Gong v. Zhang

2023 BCCA 235 Gong v. Zhang

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Gong v. Zhang, 2023 BCCA 235 Date: 20230510 Dockets: CA47895; CA48722 CA48499; CA48591 Dockets: CA47895; CA48722 Between: Quan Gong Appellant (Plaintiff/Petitioner) And Yu Yi Zhang Respondent (Defendant/Respondent) - and - Dockets: CA48499; CA48591 Between: Quan Gong Appellant (Plaintiff) And P. O'Neill Respondent (Defendant) Before: The Honourable Justice Skolrood (In Chambers) On appeal from: Orders of the Supreme Court of British Columbia, dated November 5, 2021 and November 3, 2022 (Gong v. Zhang, Vancouver Docket S218954); and July 29, 2022, September 8, 2022, October 11, 2022, October 17, 2022, November 14, 2022, and December 5, 2022 (Gong v. O'Neill, 2022 BCSC 1696 and 2022 BCSC 2119, Vancouver Docket S2110068). Oral Reasons for Judgment The Appellant, appearing in person: Q. Gong No one appearing on behalf of the Respondents. Place and Date of Hearing: Vancouver, British Columbia May 10, 2023 Place and Date of Judgment: Vancouver, British Columbia May 10, 2023 Summary: The applicant applies for no fee orders with respect to three appeals and for an order removing a fourth appeal from the inactive list. Held: Applications dismissed. The appeal in CA47895 is of a discretionary interim management decision and it has been supplanted by subsequent proceedings. It would not be appropriate nor in the interests of justice to remove

a moot appeal from the inactive list. The no fee application in CA48722 is not granted, as the appeal is frivolous and bound to fail. The no fee applications in CA48499 and CA48591 are not granted as the appeals are bound to fail and vexatious. SKOLROOD J.A.: [1] The appellant applicant, Quan Gong, has four applications before the Court: a) Three of the applications, in file numbers CA48499, CA48722, and CA48591, are for orders pursuant to R. 85 of the Court of Appeal Rules, B.C. Reg. 120/2022 that no fees are payable; and b) The fourth application, in CA47895, is for an order removing the appeal from the inactive list. [2] While there are four appeal files, they involve essentially two disputes. Appeal file numbers CA47895 and CA48722 arise out of a dispute between Ms. Gong and her former landlord, Ms. Zhang. Appeal file numbers CA48591 and CA48499 arise out of claims brought by Ms. Gong against Mr. O'Neill, who acted as arbitrator for the Residential Tenancy Branch ("RTB") in Ms. Gong's dispute with Ms. Zhang. Appeals CA47895 and CA48722 [3] I will deal first with the appeals involving Ms. Zhang. Overview [4] Ms. Gong has advanced numerous proceedings before this court and the court below in relation to a residential tenancy dispute. Today, she seeks an order removing her appeal from the inactive appeal list in CA47895, and an order for no fees in CA48722. [5] For reasons

which will become apparent, the two applications relate to the same substantive decision by Justice Warren (the "chambers judge") on November 13, 2022. Ms. Gong's request to remove her appeal from the inactive list is moot because it is an appeal of an interim management direction which has since been supplanted by the decision of the chambers judge. Background [6] Ms. Gong entered into a tenancy agreement with the respondent, Ms. Zhang (the "landlord") in October 2019. Ms. Gong rented a unit on the lower floor of a detached house, and the landlord lived upstairs. [7] In April 2021, the landlord issued a one-month notice to end Ms. Gong's tenancy. A hearing took place before RTB Arbitrator O'Neill in September 2021. At that hearing, the landlord provided examples of how Ms. Gong's actions in the apartment endangered others in the building on multiple occasions and resulted in, among other effects, fire damage to the unit. [8] Ms. Gong requested a review of that decision, which was dismissed by Arbitrator Wilson in October 2021. A bailiff enforced a writ of possession of the unit in late-October 2021, and since then, Ms. Gong has not resided in the unit. [9] Ms. Gong applied to the B.C. Supreme Court for judicial review of Arbitrator Wilson's decision. That petition came before Justice Sharma on November 4, 2021, though due to deficient materials in the record and Ms. Zhang not

appearing, that hearing was adjourned to December 13, 2021. [10] On November 15, 2021, Ms. Gong filed a notice of appeal of Sharma J.'s adjournment decision. This is the appeal in CA47895. [11] On December 6, 2021, Ms. Gong made an application in the Court of Appeal for no fee status in relation to that appeal. Justice Grauer noted that Ms. Gong required leave to appeal Sharma J.'s decision, which was a discretionary interim management decision. He declined to convert Ms. Gong's notice of appeal into an application for leave to appeal given that, by the time the appeal would be heard, the underlying petition scheduled for one week later would have been concluded. The no fee application was denied. [12] The judicial review was eventually heard by the chambers judge on November 3, 2022. At that hearing, Ms. Gong alleged the RTB had not considered her evidence or given her an opportunity to speak. [13] In oral reasons for judgment delivered on the same day, the chambers judge dismissed the petition as serving "no practical purpose": at para.

32. Ms. Gong was no longer residing in the unit and, even if she were successful in setting aside the RTB decisions, there was no tenancy agreement in place and Ms. Gong had not sought other relief. The chambers judge nonetheless went on to consider the application on its merits, and found there was no unfairness to Ms. Gong and the conclusion reached by the RTB was not patently unreasonable: at para. 44. [14] Ms. Gong filed a notice of appeal of that decision on December 2, 2022. This is the appeal in CA48722. [15] On November 16, 2022, the Court of Appeal Registry wrote to Ms. Gong advising that, pursuant to R. 50(1) of the Court of Appeal Rules, her appeal of Sharma J.'s adjournment decision in CA47895 had been placed on the inactive appeal list. [16] She now applies, pursuant to R. 50(3), to have her appeal removed from that list to avoid the appeal being dismissed as abandoned (which, without further action, would occur on May 16, 2023, 180 days after being placed on the inactive list). [17] As I have indicated, and as Grauer J.A. explained, Sharma J.'s decision was an interim adjournment decision that has since been supplanted by subsequent proceedings. There is no point in removing that appeal from the inactive list now. It is clear that the substance of Ms. Gong's appeal, as it relates to the tenancy dispute with Ms. Zhang, is dealt with in CA48722 (again, the appeal of Warren J.'s decision). While I tried to explain this to Ms. Gong, it was apparent that she views Sharma J.'s decision as essentially tainting all of the subsequent proceedings. However, in the circumstances, it is not appropriate nor in the interests of justice to remove a moot appeal from the inactive list: British Columbia (Attorney General) v. Koffman Estate, 2019 BCCA 444 at para.

24. Accordingly, I would deny that application, as a result of which the appeal will be dismissed as abandoned under R. 51. [18] I will now consider Ms. Gong's no fee application in relation to the remaining appeal in CA48722. Legal Framework [19] Rule 85(4) of the Court of Appeal Rules provides a justice of the Court with the power to make an order that no fees are payable in respect of an appeal where the appeal is not (i) bound to fail, (ii) scandalous, frivolous or vexatious, or (iii) an abuse of process, and the person's payment of court fees under R. 84 would cause undue hardship. [20] The "lacks merit" standard from the former equivalent Rule was "not high" and the current "bound to fail" standard is even lower: Harrison v. Law Society of British Columbia, 2022 BCCA 316 at para. 5 (Chambers). Notwithstanding the lower standard, Justice Willcock in Harrison dismissed the application on the basis that the appellant had failed to establish that the appeal was not bound to fail (at para. 21). Discussion [21] I am satisfied on the basis of information provided by Ms. Gong that she meets the criteria for "undue hardship". Accordingly, the real issue is whether Ms. Gong's appeal is bound to fail, scandalous, frivolous, vexations, or an abuse of the court's process. [22] I would say Ms. Gong's intended grounds of appeal are difficult to understand. In my view, her contentions

can be grouped into three categories. I will attempt to summarize the key points she raises and indicate whether each ground is bound to fail: (a) The allegation that the chambers judge wrongly held that the judicial review of the Notice to End Tenancy was moot [23] In her reasons, the chambers judge adopted the response filed by the Director of the Residential Tenancy Branch: [33] I adopt the following from the response that was filed by the Director: 24. In determining whether to exercise discretion to grant a remedy on judicial review, the court may consider whether the application has become moot or would serve no useful purpose. [Citing Yang v. Real Estate Council of British Columbia, 2019 BCCA 43 at para 10-12].

25. In this case, Ms. Gong [the petitioner] has not resided in the residential unit for almost one year. There may now be a different tenant living there. Should the matter be returned to the RTB for a new hearing, the issue would be whether the Notice to End Tenancy should be set aside.

26. If the notice was set aside, [the petitioner]'s original tenancy would be continued despite her not currently living in the unit. If the notice was upheld, the landlord would be granted an order of possession for a unit that is not in [her] possession. [24] Ms. Gong says this analysis targets the wrong question. In her view, the chambers judge should have considered whether Ms. Gong was entitled to return to the unit. [25] I do not see any merit to this ground of appeal. The fact of the matter is that Ms. Gong sought no other relief in her petition, other than to have the Notice to End Tenancy set aside. However, at the time of the hearing, she was no longer living in the unit. She sought no monetary compensation for her eviction, for example, nor any other order that she be permitted to return to the unit if she were successful, if such an order were even available to her. The review served no practical purpose and the chambers judge acknowledged as much in her reasons: at para. 32. (b) The allegation that the chambers judge wrongly rejected the appellant's evidence that Arbitrator O'Neill denied her the opportunity to speak at the September RTB hearing [26] Ms. Gong claimed she had not been given the opportunity to speak at the hearing before Arbitrator O'Neill and that the hearing was therefore procedurally unfair. On review, Arbitrator Wilson explained that Ms. Gong had

failed to identify herself at the commencement of the telephone hearing, and remained silent until the end of the proceedings. Arbitrator Wilson presumed the new voice on the call was Ms. Gong, who said "Why can't I speak"? Arbitrator Wilson noted she was given the opportunity to speak and participate, but did not do so thereafter. Ms. Gong essentially contends these are lies, reiterates that she was not given the chance to speak, and says that the chambers judge's reliance on these lies makes the decision unjustifiable. [27] I see no merit to this ground of appeal. As the chambers judge noted, there was no evidence before her suggesting Ms. Gong was denied the opportunity to participate. She also noted there is a "strong presumption that an administrative decision maker will act with impartiality and integrity": at para.

39. Ms. Gong had plainly not met her onus to show that presumption was rebutted. In the chambers judge's words, "the record [did] not come close to establishing" that either she was denied the right to participate, or that Arbitrator O'Neill lied about what happened: at para. 39. (c) The allegation that the chambers judge was wrong to reject the appellant's evidence about the fire incidents at the unit [28] Ms. Gong contends that Arbitrator O'Neill and by extension, the chambers judge, "entirely accepted" evidence of various fire accidents that the respondent's lawyer presented, and was wrong to do so. [29] As the judge noted in her reasons, Arbitrator O'Neill understood Ms. Gong's own position on the April 2021 fire incident not to be that the incident did not occur, but rather that she should not be evicted for it because she felt it was due to the landlord not installing a smoke detector: at para.

41. She explained that Ms. Gong's evidence about another fire incident in May 2021 was not considered by Arbitrator O'Neill because the Notice to End Tenancy was issued prior to that incident such that the incident had no relevance to it. Accordingly, the chambers judge concluded: [44] It simply cannot be said that the arbitrator failed to consider the case that was put forward by the tenant. The decision is not patently unreasonable and the process was not unfair. For all those reasons, in addition to the application being moot, the application is dismissed. [30] Ms. Gong raises a handful of other grounds of appeal in her written and oral submissions. Broadly, she appears to contend that the chambers judge wrongfully dismissed relevant evidence and relied on unclear and indeed falsified evidence with respect to the RTB hearings. She also makes a number of serious allegations to the effect that registry staff at the Court of Appeal have refused to allow her to file her documents and are responsible in some way for her eviction. With respect, I see no merit in these submissions. [31] In my view, and for the reasons I have explained, I see no substance to any of Ms. Gong's intended grounds of appeal. I conclude that they are frivolous and bound to fail. [32] A no fee order is intended to ensure appellants in arguably meritorious cases are not denied access to the courts simply

because they do not have the financial resources to carry on their litigation: Trautmann v. Baker, [1997] B.C.J. No. 452 at para. 4 (C.A. Chambers). Unfortunately, despite Ms. Gong's difficult financial circumstances, I cannot say this is an "arguably meritorious appeal" such that a no fee order should be granted. [33] Accordingly, I would dismiss Ms. Gong's no fee application in relation to CA48722. Appeals CA48591 and CA48499 [34] I turn now to the appeals involving Mr. O'Neill. Similarly, in these matters, Ms. Gong applies for orders that no fees be payable. Background [35] The underlying appeals are regarding the orders of several Supreme Court justices. Appeal file number CA48499 is an appeal of an order of Justice Wilkinson, dated July 29, 2022, in which she dismissed Ms. Gong's application to set aside the order of Master Robertson for failure to adhere to the procedural requirements of the Supreme Court Civil Rules, B.C. Reg 168/2009. The appeal is essentially moot. Appeal file number CA48591 are appeals from five decisions made by four Supreme Court judges. Facts [36] The relevant facts regarding CA48499 that were before Justice Horsman in 2022 BCCA 359 are as follows: Background [2] This appeal arises out of a civil action that Ms. Gong filed against the defendant, P. O'Neill. Mr. O'Neill acted as an arbitrator for the Residential Tenancy Branch. He was the arbitrator

on a residential tenancy dispute between Ms. Gong and her landlord. Ms. Gong is dissatisfied with Mr. O'Neill's decisions. In addition to filing a civil action against him, Ms. Gong also filed a petition for judicial review of his decisions. [3] In February 2022, Mr. O'Neill filed an application seeking to have the civil action against him struck on the basis that Ms. Gong's pleadings does not disclose a claim, and is frivolous, vexatious, and an abuse of the court process (the "Dismissal Application"). The Dismissal Application was originally scheduled for February 23, 2022. The hearing date was adjourned on a number of occasions due, at least in part, to Ms. Gong's refusal to provide her availability. [4] The parties appeared before Master Robertson on June 7, 2022, on Ms. Gong's application for an order that the date for the hearing of the Dismissal Application be adjourned once again. By this point, Ms. Gong had not filed response materials to the Dismissal Application. Master Robertson ordered that the Dismissal Application be adjourned to August 30, 2022, on a peremptory basis, and that Ms. Gong provide response materials by August 2, 2022. [5] On July 15, 2022, Ms. Gong filed a notice of application seeking, among other things, an order setting aside Master Robertson's order of June 7, 2022, and an order prohibiting certain staff at the law firm representing Mr. O'Neill

from communicating with Ms. Gong. Ms. Gong filed further notices of application on July 18, 2022, and July 25, 2022, seeking the same or similar orders. [6] On July 19, 2022, Ms. Gong filed a notice of appeal of Master Robertson's order. The appeal was not filed within 14 days of Master Robertson's order, as required by Rule 23-6(8.1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009. The chambers judgment [7] On July 29, 2022, the parties appeared before the chambers judge on Ms. Gong's application to set aside Master Robertson's order. Although not entirely clear from the record, it appears that the matter scheduled for hearing on that day was Ms. Gong's application of July 15, 2022, or possibly her duplicative application of July 18, 2022. Ms. Gong's primary argument before the chambers judge was that Master Robertson's order gave her insufficient time to prepare for an August hearing date. [8] The chambers judge characterized Ms. Gong's application to set aside Master Robertson's order as "fundamentally an appeal of Master Robertson's order", which could not be brought by way of notice of application: Chambers decision at para.

8. In noting that Ms. Gong had, in fact, filed a notice of appeal, the chambers judge stated: [8] The plaintiff has filed a notice of appeal, although late. She will need leave of the court to allow her appeal to be heard. No transcript is before me, nor is there a statement of argument on her application. Even if I were inclined to convert today's notice of application to an appeal, the materials before me are insufficient and so I could not decide the appeal on that basis. [9] Accordingly, the chambers judge dismissed Ms. Gong's application to set aside Master Robertson's order on procedural grounds, while expressly noting that "her notice of appeal can go ahead": Chambers decision at para.

9. The chambers judge further held there was no basis in law for the order sought prohibiting employees of the law firm representing Mr. O'Neill from communicating with Ms. Gong. Therefore, she dismissed the entirety of Ms. Gong's application: Chambers decision at paras. 10-11. Events after the chambers judgment [10] There are events that occurred after the chambers judgment that are relevant to the present application. [11] On August 30, 2022, the date set by Master Robertson's order for the hearing of the Dismissal Application, Ms. Gong filed another application seeking an order prohibiting certain employees of the law firm representing Mr. O'Neill from communicating with her, and also prohibiting the service of documents on her by email. [12] The parties attended judges' chambers for the Dismissal Application on August 30, 2022. However, the application was not heard due to insufficient court time. The judge presiding in chambers ordered that the Dismissal Application and Ms. Gong's August 30, 2022 application both be set for hearing for one full day on September 12, 2022, on a peremptory basis. [13] The applications were also not heard on September 12, 2022, due to insufficient court time. They were rescheduled for October 12, 2022. [14] There is a dispute between the parties as to how the October 12, 2022 date came to be set. I do not need to resolve that dispute for the

purpose of this application. [15] The parties did appear before Forth J. on October 12, 2022. Counsel for Mr. O'Neill advises that Forth J. heard Mr. O'Neill's submissions on the Dismissal Application, and then adjourned the application to complete on November 15, 2022 to provide Ms. Gong time to prepare a response. I understand that Ms. Gong may take issue with this description of what occurred on October 12, 2022. However, she agrees that the parties are scheduled to appear before Forth J. on November 15, 2022. [37] The facts continue from Justice Bennett's oral reasons, dated January 11, 2023: [4] On October 18, 2022, Justice Horsman found that "the factors relevant to the assessment of an application for leave to appeal strongly militate against the grant of leave in this case": CA Chambers at para. 21 (emphasis added). She concluded that "it would not be in the interests of justice to grant Ms. Gong leave to bring an appeal that has no merit, no practical utility, and can only serve to unduly hinder the progress of the action": CA Chambers at para.

27. She therefore dismissed Ms. Gong's application for leave to appeal. Events after the chambers hearing before Justice Horsman [5] On October 25, 2022, Ms. Gong filed and served an application to vary the order of Justice Horsman. On the same day, counsel for Mr. O'Neill advised Ms. Gong that she had not served her application book and that he would not be agreeable to an extension. [6] On October 28, 2022, Ms. Gong further requested consent from Mr. O'Neill for an extension of time to file her application book in support of her application to vary the order. Mr. O'Neill's counsel denied that request promptly. [7] On November 1, 2022, Ms. Gong filed this application, requesting an extension of time to submit her application book. Along with her application, she submitted an affidavit stating that she requires more time to file her application book because she has still been unable to find a lawyer, she has needed to dedicate time to her judicial review, and because her health has been weakened. [8] For this application, Ms. Gong filed a memorandum of argument, an affidavit dated November 1, 2022, and an affidavit dated November 18, 2022. [9] A subsequent order of Justice Abrioux dated November 29, 2022 prevents prevented Ms. Gong from filing any further material on this application. She did seek to hand up a large affidavit this morning, which I refused, based on Justice

Abrioux's order. I did, however, permit her to hand up her written argument, which I have read. In addition, I have also reviewed an unsworn affidavit that relates to her health condition. [10] Since the time of the dismissal of the leave application, Justice Forth issued her reasons on December 5, 2022, dismissing the case against Mr. O'Neill. Ms. Gong has filed an appeal as of right in that case and has recently obtained an extension of time to file her material. That appeal is still live before this Court. [38] Justice Bennett ultimately dismissed Ms. Gong's application to extend time, which she found brought an end to the appeal: at para.

22. On January 18, 2023, Ms. Gong applied to have this decision varied by a division of this Court. This, again, is CA48499. [39] In CA48591, Ms. Gong sought an order for the extension of time to file her appeal record in that matter. Justice Frankel dismissed Ms. Gong's applications with respect to four of the five orders, in reasons indexed at 2023 BCCA 27: Baker J. (September 8, 2022), Gropper J. (October 11, 2022), Tammen J. (October 17, 2022), and Forth J. (November 15, 2022). However, he granted Ms. Gong's request for an extension to file the appeal record in relation to the order of Forth J. dated December 5, 2022. On January 13, 2023, Ms. Gong applied to have this decision varied by a division of this Court. That application has not yet been heard. [40] The reasons of Forth J., indexed at 2022 BCSC 2119, are what is at issue in CA48591. I will not repeat the details of those proceedings, as they are summarized in detail by Forth J. [41] Briefly, the application before Forth J. was brought by Mr. O'Neill, pursuant to R. 9-5 of the Supreme Court Civil Rules, to have Ms. Gong's notice of civil claim struck as disclosing no reasonable cause of action (R. 9-5(1)(a)), as being unnecessary and vexatious (R. 9-5(1)(b)), and as being an abuse of process (R. 9-5(1)(d). Justice Forth concluded that it was plain and obvious that the claims against Mr. O'Neill offended all three Rules: at para.

90. She noted that it was unclear what discrimination it is that Ms. Gong suffered at the hands of Mr. O'Neill as alleged, and it was unclear what conspiracy was alleged to have taken place between Mr. O'Neill and Ms. Zhang: at paras. 93-94. She additionally found that Ms. Gong failed to provide any particulars as to what defamatory statements were made by Mr. O'Neill: at para. 97. [42] Justice Forth then considered whether Ms. Gong should be permitted to further amend her pleadings. She noted that where there are fundamental deficiencies in the pleadings, the pleadings should be struck rather than allowing an amendment: at para. 106, citing H.M.B. Holdings Limited v. Replay Resorts Inc., 2019 BCSC 1138 at paras. 4, 57-65, aff'd 2021 BCCA 142. She therefore found that the appropriate remedy was to strike the pleadings and dismiss the action against Mr. O'Neill: at para. 107. [43] Justice Forth finally considered, in the alternative, whether the claim should be dismissed under R. 9-6(5)(b), and concluded that Ms. Gong had no genuine issue respecting the alleged claims for perjury, discrimination, and conspiracy, and that the defence of absolute privilege operated to protect Mr. O'Neill from any claim of defamation: at para.

122. Justice Forth was therefore satisfied that there was no genuine issue for trial and dismissed the claim under R. 9-6(5)(a). Legal Framework [44] I have already addressed the legal framework for the granting of a no fee order under R. 85 at paras. 19-20 above, and will not repeat that discussion here. Discussion [45] It is clear that Ms. Gong's appeals are bound to fail. [46] In her 2022 reasons, Horsman J.A. found that "[t]here is no merit to this appeal" and that "there is no practical utility to the appeal in any event": at para. 25 (emphasis added). [47] In her 2023 reasons, Bennett J.A. declined to grant Ms. Gong an extension of time, as it was "not in the interests of justice to permit a case to go forward that has zero chance of success, resulting in delays in the trial court and a waste of appellate resources": at para. 20 (emphasis added). [48] With respect to the appeal of Forth J.'s order dismissing Ms. Gong's action, Ms. Gong alleges the judge erred in, among other things: fabricating facts, conducting hearings that violated and damaged the appellant's right to life and health, falsifying factors and cheating, and maliciously imposing vicious law. Respectfully, Ms. Gong has failed to identify any errors in law or palpable and overriding errors of fact. I see no prospect of a division of this Court overturning the decision of Forth J. and I would also find that

Ms. Gong's appeals are vexatious. [49] In her application before Bennett J.A., Ms. Gong alleged that Mr. O'Neil is "a professional judicial staff performing as an arbitrator at the RTB" who "uses his knowledge, position, and privilege working with certain court [staff] from the RTB, the Vancouver Supreme Court, and Court of Appeal" to "keep repeating the incorrect information to strengthen [these] laws and rules." She alleged that Mr. O'Neill is "pushing the procedures in front of some specific justices to support [him]" and she made allegations about the "dirty Vancouver [judicial] society": at para.

18. Ms. Gong made allegations against Horsman J.A., stating that her order had "significant wrong information, or lies" and told Bennett J.A. in her oral submissions that judges lie: at para.

21. This application is yet another means by which Ms. Gong is attempting to carry out vexatious proceedings. Her appeals are an abuse of court resources and should not be entertained by waiving the fee requirement. [50] Accordingly, I would dismiss the no fee applications. Disposition [51] In summary, I would dismiss Ms. Gong's application to remove CA47895 from the inactive list and dismiss her three no fee applications in CA48499, CA48722, and CA48591. "The Honourable Justice Skolrood"