IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150529

Docket: 12-3114

Registry: Victoria

Between:

Jasmine Leigh
Piccioni

Plaintiff

And:

Gloria
Aurore Carriere, Daniel Edward Smethurst and
Greyhound Canada Transportation ULC dba Greyhound of Canada

Defendants

And:

Gloria Aurore
Carriere

Third
Parties

Before:
The Honourable Mr. Justice Bracken

Oral Reasons for Judgment

(In
Chambers)

[1]            
THE COURT: The plaintiff applies for an order that a settlement
agreement signed by her mother as her guardian and the defendant Greyhound is
void and of no force or effect, because it was never approved or consented to
by the Public Guardian and Trustee.  The Public Guardian and Trustee is
required to review and consent to such settlements pursuant to s. 40 of the Infants
Act, R.S.B.C. 1996, c. 223.

[2]            
The plaintiff relies on Rule 9-5 in an application to strike out the
pleadings, in particular paras. 7 to 12 inclusive which are the relevant
paragraphs of the defendants’ response to notice of civil claim.

[3]            
The defendants Greyhound and Smethurst oppose the application on the
ground that Rule 9-5 is not an appropriate or applicable rule in the
circumstances of this application; that is, an application to strike out
pleadings.

[4]            
On March 4, 2008, the plaintiff was travelling as a passenger on a bus
operated by Greyhound and driven by the defendant Smethurst.  The bus was en route
from Nelson to Salmo in British Columbia when it left the travelled portion of
the highway and was driven into the ditch.  The plaintiff received injuries
that she says have interfered with her ability to work and earn income, and
will continue to do so in the future.

[5]            
In August of 2008, presumably after some discussions, Mrs. Jennifer
Brock, the plaintiff’s mother, signed a settlement agreement with the
defendants that provided a $2,750 settlement in exchange for a full release of
all claims of the plaintiff against Greyhound and Smethurst.

[6]            
The plaintiff has provided evidence from Peter Brown, a solicitor for
the Public Guardian and Trustee’s office, stating that he has canvassed the
records of the Public Guardian and Trustee and determined that there is no
record in the Public Guardian and Trustee files of any request for approval of
the settlement or any consent of the Public Guardian and Trustee to the terms
of the settlement, as required by the provisions of the Infants Act.

[7]            
The defendant Greyhound issued a third-party notice against Gloria
Aurore Carriere.  Ms. Carriere, through counsel, was present at the application;
however, she took no position on this application.

[8]            
The defendants rely on the settlement agreement in their pleadings. 
They state in paras. 7 to 12 of their response to civil claim that the
agreement was signed by the plaintiff’s guardian, the settlement funds have
been paid, and the defendants have therefore been released from any further
liability for the injuries caused to the plaintiff.

[9]            
The plaintiff submits that the law requires compliance with the Infants
Act if the settlement agreement and release are to be effective.  The Infants
Act requires that the Public Guardian and Trustee review proposals for
settlement in cases involving minors and to provide consent to the terms before
a settlement can be binding on a minor:  see Wong v. Lok’s Martial Arts
Centre Inc., 2009 BCSC 1385 at para. 60.

[10]        
Therefore, the plaintiff submits the settlement agreement cannot be of
any force or effect and therefore cannot provide a defence to the defendants. 
She submits that the relevant pleadings should be struck out.

[11]        
Rule 9-5 of the Supreme Court Civil Rules provides as follows:

(1)        At any stage of a proceeding, the court may order
to be struck out or amended the whole or any part of a pleading, petition or
other document on the ground that

(a)        it discloses no reasonable claim or defence, as
the case may be,

(b)        it is unnecessary, scandalous, frivolous or
vexatious,

(c)        it may prejudice, embarrass or delay the fair
trial or hearing of the proceeding, or

(d)        it is otherwise an abuse of the process of the
court,

and the court may pronounce
judgment or order the proceeding to be stayed or dismissed and may order the
costs of the application to be paid as special costs.

[12]        
In this case, the plaintiff seeks costs in any event of the cause.

[13]        
The submission of the plaintiff is that as the settlement cannot stand
because it has not been reviewed or consented to by the Public Guardian and
Trustee, the defence should be struck out, as the relevant paragraphs are not
material to the defence and disclose no reasonable defence.  Alternatively, it
is argued that the pleadings are frivolous or vexatious or that they constitute
an abuse of the court’s process.

[14]        
The plaintiff argues that by including and relying on a pleading that is
bound to fail, the pleading has not been fairly or honestly made, or is being
used for an improper purpose and thus falls within the ambit of an abuse of
process:  see Conduct of Civil Litigation in British Columbia, Horn and
Griffin, 2nd Edition, at pp. 30‑5 and 30‑6.

[15]        
It must be “plain and obvious” that the pleading is improper: Herbison
v. Canada (Attorney General), 2013 BCSC 2020.

[16]        
In Mayor of London v. Horner (1914), 111 L.T. 512 at 514 (C.A.),
the court defined “embarrassing” to mean that the allegations are:

…so irrelevant that to allow
them to stand would involve useless expense, and would also prejudice the trial
of the action by involving the parties in a dispute that is wholly apart from
the issues.  In order that allegations should be struck out from a defence upon
that ground … their irrelevancy must be quite clear and, so to speak, apparent
at the first glance.  It is not enough that on considerable argument it may
appear that they do not afford a defence.

[17]        
That case and definition has been adopted in Canada in Mahoney v.
Coca Cola Ltd., B.C.S.C., No. 1612/64, 21st February 1967, and Maddison
v. Donald H. Bain Ltd., 39 B.C.R. 460.

[18]        
The plaintiff submits that the defence of settlement cannot succeed in
this case and must be struck out to avoid wasted time and expense at trial.  The
plaintiff says that the concept of abuse of the court’s process is a very broad
one and can be invoked to prevent a party from using the processes of the court
as a means of vexation or oppression.

[19]        
The court’s process must be used fairly and honestly: Babavic v.
Babowech, [1993] B.C.J. No. 1802 (B.C.S.C.).  It follows that the court
should intervene to protect its process if it is being used as a means of
oppression, harassment, or to simply inconvenience or bully the opposite party
into a resolution by creating additional expense.

[20]        
However, as the defendants point out, the power to strike out a pleading
should only be invoked if it is plain and obvious the pleading offends the rule
and it is confined to the enforcement of the rules of pleading.  As such, it is
directed to the sufficiency of the pleading and not to the evidence: International
Taoist Church of Canada v. Ching Chung Taoist Association of Hong Kong Limited,
2011 BCCA 149.

[21]        
An application to strike pursuant to Rule 9-5 proceeds on the basis that
the facts as pleaded are true.  Here, of course, it is accepted that the
plaintiff’s mother, as her guardian, did in fact sign the settlement and
release, and there is nothing to contradict the defendants’ assertion that the
money has been paid.  The issue is whether the settlement agreement can be
relied upon as a matter of law.

[22]        
In an application to strike, the issue is the pleadings, not the
evidence.  It is not open to the court to speculate upon what evidence lay
behind the pleading or what the defendant might be able to show at a trial: R.
v. Imperial Tobacco Canada, 2011 SCC 42 at para. 23.

[23]        
Thus, it may be that the defendants are in a position to provide
evidence that the settlement was in compliance with the Infants Act or
to provide some other basis for maintaining the pleading based on evidence at
trial.  The court is not able to deprive the defendants of that opportunity on
an application pursuant to Rule 9-5, notwithstanding the apparent strength of
the plaintiff’s position.  The evidence to be presented may create an entirely
different result.

[24]        
Obviously, if the defence has such information, it would have been
useful to have it brought forward at this stage; however, there is no
obligation in an application to strike out pleadings upon the defendants to do
so.  Therefore, the plaintiff’s application to strike the relevant paragraphs
of the defendants’ response to civil claim must be dismissed.

[25]        
The plaintiff obviously may renew that application pursuant to Rule 9-6,
if so inclined at some stage of the proceedings in advance of the trial.

[26]        
In the circumstances, I think the costs of this application should be
costs in the cause.

               “J.
K. Bracken, J.”                

The
Honourable Mr. Justice Bracken