an amended reply/counterclaim. I am satisfied it was the duty of the Adjudicator to advise the defendant that he had a right to file an amended reply and counterclaim.
 Following the order allowing the amendment, however, the Adjudicator proceeded with the trial on that basis.
 The issue of a setoff was raised by the defendant during the hearing but was dismissed by the Adjudicator, who when giving his reasons for judgment, stated “[n]o evidence was produced that would properly support setoff, nor was setoff pleaded in any way."
 It is impossible, of course, for the defendant to file a claim for setoff when it appeared obvious from the style of cause that the claimant was not a legal entity.
 The Adjudicator pronounced judgment against Mr. Wallace.
 The Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 90,  1 S.C.R. 190, held that the overarching purpose of procedural fairness is to ensure that administrative decision makers exercise their powers fairly in coming to decisions that affect the interests of individuals.
 While the content of procedural fairness is variable and is to be decided in the context of a specific case, the Court noted, at para. 77, that procedural fairness is at issue where an administrative body has prescribed rules of procedure that have been breached. Procedural fairness is also concerned with the right to answer and defence when one’s rights are affected.
 I am satisfied that the failure to afford Mr. Wallace the opportunity to make his submissions offends the principle of procedural fairness as set out in Dunsmuir, where Mr. Justice Binnie, in a concurring decision, stated at para. 129:
 ... [A] fair procedure is said to be the handmaiden of justice. Accordingly, procedural limits are placed on administrative bodies by statute and the common law. These include the requirements of “procedural fairness”, which will vary with the type of decision maker and the type of decision under review. On such matters, as well, the courts have the final say. The need for such procedural safeguards is obvious. Nobody should have his or her rights, interests or privileges adversely dealt with by an unjust process.
 I am also satisfied that the Adjudicator’s failure to apply the notice and form requirements for the amendment as prescribed by theSmall Claims Rules, offended procedural fairness and prejudiced the petitioner.
 The following is a summary of the applicable procedure under the Small Claims Rules.
 Rule 9.1 of the Small Claims Rules stipulates that claims under $5,000 are subject to a simplified trial, heard by an adjudicator.
 Rule 8(1) allows the notice of claim to be amended after the commencement of the simplified trial with the permission of the judge. The Rule reads:
(1) Anything in a notice of claim, reply or other document that has been filed by a party may be changed by that party
(a) without any permission,
(i) at any time before the settlement conference begins, or
(ii) if a settlement conference will not be held, at any time before the earliest of the following:
(A) a mediation under Rule 7.4;
(B) a trial conference under Rule 7.5;
(C) a trial under Rule 9.1 or 9.2, and
(b) with the permission of a judge (see Rule 16 (7)), at any time after that.
 Because an amendment to a notice of claim under Rule 8(1)(b) can only be made by a judge, Rule 9.1(31) deems the adjudicator to be a “judge” for the purposes of various Rules including Rule 8:
(31) For the purposes of applying Rules 8, 9, 11, 12, 16, 17 and 20 to a claim to which this rule applies, a reference in Rules 8 (1) (b) and (6), 9 (5) and (6), 11, 12 (2) (c), 16 (6) (g) and (o), 17 (14) and (15) and 20 to a "judge" must be read as a reference to an "adjudicator".
 Rule 16(7) deals with the procedure for bringing applications that can only be heard by a judge (or in this case an adjudicator) under Rule 16(6) and by reference, Rule 8(1)(b), as follows:
(7) To apply for an order listed in subrule (6), a party must complete an application (Form 17), following the instructions on the form, and file it at the registry where the court file is unless the registrar allows the application to be filed at another registry (see subrule (8)).
 Form 17 must be served on the other parties at least 7 days in advance to give notice of the application and the right to appear to oppose it. Rule 16(9) states:
(9) At least 7 days before the date set for hearing an application under subrule (7), the applicant must serve a copy of the application, and the affidavit if required (see Rule 17 (2)), on each party that would be affected by the order requested unless the application is for a default order because no reply to a third party notice has been filed.
 Rule 8(3.1) gives a defendant a right to change its reply upon being served with an amended notice of claim:
(3.1) A party who is served with a revised notice of claim, counterclaim or third party notice
(a) may, by following subrule (3), change a reply already filed by that party, or
(b) may rely on a reply already filed by that party.
 Based on the forgoing, I am satisfied that the Adjudicator could entertain the application for an amendment under Rule 8(1)(b), but by failing to allow Mr. Wallace to make submissions, by failing to follow the filing and service procedure under Rule 16(7) and by failing to notify Mr. Wallace that he had a right to file an amended reply under Rule 8(3.1), the Adjudicator adversely affected the rights of Mr. Wallace and I am satisfied that the process was unjust and violated the principles of procedural fairness.
 He also incorrectly interpreted his jurisdiction to make such an order. Questions of jurisdiction are determined on a standard of correctness: Dunsmuir.
 The effect of the Adjudicator’s ruling was to abridge the time for Mr. Wallace to file a reply and setoff claim and the Adjudicator does not have the power to do that. The powers given to a judge under Rule 16(2)(l), the right to make an order extending or shortening a time limit, is not included in the powers granted to an adjudicator under Rule 9.1(31), and therefore I conclude the abridgment was incorrect as beyond the jurisdiction of the Adjudicator. The Adjudicator should have adjourned the trial or made the necessary inquiries to see that the rights of Mr. Wallace were protected.
 It became obvious during the hearing that the position of Mr. Wallace was that the contract that was made with the claimant was in respect to a motor vehicle that was owned by a different legal entity, namely BCI Bulkhaul Carriers, which were not listed on the notice of claim and were not represented at the hearing. By not affording Mr. Wallace the opportunity to make submissions in respect to whether or not the claim should be amended or struck, the consequence was that the Adjudicator did not enter into any analysis whatsoever as to whether or not the proceedings were a nullity or whether it was appropriate to substitute the proper legal entity on the basis that it merely cures the irregularity by way of a misnomer of the claimant.
 In Sutton Group - Resource Realty v. Duncan (14 October 1992), Victoria 2931/92 (S.C.), although the proceedings dealt with setting aside a garnishing order, Mr. Justice Hutchison, dealing with the identity of the parties, stated this at 7:
When it comes to the identity of the parties in a proceeding, the authorities clearly indicate that this is not considered per se a matter of “mere technicality”. The determinative factor is whether in the circumstances of the particular case, the error involving identity is of material significance in terms of creating uncertainty, confusion, or prejudice...
 I am satisfied that the Adjudicator treated the application to amend as a mere technicality and failed to enter into an inquiry as to whether or not the defendants were prejudiced or confused by the name of the claimant on the notice of claim. While the decision of whether this was an irregularity or a nullity was within the Adjudicator’s jurisdiction, I am satisfied that the decision of the Adjudicator was unreasonable.
 I am satisfied that the orders of the Adjudicator should be set aside. They offend the principle of procedural fairness and the Adjudicator exceeded his jurisdiction in making them.
 This court has no jurisdiction to order a new trial in the Provincial Court. It appears that, if a new trial is determined to be the proper remedy, then that trial must be held in this court: U.C. Home Equity Development Ltd. v. Honourable Judge Tweedale (1996), 24 B.C.L.R. (3d) 135; Garry v. Pohlmann, 2001 BCSC 1234; Shaw Cablesystems Ltd. v. Er-Conn Development Inc., 2004 BCCA 542 at para. 16; and Hansen v. Purdue, 2005 BCSC 352, 43 B.C.L.R. (4d) 158. In the result, I order a new trial to be heard in the British Columbia Supreme Court.
 The petitioner is entitled to his costs of this proceeding on Scale B.
The Honourable Mr. Justice F. W. Cole