



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Ahmed v. Canna Clinic Medicinal Society,









2019 BCCA 44




Date: 20190116

Docket: CA45263

Between:

Jutta Ahmed

Appellant

(Plaintiff)

And

Canna Clinic
Medicinal Society

Respondent

(Defendant)




Before:



The Honourable Mr. Justice Harris

The Honourable Madam Justice Stromberg-Stein

The Honourable Madam Justice Fenlon




On appeal from:  An
order of the Supreme Court of British Columbia, dated
April 6, 2018 (
Ahmed v. Cannaclinic Medicinal Society
, Vancouver Docket
S182842).

Oral Reasons for Judgment




The Appellant, appearing in person:



J. Ahmed
with M. Ahmed





Counsel for the Respondent:



A. Sodagar





Place and Date of Hearing:



Vancouver, British
  Columbia

January 16, 2019





Place and Date of Judgment:



Vancouver, British
  Columbia

January 16, 2019








Summary:

Ms. Ahmed appeals an
order dismissing her petition for judicial review of a Provincial Court
decision and awarding special costs against her. Held: appeal allowed in part.
The chambers judge did not err by exercising his discretion to dismiss Ms. Ahmeds
petition for judicial review based on her delay and the repetition of issues
raised and decided in previous court proceedings. However, the judges order
awarding special costs against Ms. Ahmed is not supported by the reasons
for judgment, and accordingly must be set aside.

[1]

FENLON J.A.
: Ms. Ahmed is self-represented, although her
husband, Mohamed Ahmed, speaks on her behalf in court proceedings as he did
today. Ms. Ahmed says that the judges decision not to allow her to
proceed with a judicial review of the Small Claims Court decision and ordering
special costs against her shows he was not exercising his discretion
reasonably, and did not understand that there is no time limit on a judicial
review.

[2]

The dispute between Ms. Ahmed and the respondent Canna Clinic
Medicinal Society (Canna Clinic) has been long and fractious. Canna Clinic
leased premises Ms. Ahmed owns on Granville Street in Vancouver. The
leases started in March and September 2014 for three-year terms. Things got off
to a rocky start immediately as the landlord understood the tenant would be
operating a clothing store when in fact it was selling marihuana, apparently
without first obtaining city permits.

[3]

Canna Clinic left the premises in July 2015 because, in its view, Ms. Ahmed
breached her obligations to provide quiet enjoyment. Ms. Ahmed commenced
two separate actions. The first was commenced in Small Claims Court. She sought
approximately $25,000 in damages for damage to the property. That action was
dismissed at a trial conference on April 19, 2017, because Ms. Ahmed had
failed to comply with orders made by the Small Claims Court to file and serve a
trial statement and to produce certain documents. On November 21, 2017, Madam
Justice Iyer of the Supreme Court of British Columbia dismissed Ms. Ahmeds
appeal from that decision. This Court declared Ms. Ahmeds notice of
appeal from Madam Justice Iyers decision a nullity in reasons indexed as 2018
BCCA 114, because there is no right of appeal to this Court from a small claims
order.

[4]

Ms. Ahmed then commenced a second action in B.C. Supreme Court,
again seeking damages for damage to the rental property left, she says, by Canna
Clinic and, in addition, $268,000 in unpaid rent to the end of the lease term. Canna
Clinic applied to dismiss the second action on the basis of cause of action
estoppel. On May 23, 2017, Mr. Justice Steeves made that order. His
decision was upheld by this Court in reasons indexed as 2018 BCCA 319. Put
simply, this Court found that Ms. Ahmed had made a strategic decision to
start in Small Claims Court and, having failed there, could not simply start
over in a different court, even if additional breaches of the lease were being
pursued.

[5]

In the meantime, before this Court heard the appeal from Mr. Justice
Steeves order, Ms. Ahmed applied to the Supreme Court for judicial review
of the April 2017 Provincial Court decision dismissing her action for $25,000
in damages. This amounted to the third time that she had attempted to litigate
the breaches of the lease she says Canna Clinic engaged in. The judge dismissed
Ms. Ahmeds petition for judicial review. Ms. Ahmed now appeals.

[6]

In my view, the judge did not make a mistake in the way he exercised his
discretion. He was aware that there is no time limit for starting a judicial
review proceeding, saying so expressly at para. 5 of his reasons for
judgment. He decided that too much time had gone by and that was a decision
open to him.

[7]

The judge also refused judicial review because the issues raised had
already been dealt with in other court proceedings and could not be challenged
again. That is the same reason this Court gave in dismissing Ms. Ahmeds
appeal to this Court last year:
Ahmed v. Canna Clinic,
2018 BCCA 319. The
judge made no error in his reasoning on this point.

[8]

I see no merit in this part of the appeal.

[9]

I turn now to Ms. Ahmeds submission that the judge made a mistake
in ordering special costs against her. I agree with that submission.

[10]

The judge considered Canna Clinics request for special costs and then
said:

[9]        THE COURT:  Mr. Ahmed, I am not able to agree
with you and I hope you can take some lesson away from this, or your wife can,
or you both can. The courts are here to serve a function, which is to do
justice, but the courts are to do justice according to law, and the legal
process in this case has to come to an end, and that is where it ought to be
now.

[10]      I normally do what I
properly can to not award special costs against people who are unrepresented,
particularly when there is a lawyer on the other side, but I am ordering
special costs here, and I am doing it in accordance with these two cases that
have been cited. In both of them, you were the plaintiff. One was decided by
Madam Justice Fisher, as she then was, and the other by Mr. Justice
Willcock, as he then was. Your insults against the courts, the court
registries, and the judges cannot be accepted, and have to be punished with a
special costs order against you.

[11]

It is clear from his reasons that the judge ordered special costs
against Mr. Ahmed, and yet the order provides that the petitioner, Ms. Ahmed,
is to pay special costs to Canna Clinic. This is a careless and troubling
mistake given that counsel obtained an order dispensing with Ms. Ahmeds
signature. Counsel in that position has a particular responsibility to submit
an order that accurately reflects the courts decision. It is also unfortunate
that the order was accepted and entered in the registry in a form that was not
consistent with the reasons.

[12]

An appeal is from the order entered, and this order is not supported by
the judges reasons for judgment and must be set aside. If the judge intended
to order that Mr. Ahmed pay special costs personally, he did not address
the considerations applicable to a costs order against a non-party. While such
an order could have been made, it appears the judge assumed Mr. Ahmed was
a party as he had been in the two previous cases to which the judge referred. In
these circumstances I would therefore set aside the order for special costs and
replace it with an order that Ms. Ahmed, as the unsuccessful party in the
court below, is to pay ordinary costs at Scale B to Canna Clinic.

[13]

As for the costs of this appeal, success has been divided. In my view,
each party should bear their own costs.

[14]

HARRIS J.A.
: I agree.

[15]

STROMBERG-STEIN J.A.
: I agree.

[16]

HARRIS J.A.
: The appeal is allowed to the extent that the order
of special costs is set aside and replaced with an order on the terms described
in Madam Justice Fenlons reasons for judgment. Each party will bear their own
costs in this Court.

[Discussion with Mr. Ahmed
re: seeking clarification]

[17]

HARRIS J.A.
: The reasons will be transcribed and made available
to you. You will then be able to understand clearly what it is we have ordered.
To summarize, we have ordered that each party will bear their own costs for
this appeal, so you do not have to pay anything in respect of that. Secondly,
insofar as the issue involving costs below from Mr. Justice Macintosh, the
order of special costs against Ms. Ahmed has been set aside. What she owes
are costs on the Party and Party Scale.

The
Honourable Madam Justice Fenlon


