In the Matter of Benjamin Roy McDougall

2005 BCSC 398 In the Matter of Benjamin Roy McDougall IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: In the Matter of Benjamin Roy McDougall, 2005 BCSC 398 Date: 20050321 Docket: 41460 Registry: Nanaimo IN THE MATTER OF THE SUMMARY APPLICATION OF Benjamin Roy McDougall FOR INDIGENT STATUS Before: The Honourable Master A.N. Patterson Reasons for Judgment B.R. McDougall Appeared in Person Date and Place of Hearing: March 17, 2005 Nanaimo, B.C. [1] The applicant, Benjamin Roy McDougall, has brought an application for indigency status concerning his appeal from a decision of Saunders, J. in Provincial Court, dated February 10, 2005. In that decision, Saunders, J. found Mr. McDougall liable for damages for assaulting Mr. McArthur and assessed damages including costs at $3,341. [2] Karen Stewart, counsel for the plaintiff in Provincial Court and for the intended respondent on the appeal, appeared and argued that this appeal was without merit and that the applicant was not necessarily indigent. [3] Although this is framed as an indigence application, it appears that the applicant also seeks to be relieved of the requirement to post security for costs in the amount of $200 and the requirement to pay the amount of the judgment into court. Appendix C, Schedule 1 of the Rules of the Supreme Court contains the following provisions: Indigency status S1 (1) If the court, on summary application before or after the commencement of a proceeding, finds that a person is indigent, the court may order that no fee is payable to the Crown by the person to commence, defend or continue the whole or any part of the proceeding unless the court considers that the claim or defence (a) discloses no reasonable claim or defence, as the case may be, (b) is scandalous, frivolous or vexatious, or (c) is otherwise an abuse of the process of the court. [4] The application for indigency status is a two-step procedure. First, the court must find the applicant to be indigent, and then determine whether the case discloses a reasonable claim or defence, as the case may be, and whether then it is scandalous, frivolous, vexatious or an abuse of process. [5] In a similar application for indigency status being made to the British Columbia Court of appeal, Southin J.A. in Grishpun v. University of British Columbia 1999 BCCA 584 said this about subparagraph (a): The words "discloses no reasonable claim or defence as the case may be" are not precisely apt to the business of this Court. When what is at issue is an appeal, I take them to mean that the appeal has no reasonable prospect of success. Perhaps the test should be "bound to fail." [6] In my view, that analysis applies in this case and the question after determining whether or not the applicant is indigent is whether or not his appeal has any prospect of success. [7] The applicant's evidence concerning his financial situation is somewhat sketchy to say the least. He gives his monthly income as $1,114.20 and his monthly expenses neatly rounded out to $1,200, which would mean a net shortfall every month of some $85. The applicant owns a carpet cleaning business known as Trade Mark Industries, that business has assets including a van and carpet cleaning equipment. He has been in the carpet cleaning business since April, 1991, and the business income of the applicant, according to the transcript of the Provincial Court payment hearing varies from $400 to $2,000 per week. [8] At the payment hearing, Gould J. ruled that Mr. McDougall was to pay $250 per month on the outstanding judgment to commence June 1, 2005. That ruling was based on Mr. McDougall's statement that he could pay $200 to $300 per month on the outstanding judgment. [9] With an income of up to $2,000 per week and the ability to pay $250 per month on the outstanding judgment, it is my view that the applicant's allegation of indigency is not made out. [10] The applicant provided a draft notice of appeal which contained the following grounds of appeal. 1. That the Judge failed to consider the claimants high blood pressure condition evidence and correctly apply it to this case. 2. Instead the Judge incorrectly applied this evidence in determining the "extent of liability," the focus of the claimant's case, before determining whether liability existed." 3. The Judge failed to comprehend and correctly apply agreeing testimony to this case. 4. The Judge failed to correctly apply a statement made by claimant counsel. 5. In this confusion, the Judge did not correctly interpret defendant's testimony and apply factual evidence causing her to fail in her duty. [11] Because the original grounds for appeal appeared not to disclose any grounds of appeal, I suggested to the applicant that he amend his notice of appeal to provide further grounds or different grounds for the appeal. The amended notice of appeal contains the following grounds of appeal. Supporting evidence to the testimony of the defendant was ignored - the spot where the incident occurred and where it ended was agreed to by both parties and this evidence supports the testimony of the defendant and discredits the claimant's case. Also statements made on behalf of the claimant showed his story was subject to change. [12] In my view, neither the grounds of appeal set out in the first notice of appeal nor the grounds of appeal set out in the amended notice of appeal meet the test set out in Rule S1 that there is a reasonable claim or defence or that stated by Southin J.A. that the appeal has any prospect of success. Appeals from the Provincial Court to Supreme Court are on the record and are no longer trials de novo which means that a transcript of the evidence before Saunders J. would be before the Supreme Court Judge hearing the appeal and no further evidence would be permitted except with leave. Saunders J. reserved and gave a considered decision in which she accepted the evidence of the Mr. McArthur and found the evidence of the applicant implausible. Consequently, it is my view that using either of the grounds of appeal or both together the appeal has no prospects of success and is bound to fail. [13] As a result, the application for indigent status is dismissed. The application to be relieved from posting security for costs and the amount of the judgment is also dismissed. The applicant is, of course, at liberty to pursue his appeal upon paying the usual fees and posting the proper security. "Master A.N. Patterson"