Gonzalez v. British Columbia (Attorney General)

2019 BCCA 88 Gonzalez v. British Columbia (Attorney General)

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Gonzalez v. British Columbia (Attorney General), 2019 BCCA 88 Date: 20190308 Docket: CA45436 Between: Roberto Orellana Gonzalez Appellant (Plaintiff) And The Attorney General of British Columbia Respondent (Defendant) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Bennett The Honourable Mr. Justice Willcock On appeal from: An order of the British Columbia Court of Appeal, dated November 7, 2018 (Gonzalez v. British Columbia (Attorney General), 2018 BCCA 421, Vancouver Docket CA45436). The Appellant, Appearing in Person: R.O. Gonzalez Counsel for the Respondent: M. Butler Place and Date of Hearing: Vancouver, British Columbia February 5, 2019 Place and Date of Judgment: Vancouver, British Columbia March 8, 2019 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Madam Justice Saunders The Honourable Mr. Justice Willcock Summary: Application to vary or discharge an order of this Court. The chambers judge dismissed a notice of application for leave to appeal, despite finding that no leave was required, on the grounds that the proposed appeal was doomed to fail. In addition, the judge found the applicant to be a vexatious litigant and declined to add an additional party to the action. Held: Application allowed in part. The applicant has an appeal as of right, and the

chambers judge erred in disregarding the applicable practice directive and failing to convert the notice of application for leave to appeal into a notice of appeal. The judge did not err, however, in finding the applicant to be a vexatious litigant and in declining to add the additional party to the action. Reasons for Judgment of the Honourable Madam Justice Bennett: [1] In 2014, Mr. Gonzalez was found to be a vexatious litigant in the British Columbia Supreme Court and, as such, requires leave of that court to bring an action. He brought an application to launch a new civil claim in that court, but was refused leave. He filed an application for leave to appeal from that order in this Court. The matter came before the chambers judge, who found that leave was not required. The chambers judge refused, however, to convert the application into a notice of appeal or grant Mr. Gonzalez an extension of time in which to bring his appeal. The order, made November 7, 2018, does not address the extension and says only that the chambers judge refused to grant leave to appeal. The judge also dismissed an application to add a party, the Workers' Compensation Board, to the notice of application for leave to appeal. Finally, he declared Mr. Gonzalez a vexatious litigant in this Court. [2] Mr. Gonzalez asks us to review that order. [3] I would allow the review to the extent of setting aside

the order dismissing the application for leave to appeal, as leave was not required. Additionally, an extension of time was not required. I would dismiss the other aspects of the review. I would order that the notice of application for leave to appeal stand as a notice of appeal and extend the time to file and serve the appeal record to 60 days from today. The remaining filings will be in accordance with the Court of Appeal Rules.

BACKGROUND [4] The matter has a long history of litigation. The key details are as follows: Mr. Gonzalez suffered a serious injury on September 18, 1995, when he fell from a ladder while working as a roofer. He had been employed as a roofer from time to time after immigrating to Canada from El Salvador in 1988. In El Salvador, he had been employed as a high school teacher, but his credentials were not recognized in Canada and he was unable to find employment here in that field. [5] After his injury, Mr. Gonzalez embarked on a lengthy claims process with the Workers' Compensation Board, comprising 24 hearings over 14 years. These culminated in an award of a 100% loss of earnings pension payable for life, retroactive to the date of the accident and adjusted annually for inflation. [6] Mr. Gonzalez was not content with that award. He believes that he has been denied what he is entitled to in law. In his claims against the Workers' Compensation Board, Her Majesty the Queen and now the Attorney General of British Columbia, he has sought a range of monetary remedies, including (1) non-pecuniary damages; (2) damages for past and future loss of income earning capacity, taking into account, among other things, his teaching experience; (3) past and future care costs; (4) special damages; (5) legal fees; (6) aggravated and punitive damages; (7) damages for breach of Charter rights; and

(8) damages for injury to his dignity, feelings and self-esteem. He now seeks to find the Attorney General liable on the basis of vicarious liability. [7] Mr. Gonzalez's first attempt at securing relief through the courts was a petition for judicial review, which challenged the decisions of the Workers' Compensation Board and the Workers' Compensation Appeal Tribunal. That petition was heard by Madam Justice Kloegman in March 2010. The respondents were the Workers' Compensation Board and the Workers' Compensation Appeal Tribunal. In Reasons for Judgment indexed at 2010 BCSC 476, Kloegman J. noted as follows: [5] The petitioner has pursued avenues of appeal within the Board hierarchy 24 times in 14 years. In April 2009, he brought this Petition for judicial review seeking, among other things, to set aside Workers' Compensation Appeal Division (the "Appeal Division") decision number 99-0294 dated February 17, 1999, and the Appeal Division decision number 2003-0521 dated April 8, 2003. [6] The Petition also seeks orders for compensation for non-pecuniary damages, past and future income loss, future care costs, legal fees and costs, aggravated damages, compensation for injured dignity, punitive damages and special costs. I explained to Mr. Gonzalez, who was representing himself, that these latter claims for relief involved remedies not available to him under the Judicial Review

Procedures Act, R.S.B.C.1996, c. 241, and that I would only consider his Petition to set aside the February 1999 and April 2003 decisions of the Appeal Division. If his arguments were successful with respect to setting aside those two decisions, they could be remitted by me back to the Board or the Workers' Compensation Appeal Tribunal ("WCAT") with directions that might assist in the manner in which the matter is reviewed . [8] Justice Kloegman ultimately dismissed the petition, stating: [31] Both the subject decisions of the Appeal Division appear to have been the product of due consideration and the logic of their reasoning appears justifiable, transparent and intelligible. It was open to these Appeal Division panels to reach the conclusions that they did, and I cannot find grounds to interfere with their decision making process. [32] Thus Mr. Gonzalez's Petition is dismissed in its entirety for the reasons set out above. [9] Mr. Gonzalez appealed Kloegman J.'s decision. On April 27, 2010, he was refused indigent status by Mr. Justice Groberman: Gonzalez v. British Columbia (Workers' Compensation Board) (17 April 2010), Vancouver CA38059 (B.C.C.A.). No further steps were taken with respect to that appeal until much later, as discussed below. [10] Next, Mr. Gonzalez commenced an action against the Workers' Compensation Board of British Columbia and the Workers' Compensation

Appeal Tribunal. Mr. Justice Myers dismissed the action in Reasons for Judgment indexed at 2011 BCSC 977. In doing so, he noted the following: [5] This lawsuit was commenced on May 28, 2010. It is difficult to construe precisely what causes of action are alleged, but it claims damages as a result of the various determinations of the WCB and WCAT. It also claims damages resulting from discrimination and Charter breaches. It is apparent from the [statement] of claim and Mr. [Gonzalez's] lengthy written and oral submissions that his main complaint is that his disability pension should have been based on a teacher's salary rather than his earnings as a roofer. He is also generally dissatisfied with and disaffected by the workers' compensation system as a whole. [11] Citing s. 96 of the Workers Compensation Act, R.S.B.C. 1996, c. 492, and s. 56 of the Administrative Tribunals Act, S.B.C. 2004, c. 45, Myers J. found that the law prohibited claims for damages against the Workers' Compensation Board and the Workers' Compensation Appeal Tribunal. He concluded as follows: [9] Insofar as any allegations of bad faith, discrimination and Charter breaches are concerned, whether against the WCAT or the WCB, these are bald assertions without any factual basis being plead. [10] Any issues of lack of jurisdiction were the subject of the judicial review application dismissed by Kloegman J. [11] I

therefore conclude that it is plain and obvious that the statement of claim does not disclose a cause of action. Further, any issues that were or could have been dealt with in the judicial review application are res judicata. The duplication of them in the current action is an abuse of process. [12] It follows that the action is dismissed with costs to the defendants. [12] Mr. Gonzalez appealed that judgment and applied for indigent status. Mr. Justice Low dismissed that application on the grounds that there was no merit to the appeal: Gonzalez v. British Columbia (Workers' Compensation Board) (26 August 2011), Vancouver CA39268 (B.C.C.A.). [13] Mr. Gonzalez later sought an extension of time for the filing and serving of his factum and appeal book. That application was dismissed by Madam Justice Huddart on the same basis: 2011 BCCA 543. [14] Mr. Gonzalez sought review of Huddart J.A.'s decision by a division of the Court. The decision was upheld in reasons indexed as 2012 BCCA 97, in which Madam Justice Neilson, writing for the Court, said this: [13] My review of the merits of his claim leads inevitably to the same conclusion as that reached by Huddart J.A., Low J.A., and Myers J. Mr. Gonzalez has no possibility of succeeding in a claim to recover common law damages for injuries suffered in the course of employment that clearly fall within the scope of the Workers Compensation

Act. [14] Mr. Gonzalez's present litigation appears to stem from a fundamental misunderstanding of the history, role, and purpose of the benefits available under the Workers Compensation Act. [15] Justice Neilson found, after reviewing s. 96 of the Workers Compensation Act: [16] That provision, or one similar to it, has been in place throughout Mr. Gonzalez's dealings with the respondents. Thus, Mr. Gonzalez cannot bring an action against the respondents. [17] As Mr. Justice Myers stated, judicial review was the only recourse open to Mr. Gonzalez if he wished to review decisions made by the respondents and their predecessors. Mr. Gonzalez did petition for judicial review, his petition was dismissed, and he did not pursue his appeal of that decision. [18] Mr. Justice Myers properly found that an action against the respondents cannot succeed. There is no basis in law or fact on which this Court would be justified in overturning that decision. Thus, there is no point in permitting Mr. Gonzalez to pursue his appeal. [16] Mr. Gonzalez applied to the Supreme Court of Canada for leave to appeal from that decision and his application was dismissed: [2012] S.C.C.A. No. 206. [17] Mr. Gonzalez filed another action in February 2014, but it was dismissed as an abuse of process by Mr. Justice Grauer, who also found Mr. Gonzalez to be a vexatious litigant: 2014 BCSC 2601. Mr. Gonzalez applied

for leave to appeal from that decision. Madam Justice Garson, in chambers, found that leave was not required, but reasoned that Mr. Gonzalez required an extension as he did not file a notice of appeal as required by the practice directive in place at the time: Gonzalez v. British Columbia (19 September 2014), Vancouver CA041990 (B.C.C.A.). She refused, however, to grant the extension. Mr. Gonzalez then applied to a division of this Court for review, but that application was also dismissed: 2014 BCCA 468. A further application for leave to appeal to the Supreme Court of Canada was dismissed on April 23, 2015: [2015] S.C.C.A. No. 21. [18] Mr. Gonzalez attempted to reinstate an appeal from the April 9, 2010 order of Kloegman J. noted above. His application was dismissed by Mr. Justice Tysoe on May 25, 2016: Gonzalez v. British Columbia (Workers' Compensation Board) (25 May 2016), Vancouver CA38059 (B.C.C.A.). This Court upheld that decision on review: 2016 BCCA 394. Mr. Gonzalez's application for leave to appeal to the Supreme Court of Canada was dismissed on March 23, 2017: [2016] S.C.C.A. No. 528. [19] As noted above, the case before us involves Mr. Gonzalez bringing a fresh application for leave to file a notice of civil claim against the Workers' Compensation Board and the Attorney General of British Columbia. The application was dismissed on June 14, 2018 by Mr. Justice

Saunders, who held that the notice disclosed no cause of action and represented a collateral attack on the original decision of the Board: Gonzalez v. Workers' Compensation Board (New Work Safe) of B.C. (14 June 2018), Vancouver S140781 (B.C.S.C.). Application before the Chambers Judge [20] Mr. Gonzalez sought leave of this Court to appeal Saunders J.'s order. His notice of appeal only named the Attorney General of British Columbia in the style of cause. The chambers judge found that the proposed appeal did not require leave, but noted that Mr. Gonzalez had not filed a notice of appeal as needed to commence an appeal as of right: 2018 BCCA 421. He reasoned, accordingly, that Mr. Gonzalez would either need to file a fresh notice of appeal, which would require a time extension, or else apply to have his notice of application for leave to appeal converted into a notice of appeal. He declined to grant Mr. Gonzalez an extension of time on the basis that the proposed appeal, as a collateral attack on matters already conclusively decided, was doomed to fail. He was also of the view that he had discretion whether to convert the notice of application for leave to appeal into a notice of appeal, but declined to order the conversion -- again, on the basis that the appeal lacks merit. [21] He also dismissed Mr. Gonzalez's application to amend the notice of application for leave to appeal to add the Workers' Compensation Board as a party. [22] Finally, he granted the Attorney General's cross-application to have Mr. Gonzalez declared a vexatious litigant. In his view, Mr. Gonzalez met the applicable threshold, since he had persisted in his challenges against the Board in the face of multiple findings by both single judges and divisions of this Court that these challenges lack merit.

DISCUSSION [23] A review hearing is not a rehearing of the original application: Haldorson v. Coquitlam (City), 2000 BCCA 672 at para.

7. This Court should only interfere with an order of a single judge in chambers when the judge erred in law, erred in principle or misconceived the facts: Haldorson at para. 7; Pacifica Mortgage Investment Corporation v. Laus Holdings Ltd., 2011 BCCA 459 at para. 23. [24] Mr. Gonzalez submits that the chambers judge committed several errors that warrant intervention, including: · failing to recognize the "broad" and "ample" relevance of the proposed appeal; · failing to view the Attorney General as vicariously liable for various wrongs allegedly committed by the Board; and · failing to exercise "judicial independence" and to discharge his "duty to do justice" and ensure that "retroactive justice is done". [25] The Attorney General, in response, contends that the chambers judge properly exercised his discretion in both denying Mr. Gonzalez's application and making the vexatious litigant order. The Attorney General says that Mr. Gonzalez has failed to present any persuasive argument that the chambers judge so erred. The Attorney General conceded during the oral hearing that Mr. Gonzalez did not require an extension of time. [26] I would allow the review application on this ground. In my view, where an applicant is entitled to bring an appeal as of right but has erroneously filed a notice of application for leave to appeal, a single judge cannot defeat the appeal through an

examination of its merits. On the grounds that Mr. Gonzalez's appeal was "doomed to fail", the chambers judge both (1) refused to convert, nunc pro tunc, Mr. Gonzalez's notice of application for leave to appeal into a notice of appeal and (2) considered but rejected an extension of time in which to bring the appeal. In treating the merits of the appeal as a basis for refusing to convert the leave application, the chambers judge committed an error in principle and was led unnecessarily into a discussion of whether Mr. Gonzalez warranted an extension of time. [27] It should be noted that the chambers judge's decision seems to accord with the determination by this Court of the applications arising from Grauer J.'s 2014 order, referred to above. Since then, however, a new practice directive has come into force. In my view, the reasoning of the Court in 2014 no longer applies in light of this new directive. [28] The former practice directive, which was in place in 2014, stated: Where the party bringing the appeal is uncertain whether leave is required, both a Notice of Appeal and a Notice of Application for Leave to Appeal may be filed and served. A Notice of Motion for an application for directions, leave to appeal if required, and any extension of time sought must be filed and served at the same time. Only one filing fee will be payable. The appellant must simultaneously file and

serve: (a) a Notice of Appeal; (b) a Notice of Application for Leave to Appeal; and (c) a single notice of motion seeking directions, leave to appeal, and any extension of time, with a returnable date that permits compliance with the Court of Appeal Rules, particularly Rules 7 and 8. [29] That directive instructed parties, if unsure whether leave to appeal was required, to file both (1) a notice of application for leave to appeal and (2) a notice of appeal. As Mr. Gonzalez had failed to observe this practice directive back in 2014 and only filed a notice of application for leave to appeal, Garson J.A. was justified in finding that he needed an extension of time to file the proper form. [30] The former practice directive was replaced by the current directive on May 8, 2017: The Court will no longer entertain applications for directions as to whether leave to appeal is required. If a party is unsure if leave to appeal is required, the party should file a Notice of Application for Leave to Appeal and seek leave to appeal. If leave to appeal is not required, the presiding justice may order that the Notice of Application for Leave to Appeal stand as a Notice of Appeal along with any necessary extension(s) of time. [31] The 2017 practice directive, which was intended to stop the steady flow of applications for directions to this Court on the issue of whether leave to appeal was

required, does not require the simultaneous filing of two notices in the event of uncertainty. It instead contemplates the following process: if a party filed a notice of application for leave to appeal but was later found to have an appeal as of right, then the chambers judge would either (a) convert the notice of application for leave to appeal into a notice of appeal or (b) require a notice of appeal to be filed in conformity with the rules. [32] The reference in the directive to "any necessary extension(s) of time" was only meant to cover the filing of subsequent materials, as the applicable deadlines would have likely passed before the matter could come before the chambers judge. No other extensions are necessitated by the practice directive. So long as the notice of application for leave to appeal was filed within the time limit for bringing the appeal, the judge would convert the application, nunc pro tunc, into a notice of appeal and no extension of time to file the notice of appeal would be required. [33] In the past, this Court has held that the question of whether to convert a notice of application for leave to appeal that has been filed in error does not warrant a look into the merits of the appeal. [34] For example, In Lindholm v. Hy-Wave Inc. (1997), 31 B.C.L.R. (3d) 274 (C.A. chambers) ("Lindholm No. 1"), Madam Justice Southin reasoned that, where an applicant

has an appeal as of right but mistakenly filed a notice of application for leave to appeal, it would be inappropriate for a chambers judge to address the merits of the appeal: 13 Having come to the conclusion that the appellants had an appeal as of right, I do not think it would be appropriate for me to address the question of whether the appeal has any merit. 14 To sum up, I declare that the appellants have an appeal as of right and give leave to them to amend the notice of application for leave to appeal to conform to the form of notice of appeal required by the Rules of this Court. [35] In supplementary Reasons indexed as Lindholm v. Hy-Wave Inc., [1997] B.C.J. No. 536 (C.A. chambers), Southin J.A. went on to say: 2 The respondents say that the appellants require an indulgence from this Court and, therefore, I ought to address the issue of whether the appeal, the nature of which is described in my earlier reasons, has any merit. 3 If it can be said that granting leave to amend a notice of application for leave to appeal, given within thirty days of the pronouncing of the order appealed from, to turn it into a notice of appeal is an indulgence, it is an indulgence so piffling as not to require me to address the merits. 4 I say that because whether an order falls within s. 6.1 of the Court of Appeal Act, or is one from which an appeal may be brought as of right, is often a

vexing question. The appellants had an intention to appeal within the time limited and the respondents, from receiving the notice of application for leave to appeal within the time limited, knew it. They were not lulled into any false sense of this litigation being at an end. 5 The order granting leave to amend stands. [36] However, there were no existing practice directives on this point when Lindholm was decided. [37] Mr. Justice Willcock, in Forjay Management Ltd. v. Peeverconn Properties Inc., 2018 BCCA 188 (Chambers), made a similar point in the context of the 2017 practice directive: [55] Finally, I would not accede to the argument that I must make an order extending the time within which the appeal may be brought and therefore should impose upon the applicants an obligation to establish that the appeal has some arguable merit. [56] The appeal could have been brought without leave pursuant to the Bankruptcy and Insolvency Rules if a Notice of Appeal rather than an Application for Leave had been filed on April 16, 2018. The application for leave was filed in compliance with the practice directive of May 8, 2017 which provides: If a party is unsure if leave to appeal is required, the party should file a Notice of Application for Leave to Appeal and seek leave to appeal. If leave to appeal is not required, the presiding justice may order that the Notice of Application for

Leave to Appeal stand as a Notice of Appeal along with any necessary extension(s) of time. [57] I have concluded that an order should be made that the Application for Leave to Appeal will stand as the Notice of Appeal. Doing so does not require me to address the merits of the appeal. The consequential extension of time that is ordinarily made on the making of such an order is the extension of time for the filing of an Appeal Record. Such an order is not necessary in this case. [38] The 2017 practice directive was addressed by a full division of this Court in Hiebert v. Miller, 2018 BCCA 216. The chambers judge in that case had declined to convert a notice of application for leave to appeal into a notice of appeal --apparently, for the reason that the applicant had never asked for the notice to be so converted. Justice Willcock, writing for the Court, varied the chambers judge's order on the grounds that the judge had not made the order described in the practice directive: [16] When the matter came on for hearing before Madam Justice Smith, she held that leave was not required to appeal the partition order. She did not make the Order described in our Practice Directive of May 3, 2017, which provides that on an application for leave: "if leave to appeal is not required, the presiding justice may order that the Notice of Application for Leave to Appeal stand as a Notice of Appeal

along with any necessary extension(s) of time". [17] I would now make such an order. [39] Two principles can be drawn from these cases. First, where an applicant has filed a notice of application for leave to appeal within the prescribed time limit in accordance with the 2017 practice directive but in truth has an appeal as of right, the chambers judge should convert, nunc pro tunc, the notice of application for leave to appeal into a notice of appeal: Hiebert. Second, although a chambers judge may exercise discretion in granting the conversion, this discretion ought not make reference to the merits of the proposed appeal: Lindholm No. 1; Forjay Management; see also Arbutus Excavating Ltd. v. Homewood Constructors Ltd. et al., 2003 BCCA 236 (Chambers). [40] Mr. Gonzalez erroneously filed a notice of application for leave to appeal despite having an appeal as of right. Given the 2017 practice directive, the chambers judge should have converted Mr. Gonzalez's notice of application - nunc pro tunc and without addressing the merits of the appeal - into a notice of appeal. If the chambers judge had done so, then no extension of time in which to bring the appeal would have been needed. [41] Having defeated Mr. Gonzalez's appeal, the chambers judge went on to find that he did not need to address the issue of whether the notice of appeal should be amended to add the Workers'

Compensation Board as a party to the appeal. Counsel for the Board appeared on the chambers application, but, did not appear on the review, and it is unclear whether the Board was served with the review application. [42] In my view, we should address the issue despite the fact that it was not addressed by the chambers judge. The Court may add a party who may be affected by the order under Rule 2(2)(a) of the Court of Appeal Rules and s. 9 of the Court of Appeal Act. That being said, I find that Mr. Gonzalez has not established any basis for adding the Workers' Compensation Board as a party to the appeal, as his claim for relief is based on vicarious liability of the Attorney General. In my view, given the history of this litigation, there would be no benefit to adding the Workers' Compensation Board as a party to the proceedings. I would dismiss that aspect of the application. [43] Nor has Mr. Gonzalez established that the chambers judge erred in declaring him a vexatious litigant. The order made is as follows: IT IS FURTHER ORDERED THAT the respondent's application to declare the appellant a vexatious litigant is allowed and pursuant to s. 29 of the Court of Appeal Act, the appellant may not bring or commence proceedings in this Court either on his own behalf or on behalf of others, against the Attorney General of British Columbia, Her Majesty the Queen in right of the

Province of British Columbia, the Workers' Compensation Board, or any administrative tribunal that relates directly or indirectly to his claim under the Workers Compensation Act, R.S.B.C. 1996, c. 492, or otherwise arising from the injuries he suffered in September 1995, without first obtaining leave of a justice of this Court. [44] The judge, citing Dawson v. Dawson, 2014 BCCA 44 at para. 16, found that the proposed appeal lacks merit and would only serve to relitigate issues that had already been conclusively decided. I would not disturb the order finding Mr. Gonzalez a vexatious litigant in this Court, despite the fact that he has been partially successful on the present review. In reaching this conclusion, I note Mr. Gonzalez's long history of bringing meritless claims in this Court and Supreme Court. Furthermore, while the focus is on the conduct of the litigant's conduct in this Court, the analysis of whether a litigant is vexatious may be informed by the litigant's conduct in the lower court. See Dawson at para. 26 and R.D. Backhoe Services Inc. v. Graham Construction and Engineering Inc., 2017 BCCA 91 at para. 30. [45] In summary, I would allow the review to the extent that Mr. Gonzalez has an appeal as of right and, in light of the 2017 practice directive, is entitled to have his notice of application for leave to appeal converted, nunc pro tunc, into a notice of

appeal. I would accordingly convert his notice of application for leave to appeal into a notice of appeal and extend the time for him to file and serve his appeal record to 60 days from today's date. The Court of Appeal Rules will govern the remaining filings. [46] I would dismiss the application to add a party to the notice of appeal. I would also dismiss the review insofar as it pertains to the finding that Mr. Gonzalez is a vexatious litigant. [47] Given the divided success, I would order that each party bears their own costs both before the chambers judge and on review. "The Honourable Madam Justice Bennett" I AGREE: "The Honourable Madam Justice Saunders" I AGREE: "The Honourable Mr. Justice Willcock"