Thursday, June 26, 2014

Pendrell Place: Part 1 - Transcript of Hearing to Dismiss for Want of Prosecution Chris Monk's claim S032263 against Ascent Real Estate Management Corporation

S032263 Transcript Chambers 2014 June 26






               Discussion re procedural matters








         1                                   June 26, 2014

         2                                   Vancouver, BC


         4          (CHAMBERS COMMENCED AT 2:24 P.M.)


         6     THE REGISTRAR:  Calling number 13, Monk versus Crowe,

         7          and that's an hour and a half time estimate,

         8          My Lord.

         9     MR. MONK:  Good day, Your Honour.

        10     MS. PICOTTE-LI:  Lisa Picotte-Li for Ascent Real Estate

        11          Management Corporation and Michael Roach the

        12          applicants and defendants in this action.

        13     THE COURT:  Ms. Picotte-Li.

        14     MR. MONK:  And my name is Chris Monk.  I am the

        15          plaintiff.  I am self-represented.

        16     THE COURT:  Right.  Mr. Monk.

        17     MR. MONK:  Yes.  And, Your Honour, there are a few

        18          preliminary issues that I'd like to address before

        19          the hearing proceeds, if possible.

        20     THE COURT:  What are those preliminary issues?


        21     MR. MONK:  Ms. Picotte-Li, just two days ago, forwarded

        22          me a document that she informed me she was

        23          intending on producing in the court which I did

        24          not have the time to review within the set

        25          guidelines.

        26               And more importantly, Your Honour, this

        27          document focuses around --

        28     THE COURT:  Well, okay, so there is a document that she

        29          wishes to -- perhaps, Ms. Picotte-Li, you can

        30          advise me as to what the nature of the application

        31          is.

        32               And, Mr. Monk, please be seated.

        33     MR. MONK:  Sure.

        34     THE COURT:  And we'll start there.

        35     MS. PICOTTE-LI:  I wanted to address those housekeeping

        36          matters before we started in any event.  There

        37          were two applications filed.  It's at tab 1 and 4.

        38     THE COURT:  Yes.

        39     MS. PICOTTE-LI:  The tab 1 application is dated April,

        40          and the tab 4 application is dated May.  Both

        41          applications were filed because we had some

        42          difficulty with service.  They are identical

        43          except for the date and time of the hearing.

        44               The April application was not served, and it

        45          was not set for hearing today.  We will not be

        46          relying on that application, and it was included

        47          for the sole purpose of letting Mr. Monk know that






               Discussion re procedural matters








         1          it was filed because he is unrepresented.

         2     THE COURT:  All right.

         3     MS. PICOTTE-LI:  So to be clear, Mr. Monk was served

         4          with the May application, and he was also served

         5          with the affidavits of Mr. David Plunkett,

         6          Mr. Michael Roach and Ms. Leah Chandler.  That

         7          should address all of Mr. Monk's concerns, and if

         8          he'd like to speak more to that, he's welcome to.

         9               It's an application to dismiss, and it's in

        10          relation to a property damage claim arising

        11          from -- primarily from alleged misrepresentation

        12          at a strata complex in the West End.

        13     THE COURT:  All right.  So what you're saying is the

        14          only application that's been set for hearing is

        15          the application found under tab 4.

        16     MS. PICOTTE-LI:  That's correct.

        17     THE COURT:  And that's the application dated May 20th,

        18          2014.

        19     MS. PICOTTE-LI:  That's correct.

        20     THE COURT:  And that the other application, although

        21          filed, has never been set for hearing.

        22     MS. PICOTTE-LI:  That's correct, and it's adjourned

        23          generally.

        24     THE COURT:  And was adjourned generally.  All right.

        25          Mr. Monk?

        26     MR. MONK:  Your Honour, my response to this is what

        27          actually occurred was my learned friend here, even

        28          though -- after having been served the day before,

        29          decided to go and file an application in this

        30          action.  The Rules of Court apparently dictate

        31          that once a rule 44 form has been entered -- an

        32          intention to proceed in litigation -- that there

        33          is a 28-day period which bars all parties from

        34          doing anything.  And instead of abiding by this

        35          rule my friend over here decided to, less than two

        36          days -- a day after she had been served with a

        37          notice of intention to proceed filed affidavit

        38          application number 1 on April 11th.  And with that

        39          application, that number 1 on April 11th, she has

        40          two affidavits that are in support of that

        41          application.

        42     THE COURT:  But that application is not before me at

        43          this point.

        44     MR. MONK:  Correct, it is not before me.  But the issue

        45          is, then, while these affidavits had already been

        46          sworn to the application in question -- and the

        47          application in question at the time was the






               Discussion re procedural matters








         1          April 11th application, not the May 20th

         2          application -- what my learned friends did is they

         3          realized that because they ignored the 28-day

         4          period where nothing was to be done, they knew

         5          that the first application would have been thrown

         6          out.

         7               But instead of throwing out everything, what

         8          they did is they did not serve me with the first

         9          April 11th application but yet decided to keep the

        10          affidavits that were aimed at the April 11th

        11          application and were sworn for that application.

        12          And they've applied those affidavits to the

        13          application which they filed 20 days later,

        14          knowing that the first one they filed they should

        15          have never done it.

        16     THE COURT:  What's the problem with that?

        17     MR. MONK:  Well, the problem with that to me -- and I'm

        18          not a lawyer, Your Honour; I'm just bringing this

        19          forth to you -- is that when those affidavits were

        20          created by Michael Roach and Mr. Plunkett at the

        21          time the application in question was an

        22          application dated April 11th and not May 20.

        23     THE COURT:  Well, I -- what you're saying is that --

        24          your objection as I understand it is that the

        25          affidavits in support of the application that did

        26          not proceed should not be permitted in this

        27          application.

        28     MR. MONK:  Correct.  That's what I'm suggesting.

        29     THE COURT:  All right.  Well, I see no merit in that

        30          position.  The affidavits -- the fact that they

        31          were filed earlier, it seems to me, has no bearing

        32          on whether or not they may be -- contain

        33          information that's relevant to the proceeding --

        34          the application that's before me at this point.

        35     MR. MONK:  Okay.

        36     THE COURT:  All right.

        37     MR. MONK:  And, Your Honour, I have another issue that

        38          I'd like to bring forth.  It's that this action

        39          has come about as a result of a lot of related

        40          litigation which has been handled --

        41     THE COURT:  But you don't have an application before

        42          me.

        43     MR. MONK:  Sorry?

        44     THE COURT:  Do you have an application before me?

        45     MR. MONK:  No, I don't.

        46     THE COURT:  All right.  Well, I'm not going to hear you

        47          if you have -- on a matter that is not an






               Submissions for the defendants Ascent Real Estate and

               Michael Roach by Ms. Picotte-Li







         1          application before me.  If you have a response to

         2          something that is before me by way of this notice

         3          of application, I'll hear you at that time.

         4     MR. MONK:  Okay.  Thank you, Your Honour.





         9               So as I indicated, this is an application by

        10          the defendants Michael Roach and Ascent Real

        11          Estate Management Corporation to dismiss the

        12          plaintiff's claim under rule 22-7(7) for want of

        13          prosecution.

        14               The background to this claim is that the

        15          plaintiffs -- the plaintiff makes allegations

        16          against the applicants for misrepresentations made

        17          with respect to the purchase and sale of a strata

        18          unit at 1819 Pendrell Street in Vancouver.  He

        19          purchased unit 402, and Mr. Roach and Ascent were

        20          property managers of Pendrell Place in August 2000

        21          when the plaintiff purchased this unit.

        22               The plaintiff makes various allegations

        23          against the applicants, but they relate primarily

        24          to two things:  moisture in the building and

        25          problems that weren't disclosed or were disclosed

        26          but misrepresented to the plaintiff and, two,

        27          misrepresentations related to the purchase and

        28          sale documents.

        29     THE COURT:  All right.  So just a moment.  This

        30          proceeding was commenced in April 2003.

        31     MS. PICOTTE-LI:  That's correct.

        32     THE COURT:  All right.  And you're bringing on an

        33          application to have it dismissed for want of

        34          prosecution?

        35     MS. PICOTTE-LI:  That's correct.

        36     THE COURT:  All right.  And what was the last step that

        37          was taken in the action prior to you filing your

        38          notice of application?

        39     MS. PICOTTE-LI:  The last filed pleading in this matter

        40          was made in 2007 when the plaintiff filed a notice

        41          of intention to act in person.

        42     THE COURT:  Sorry, was made when?

        43     MS. PICOTTE-LI:  In 2007.

        44     THE COURT:  All right.  So where is this?  Is this

        45          contained in your application materials?

        46          Mr. Monk, please sit down.  You will have an

        47          opportunity to respond.






               Submissions for the defendants Ascent Real Estate and

               Michael Roach by Ms. Picotte-Li







         1     MR. MONK:  Sorry, sir.

         2     MS. PICOTTE-LI:  It's in tab 2 of Dave Plunkett's

         3          affidavit.  Sorry.  Just bear with me a moment

         4          here.  And it's exhibit Q at page ...

         5     THE COURT:  All right, so that was -- what happened on

         6          April 26th, 2007, was that the plaintiff filed a

         7          notice of intention to act in person.  Is that

         8          correct?

         9     MS. PICOTTE-LI:  That's correct.

        10     THE COURT:  And you're saying that's the last step that

        11          was taken in the action?

        12     MS. PICOTTE-LI:  Between 2007 and 2011 the plaintiff

        13          made some further communications repeating the

        14          allegations made in his claim.  He re-sent and

        15          repeated some materials that had already been

        16          disclosed.  He attended a case management

        17          conference on September 29th, 2009, before Justice

        18          Voith in respect of parallel actions.  And he

        19          advised the court at the case management

        20          conference that he intended to add this action to

        21          the other actions.

        22               The other actions have now settled, and since

        23          2011 no further steps have been taken since we

        24          contacted the plaintiff to advise that we would be

        25          bringing this application.

        26     THE COURT:  All right.  So since -- you're saying that

        27          no step has been taken since ...

        28     MS. PICOTTE-LI:  2011.

        29     THE COURT:  2011.

        30     MS. PICOTTE-LI:  Correct.

        31     THE COURT:  And the action was commenced in 2003.

        32     MS. PICOTTE-LI:  Correct.

        33     THE COURT:  All right.

        34     MS. PICOTTE-LI:  This matter has had a long history

        35          since 2003.

        36     THE COURT:  So what your affidavit says is that he

        37          hasn't taken any substantive steps since 2007 and

        38          no steps at all since 2011.

        39     MS. PICOTTE-LI:  That's correct.  This matter --

        40          pleadings were closed in this matter in 2004, and

        41          after pleadings were closed the applicants

        42          attempted to obtain the plaintiff's list of

        43          documents for some time.  They -- the applicants

        44          made demands for discovery of documents and

        45          notices to produce.  The applicants sent letters

        46          to view the plaintiff's documents.  The applicants

        47          sent e-mails, and by October 2005 the plaintiff






               Submissions for the defendants Ascent Real Estate and

               Michael Roach by Ms. Picotte-Li







         1          still had not produced the documents referred to

         2          in 831 -- page -- an unnumbered and untitled list.

         3               And finally, on October 13th, 2005, the

         4          applicants attended in person at Pendrell Place to

         5          review the plaintiff's documents.  The review

         6          indicated, among other things, that many of the

         7          documents listed did not appear in the binders and

         8          many of the documents in the binders did not

         9          appear on the list.  Following the review the

        10          applicants requested an itemized list of documents

        11          from the plaintiff.  In an e-mail dated

        12          October 31st, 2005, the plaintiff advised the

        13          applicants that he was putting together his

        14          documents in order to have them formatted and that

        15          the applicants would not hear back from him until

        16          January 2006.

        17               In February 2006 the plaintiff finally

        18          produced a list of documents and that was nearly

        19          two years after the June 5th, 2004 deadline set by

        20          Madam Justice Ballance at the case management

        21          conference.  And at that point in the spring of

        22          2006 the applicants made a number of requests for

        23          copies of the plaintiff's documents.  And the

        24          plaintiff failed to provide copies and then

        25          provided an amended list of documents on

        26          April 25th, 2006.

        27               The next day the applicants brought a motion

        28          to obtain copies of the plaintiff's listed

        29          documents, but to date the documents produced by

        30          the plaintiff are still incomplete, inaccurate or

        31          deficient.

        32               The applicants have also attempted to set

        33          down discoveries of the plaintiff.  After three

        34          appointments and over the course of two years the

        35          applicants finally examined the plaintiff on

        36          June 20th, 2006, nearly six years after the cause

        37          of action arose, over three years from the

        38          commencement of the action and two and a half

        39          years from when the plaintiff sold the unit for

        40          approximately $500 more than the purchase price.

        41               Despite verbal representations and e-mail

        42          communications by the plaintiff to the applicants

        43          between '07 and 2011 indicating that he intends to

        44          proceed with the claim, the plaintiff has not

        45          taken any substantive steps since filing the

        46          notice of intention to act in person.

        47               Prior to filing this application to dismiss






               Submissions for the defendants Ascent Real Estate and

               Michael Roach by Ms. Picotte-Li







         1          the applicants contacted Mr. Monk by telephone as

         2          a courtesy to advise him that we would be bringing

         3          this application to dismiss, and following this

         4          was when Mr. Monk filed a notice of intention to

         5          proceed.  The applicants submit that the delay is

         6          inexcusable in the circumstances.

         7               The plaintiff has had eight changes of

         8          solicitors or intentions to act in person filed.

         9     THE COURT:  Sorry, how many?

        10     MS. PICOTTE-LI:  Eight.  Oh, my mistake.  It's three --

        11          he's filed three intentions to act in person, four

        12          changes of solicitor and one notice of withdrawal

        13          by his last lawyer.  He's had four lawyers between

        14          2003 and 2007, and he has been unable to maintain

        15          any counsel to represent him.  The plaintiff has

        16          had ample opportunity to instruct counsel or to

        17          pursue his claim on his own behalf, and the

        18          plaintiff relies on steps taken in response to

        19          this application to dismiss as steps to further

        20          his action.

        21               The plaintiff has caused excessive and

        22          immoderate delay throughout the entirety of the

        23          proceeding.  And despite the applicants' best

        24          efforts to resolve the matter in a timely fashion,

        25          he has not provided any excuse for the delay or

        26          pushed this matter forward.

        27               The delay has cost serious prejudice to the

        28          applicants in presenting a defence.  The prejudice

        29          creates a substantial risk that a fair trial is

        30          not possible.  The limitation period has expired

        31          under both the old act and the current act.  The

        32          limitation period has expired even if the

        33          plaintiff were to revive his claim from the notice

        34          of intention to act in person.  The plaintiff no

        35          longer resides at Pendrell Place and has not

        36          resided there for over 10 years.  The members of

        37          the strata council have changed.  The strata unit

        38          owners have changed, and documents existing at the

        39          time which the plaintiff has referred to but have

        40          not been produced appears to be no longer

        41          available.

        42               The plaintiff has not conducted any

        43          discoveries of the applicants.  There's no record

        44          of the applicants' evidence, and whether the

        45          matter goes directly to trial without discoveries

        46          or whether the plaintiff chooses to conduct

        47          discoveries, the evidence will now be 15 years






               Submissions on own behalf by Mr. Monk








         1          from when the loss occurred.  Evidence has been

         2          lost, including witnesses on whom the applicants

         3          would have relied.  The strata president at the

         4          time no longer lives in the province.  And it's

         5          generally expected that people's memories will

         6          fade over time.

         7               In the plaintiff's proceeding against his

         8          former counsel Andrew Winstanley it was a finding

         9          of fact by Master Taylor respecting the claim that

        10          the substantive issues themselves were not that

        11          complex.  The plaintiff has had ample time to

        12          further his claim, but he has failed to do so.

        13          The plaintiff's capacity to effectively represent

        14          himself has not changed.  If the plaintiff is left

        15          on his own, there's no reason to think that six or

        16          12 months from now the case will be in any

        17          different state than it is now.

18               The fact that the claim remains outstanding

        19          is a reflection of the plaintiff's ordering of his

        20          priorities which has serious prejudice