Walker v. Manufacturers Life Insurance Company

2015 BCCA 143 Walker v. Manufacturers Life Insurance Company COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Walker v. Manufacturers Life Insurance Company, 2015 BCCA 143 Date: 20150407 Docket: CA042606 Between: Kathleen Walker Appellant (Plaintiff) And Manufacturers Life Insurance Company, doing business as Manulife Financial Respondent (Defendant) Before: The Honourable Mr. Justice Chiasson (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated January 28, 2015 (Walker v. Manufacturers Life Insurance Company, New Westminster Docket S126948). The Appellant appeared in person Counsel for the Respondent: A. L. Murray, Q.C. Place and Date of Hearing: Vancouver, British Columbia March 11, 2015 Place and Date of Judgment: Vancouver, British Columbia April 7, 2015 Summary: The applicant applies for indigent status. She also has applied for leave to appeal the decision of G.P. Weatherill J. directing her to obtain a medical opinion whether she is capable of conducting the underlying litigation and staying the proceedings until the opinion is obtained. Held: application dismissed. While the applicant satisfies the financial requirement for indigent status, her appeal is bound to fail. Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] The putative appellant, Ms. Walker, seeks an order giving her indigent status in an appeal from the order of Mr. Justice G. P. Weatherill directing Ms. Walker to provide to him a medical report advising whether she is "capable or incapable of managing this litigation before the next court appearance or applications are made" and staying all further applications and appearances in the matter until the report is provided. [2] The order requiring the report was made on the judge's own motion pursuant to Rule 20-2(14) of the Supreme Court Civil Rules, B.C. Reg. 168/2009. Background [3] The underlying litigation arises out a dispute between Ms. Walker, who is a lawyer, and the respondent which was her disability insurer. In January 2008, Ms. Walker suffered a head injury. The respondent paid disability payments to her for a time, but discontinued payment in January 2010. [4] The present action was initiated in April 2010. It has a protracted and lengthy history. This is recounted, in part, in an affidavit of a paralegal employed by Ms. Alison Murray Q.C. of Murray Jamieson, counsel for the respondent. Because the history provides the context for the proposed appeal, I set it out in some detail. Weatherill J. was appointed the judicial management judge in March 2014. 14. By Notice of Application filed March 4, 2013, Walker sought, inter alia, an order that she be allowed to amend her Notice of Civil Claim to include allegations of bad faith against Manulife. Walker's application came on before Mr. Justice Myers on March 19 and 20, 2013. His Lordship ordered, inter alia, that her application for the amendments be adjourned and directed that she provide a proper proposed draft Amended Notice of Civil Claim. By letter dated April 2, 2013, Murray asked Walker for a copy of her draft Amended Notice of Civil Claim. Walker did not provide a draft Amended Notice of Civil Claim. 15. On April 11, 2013, a case planning conference ("CPC") was held before Master Scarth during which the Plaintiff was ordered to provide her proposed draft Amended Notice of Civil Claim by May 10, 2013 and to provide her position regarding certain document production including production of medical records by April 22, [2013]. 16. By letter dated April 16, 2013, Murray provided a copy of the draft case plan order and the clerk's notes from the April 11, 2013 CPC to Walker and asked that she sign and return the Order. Walker did not respond. Murray followed up with Walker asking her to return the draft Case Plan Order with her consent endorsed thereon or to advise that she disputed the form of the draft by email dated April 18, 2013, letter dated April 19, 2013, email dated April 23, 2013 and letter dated May 8, 2013. Walker failed to respond in any way. 17. Walker did not provide a proposed draft Amended Notice of Civil Claim until September 13, 2013. She never provided her position in respect of the requested documentation as ordered by Master Scarth. As a consequence, Manulife proceeded with a chambers application to compel production of these records. After the application material was served, Walker retained counsel who consented to the application for production of records. The Order was made by Master Caldwell on June 25, 2013. 18. Manulife wrote to Walker on five occasions between April 19 and September 25, 2013 asking Walker to answer the requests arising from her examination for discovery which had taken place on April 12, 2013 and to produce the documents she had agreed to produce. Walker failed to respond to any of the letters and, accordingly, Manulife brought on an application to compel the answers and documents. The application was originally set for December 12, 2013 but was adjourned at Walker's request. 19. the application proceeded on December 19, 2013 before Master Keighley. The Master made an order, inter alia, requiring Walker to produce the requested documents, including computerized time records, and answer the outstanding questions by December 24, 2013 ("Master Keighley's Order"). 20. Walker refused to sign the draft of Master Keighley's Order and so Manulife secured a date to settle the terms of the order. The date was set for February 11, 2014 being one of the dates that Walker advised that she was available Walker subsequently advised that she was no longer available on February 11th and Manulife agreed to adjourn the application to February 28th Thereafter, Walker retained counsel and consented to the order as drafted by Murray. 21. The Plaintiff failed to comply with a number of terms made in Master Keighley's Order 22. Walker brought on a summary trial application before Mr. Justice Bowden on January 30 and 31, 2014. Walker's application was dismissed on the basis, inter alia, that she had failed to comply with Master Keighley's Order. At paragraph 8 of [his] Reasons, Mr. Justice Bowden rejects Walker's explanation that she had misunderstood the nature of the documents ordered to be produced by Master Keighley and, at paragraph 10, comments that her failure to comply with Master Keighley's Order is a "serious matter". At paragraph 15, Mr. Justice Bowden said: "[t]his application has been particularly difficult because of the approach taken by the plaintiff in presenting her case. She often departed from the issues being considered by the court and obfuscated matters that the court was seeking to understand." His Lordship ordered Walker to comply with Master Keighley's Order, including producing the computerized time records, before February 15, 2014 or Manulife would be at liberty to apply for a dismissal of her claim. 23. Murray forwarded a copy of the draft Order of Mr. Justice Bowden to Walker by letter dated February 5, 2014 for her approval as to the form of the order. Walker did not respond to Murray's letter. Walker retained further counsel on February 25, 2014 and, shortly thereafter, her counsel returned a copy of the Order as drafted by Murray and signed by Walker. 24. Walker provided the ordered documents, including the computerized time records, on February 14 and 17, 2014 (i.e., a portion was late). The computerized time records were to be redacted to ensure client confidentiality. However, Walker had [inappropriately] redacted other relevant information from the computerized time records. 25. At a trial management conference on March 12, 2014, before Mr. Justice G. P. Weatherill, Manulife sought, inter alia, an order that Walker deliver a proper list of documents which included identifying a number of documents which she had "batch-listed". Mr. Justice G. P. Weatherill ordered, inter alia, that the parties deliver updated lists of documents in a proper form in accordance with the Rules on or before June 13, 2014 (the "March 12th Order"). By letters dated March 17 and 26 and April 8, 2014, Murray provided a copy of the draft March 12th Order and asked Walker sign and return it. Walker did not respond, in any way, to Murray's letters regarding the March 12th Order. Ultimately, the form of March 12th Order, as drafted by Murray, was approved by Mr. Justice G. P. Weatherill on April 17, 2014 during a chambers application before him. 26. During the hearing on April 17, 2014, Mr. Justice G. P. Weatherill confirmed that the March 12th Order required Walker to provide a list of documents which identified those documents which she had batch-listed. 27. Walker failed to provide an updated and proper list of documents in accordance with the March 12th Order. As outlined below, Walker was again ordered to provide an updated and proper list of documents as a term of the October 6th Order. 28. On May 27, 2014, Mr. Justice G. P. Weatherill made an order (the "May 27, 2014 Order") requiring Walker to provide unredacted copies of her computerized time records to the court. His Lordship also ordered that Walker produce copies of all accounts rendered to clients from January 14 to July 18, 2008. 29. A JMC [judicial management conference] was set in the action for August 29, 2014 to address matters being raised by both parties, including Walker's failure to comply with the March 12th Order. By email dated July 18, 2014 Walker confirmed that August 29th suited her and by email dated July 21, 2014 the Registry confirmed the JMC would be held on August 29th. Murray Jamieson filed the necessary Requisition which was served on Walker by letter dated July 31, 2014. Thereafter, Murray sent emails to Walker on August 18, 21 and 28, 2014 raising a number of issues which Murray wished to address at the JMC. Walker failed to respond to any of Murray's August emails. 30. At 9:00 a.m. on August 29, 2014, Murray attended in New Westminster Supreme Court for the JMC before Mr. Justice G. P. Weatherill, who was present in the courtroom. Walker failed to attend the JMC. Walker did not provide any notice to Murray Jamieson or to the court prior to the JMC that she would not be attending nor did she offer any explanation following the JMC as to why she had not attended. 31. As a consequence of Walker's failure to attend on August 29, 2014, the JMC was adjourned and Murray was directed by Mr. Justice G. P. Weatherill to set another date for the JMC. 32. By email dated September 2, 2014, Murray wrote to Walker and asked for her advice as to why she had not attended and requested she provide dates so that another JMC could be set. Walker did not respond to the email. 33. On September 3, 2014, Murray forwarded a Request for a JMC to the Supreme Court Registry and copied Walker by email. The Registry set a further JMC for September 15, 2014. Copies of the Request and the unfiled Requisition setting the JMC for September 15th were forwarded to Walker by email and letter on September 8, 2014. A copy of the filed Requisition was forwarded to Walker by email and letter dated September 9, 2014. Walker did not respond to any of the emails or letters. 34. At 9:00 a.m. on September 15, 2014, Murray attended in New Westminster Supreme Court for the JMC before Mr. Justice G. P. Weatherill. Mr. Justice Weatherill attended the JMC by telephone. Walker failed to attend the JMC. Walker did not provide any notice to Murray Jamieson or to the court prior to September 15, 2014 that she would not be attending nor did she offer any explanation following the JMC as to why she had not attended. 35. As a consequence of Walker's failure to attend on September 15, 2014, the JMC was adjourned and Murray was directed by Mr. Justice G. P. Weatherill to set another date for the JMC and to personally serve a letter on Walker advising of the next JMC and outlining the orders and directions Manulife intended to seek at that JMC. 36. On September 15, 2014, Murray sent an email to Trial Division and copied to Walker requesting dates for a further JMC. By return email from Trial Division and copied to Walker, the parties were advised that a JMC could be set for October 6th. Walker did not respond to the emails. By email dated September 17, 2014 to the parties, Trial Division advised that the JMC was set for October 6th. A copy of the filed Requisition setting the October 6th JMC was forwarded to Walker by email and letter dated September 22, 2014. Walker did not respond to any of the emails or the letter. 37. As directed by Mr. Justice G. P. Weatherill, Murray prepared a letter outlining the orders and directions that Manulife intended to seek at the October 6th JMC (the "September 16th Letter"). 38. I retained a process server ["Singh"] to personally serve Walker with the September 16th Letter. On each of his attempts he left a delivery card with a message asking that Walker contact him. On each subsequent visit he observed that the delivery card was removed. At no time did Walker contact Singh. As set out in Singh's Affidavit, on his seventh attempt to serve Walker, she refused to open a screen door and instead took pictures of Singh. Singh left a copy of the September 16th Letter posted on Walker's door on September 30, 2014. 39. At no time prior to October 6, 2014 did Walker contact Murray Jamieson to advise that she would not be available for a JMC on October 6, 2014. 40. At 9:00 a.m. on October 6, 2014, Murray attended in New Westminster Supreme Court for the JMC before Mr. Justice G. P. Weatherill, who was present in the courtroom. Walker failed to attend the JMC. Walker did not provide any notice to Murray or to the court prior to the JMC that she would not be attending, nor did she offer any explanation following the JMC as to why she had not attended. 41. A copy of the October 6th Order was forwarded to Walker at her two email addresses on October 7, 2014. 42. On October 6, 2014, I retained the process server, Singh, to effect personal service of a copy of the October 6th Order on Walker. He made five attempts to serve Walker but was unsuccessful. On each of his attempts he left a delivery card with a message asking that Walker contact him. On each subsequent visit he observed that the delivery card was removed. At no time did Walker contact Singh. 43. I was able to personally serve Walker with a copy of the October 6th Order at the Vancouver courthouse library on October 16, 2014. 44. Walker failed to respond in any way to the October 6th Order including failing to make any contact, by phone, email or letter with Murray Jamieson. 45. By October 21, 2014 Walker had failed to comply with the following terms of the October 6th Order: a. To deliver a proper list of documents which included identifying those documents she had batch-listed and up-dating her list. As outlined in paragraphs 25 to 27 above, it was also a term of the March 12th Order that she produce a proper list of documents on or before June 13, 2014, which she had failed to do. b. To file and serve a Response to Counterclaim by no later than October 20, 2014. The Counterclaim was filed and served on March 6, 2014. Murray had requested that Walker file her Response to Counterclaim by letters dated May 15, July 8 and 18, August 18 and September 16, 2014. c. To provide a copy of Dr. O'Shaughnessy's file to Murray by no later than October 13, 2014. Dr. O'Shaughnessy's file was the subject of a court order made on April 17, 2014 requiring Dr. O'Shaughnessy to forward his file to Walker and for Walker to provide a copy of it to Murray. I was advised by Dr. O'Shaughnessy's office that a copy of his file had been forwarded to Walker on July 15 or 16, 2014. d. To provide copies of all original accounts rendered by Walker in respect of any legal aid clients from January 14 to July 18, 2008 to the court by October 13, 2014. Production of these records was originally ordered as part of the May 27, 2014 Order. 46. As a result of Walker's failure to comply with the terms of the October 6th Order identified in the preceding paragraph, Manulife filed an application on October 21, 2014 for a desk order seeking dismissal of Walker's claim. Walker was provided with copies of the application material as well as the related communications with the Registry by emails dated October 21, 2014. Walker did not respond to any of the emails. Walker's claim was dismissed by the October 24th Order. 47. A copy of the October 24th Order was provided to Walker by email on October 28, 2014 and the letter was also sent by regular mail Walker did not respond to the email or the letter. Before me, Ms. Walker did not question the accuracy of this history. [5] The deponent continued describing events subsequent to the dismissal of Ms. Walker's claim in October 2014 through to the hearing before Weatherill J. on January 28, 2015: 49. Walker took no steps in respect of the October 24th Order until December 4, 2014 when she filed her Application to Set Aside. 50. Walker first set her Application to Set Aside for hearing in general chambers and on an ex parte basis. I understand from material filed by Walker that the application was heard by Mr. Justice Blok, who adjourned the application and directed that: Walker serve her application on Manulife; the application should be heard by Mr. Justice G. P. Weatherill; and, the matter should be set for a JMC before Mr. Justice G. P. Weatherill on December 12, 2014 to address the application. 51. Walker served the Application to Set Aside on Murray Jamieson on December 8, 2014. 52. On December 10, 2014, Trial Division emailed Walker and Murray and advised that Mr. Justice G. P. Weatherill adjourned the JMC set for December 12th and directed that the Application to Set Aside be set for a date convenient to the parties. By further email on December 10th, Trial Division advised that Mr. Justice G. P. Weatherill was available to hear the Application to Set Aside on February 20 or 27, 2015. The parties were asked to discuss and respond. Walker did not respond to the emails. Murray advised Trial Division that she was available on February 20th. 53. Murray emailed Walker on December 10, 2014 and asked for her availability on the proposed dates. Walker did not respond. 54. On December 11, 2014, Trial Division emailed asking if the parties had agreed on a date for the Application to Set Aside and, again, offered February 20 or 27. Trial Division noted Murray's availability on February 20th. Walker did not respond. 55. I understand from material filed by Walker in the Supreme Court Action that on December 11, 2014, Walker appeared before Mr. Justice Harvey, ex parte, apparently, to explain the urgency in her application. Mr. Justice Harvey did not make any orders and recommended that Walker make a request to appear before Mr. Justice G. P. Weatherill. Walker then filed a Request for Urgent Appearance before Mr. Justice G. P. Weatherill. 56. On December 12, 2014, Trial Division emailed and asked if the parties had come to an agreement on a date for the hearing of the Application to Set Aside and, again, offered February 20 and 27. Walker did not respond. 57. On December 15, 2014, Walker emailed Trial Division and copied Murray stating "Having not heard from anyone on Friday 12 December 2014 although promised a response from the New Westminster trial scheduling on Friday and I waited at the Vancouver Courthouse all day, I prepared the attached letter which I am now dropping off with Sue Smolen at the Courthouse. I am requesting that someone other than Mr. Justice Gary Weatherill hear my application on two half days this month (Ms. Murray's time estimate, mine is 45 minutes), December 2014." 58. Now produced and attached as Exhibit "J" to my Affidavit is a copy of Chief Justice Hinkson's response dated December 15, 2014 in which he advised Walker that he will not accede to her request that he appoint another judge and that her recourse was to appeal the orders or proceed with her application before Mr. Justice G. P. Weatherill. 59. On December 15, 2015, Trial Division emailed the parties and advised: Mr. Justice G. P. Weatherill was available to hear the parties for directions in the next couple of weeks; the date for the Application to Set Aside could be February 20 or 27; Murray was available for February 20; and, Trial Division had not heard from Walker. Walker did not respond. 61. On December 16, 2014, Trial Division emailed the parties again asking for Walker to respond advising whether she was available on February 20. Walker did not respond. 62. On December 22, 2014, Walker filed an application returnable for the next day seeking an Order that a Judge other than Mr. Justice G. P. Weatherill hear her Application to Set Aside. Walker emailed Murray and advised that she was at the courthouse but there were no Masters or Judges sitting and that she would apply the next day for short leave to have her application for an order that any judge hear her Application to Set Aside heard the next day (i.e., she would be seeking short leave on December 23rd for the application to be heard on December 23rd). 63. On December 23, 2014, Walker proceeded with her application for short leave which was opposed by Manulife. The application for short leave was dismissed by Master Keighley. 64. By email dated December 23, 2014, Trial Division advised the parties that since Walker had not responded to Trial Division's emails, that her Application to Set Aside would not be heard on February 20th and that Walker should send a request to appear when she was ready to set her application before Mr. Justice G. P. Weatherill. Walker did not respond. 65. On December 24, 2014, Walker set her application to have another Judge hear her Application to Set Aside for hearing on January 12, 2015. 66. On December 29, 2015 Murray emailed Trial Division, copied to Walker, and asked whether a JMC could be arranged to address Walker's attempts to have another Judge hear the Application to Set Aside. 67. On January 6, 2015, Trial Division emailed the parties and advised that Mr. Justice G. P. Weatherill was available for a hearing for directions on January 20‑23 or 27‑30, 2015. Walker did not respond. 68. On January 12, 2015, Walker proceeded in regular chambers with her application seeking that another Judge hear her Application to Set Aside. The application was heard by Madam Justice Burke. I am advised by Murray and do verily believe it to be true that when the application was called, Walker brought on a preliminary motion, without any notice, to have Murray removed as counsel of record on the application. The preliminary motion took approximately two hours to be heard and, consequently, there was not enough time for Walker's substantive application to proceed. Madam Justice Burke advised oral reasons would be given the following morning. 69. On January 13, 2015, Madam Justice Burke dismissed Walker's preliminary application to have Murray removed as counsel of record. 70. On January 14, 2015, Walker's application to have another Judge hear her Application to Set Aside proceeded before Mr. Justice Blok. I am advised by Murray and do verily believe it to be true that His Lordship ordered Walker to proceed with a JMC before Mr. Justice Weatherill on January 21, 2015 (the application was stood down to allow the parties to attend at the Registry to obtain Mr. Justice G. P. Weatherill's available dates). 71. On January 16, 2015, Walker served an application returnable January 28 for an order, inter alia, that the trial of this matter proceed on February 2, 2015. 72. On January 21, 2015, the parties appeared for a JMC before Mr. Justice G. P. Weatherill. His Lordship ordered, inter alia, he was seized of all applications. He also set February 18 and 19, 2015 as the date for the hearing of Walker's Application to Set Aside. I am advised by Murray and do verily believe it to be true that Mr. Justice G. P. Weatherill also advised Walker that her trial would not be proceeding on February 2, 2015. 73. as a consequence of Walker's request that her Application to Set Aside proceed urgently, Mr. Justice G. P. Weatherill rearranged his judicial schedule and attended in Vancouver on January 27 and 28, 2015 to hear Walker's application but Walker no longer wished to proceed. It was during this hearing that His Lordship made the order from which leave to appeal is sought. [6] Ms. Walker filed a notice of application for leave to appeal on February 27, 2015 and a notice of motion and supporting affidavit for indigent status on March 2, 2015. Discussion [7] Court of Appeal Rules, B.C. Reg. 297/2001, Rule 56 states: 56 Despite anything in these rules, no fee is payable to the government by a person to commence, defend or continue an appeal or application if a justice, on application before or after the commencement of the appeal or application, finds that the person is indigent, unless the justice considers that the position being argued by that person (a) lacks merit, (b) is scandalous, frivolous or vexatious, or (c) is otherwise an abuse of the process of the court. [8] Essentially, there are two criteria: the financial position of the applicant and the merits of the appeal: Aldergrove Credit Union v. Hoessmann Estate, 2013 BCCA 213 at para. 39, Chiasson J.A. (in Chambers). In my view, as with many applications, the interest of justice is an important factor in determining whether to grant indigent status: Schaper v. Beauchamp, 2011 BCCA 428 at para. 36 (Rowles J.A. in Chambers); Madzar v. Sullivan, 2013 BCCA 335 at paras. 26‑28 (Chiasson J.A. in Chambers). [9] Although the respondent questions whether Ms. Walker meets the financial criterion, the main thrust of its position is on the merits. Ms. Walker has filed a considerable amount of material addressing the financial criterion. She was given indigent status or its equivalent in the Supreme Court. I am satisfied she meets the financial criterion in this Court. [10] I turn to the merits. The threshold is low. Indigent status will be denied if an appeal is bound to fail or has no prospect of success: Kohlmaier v. Campbell, 2003 BCCA 61 at para. 5 (Rowles J.A. in Chambers); Grinshpun v. University of British Columbia, 1999 BCCA 584 at para. 4 (Southin J.A. in Chambers). Rule 20-2 [11] The proposed appeal concerns Rule 20‑2 of the Supreme Court Civil Rules. The Rule is a complete code for "the commencement and conduct of proceedings for persons under disability": Finnegan v. Gronow (1998), 53 B.C.L.R. (3d) 356 (S.C.) at para. 23. The following provisions are relevant to the present application: Rule 20-2 - Persons under Disability (2) A proceeding brought by or against a person under legal disability must be started or defended by his or her litigation guardian. (3) Unless a rule otherwise provides, anything that is required or authorized by these Supreme Court Civil Rules to be done by or invoked against a party under disability must (a) be done on the party's behalf by his or her litigation guardian, or (b) be invoked against the party by invoking the same against the party's litigation guardian. (4) A litigation guardian must act by a lawyer unless the litigation guardian is the Public Guardian and Trustee. (10) If a party to a proceeding becomes a mentally incompetent person, the court must appoint a litigation guardian for him or her unless (a) a committee has been appointed for the party, or (b) the party has a litigation guardian under section 35 (1) of the Representation Agreement Act. (11) If it is in the interest of a party who is under disability, the court may remove, appoint or substitute a litigation guardian. (14) A party must not take a step in default against a person under disability without leave of the court. [12] Ms. Walker concedes that under existing jurisprudence, "legal disability" means that the person is not capable of conducting litigation, exercising judgment in relation to the claims in issue and possible settlement or instructing counsel. In Grieg v. Stretch, 2001 BCSC 576, 11 C.P.C. (5th) 291, the court stated: [7] Both Counsel seemingly adopted as the definition of the words "by person under disability" in Rule 6(2) the definition attributed to Lord Denning M.R. in Kirby v. Leather, [1965] 2 All E.R. 441 (Eng. C.A.), as set out in Mr. Guidera's Brief: Whether the person in question is capable, aside from any disability established by law, such as infancy, to instruct Counsel and to exercise judgment in relation to the claims in issue and the possible settlement, as a reasonable person would be expected to do. See also: Beadle (Guardian ad litem of) v. Beadle (1984), 56 B.C.L.R. 386 (C.A.). [13] The issue of Ms. Walker's ability to conduct the litigation apparently first arose in October 2013. On April 17, 2014, Mr. Justice Weatherill referred to this: THE COURT: I understand your situation, I understand the difficulties you're having and -- you have made that very clear to me. But in preparing for today I read the reasons for judgment of Justice Harvey in one of the applications -- THE COURT: And again you were representing yourself; Ms. Murray was here. And I flagged this comment by Justice Harvey in his reasons: It is the plaintiff's hope that the matter can be settled through mediation or determined at the scheduled summary trial. She says she is without funds to retain counsel to prosecute the trial and says because of the nature of her injury she is unable to properly prosecute the action on her own. So those are the words I wanted to emphasize from the judgment: "Unable to properly prosecute the action on her own." So that's apparently what you told Justice Harvey in October, and when I first got involved, when this matter was set in March and it was set for trial the following Monday, which I adjourned, I was concerned about that and I raised that with you. [14] On September 16, 2014, Ms. Walker was designated a Person With Disabilities by the Ministry of Social Development and Social Innovation. [15] In her December 4, 2014 application to set aside the October court orders, Ms. Walker pleaded Rule 20‑2(14). She contended that the orders were steps in default and could not be taken against her as a disabled person. [16] On January 27, 2015, Ms. Walker wrote to a Registrar of the Supreme Court noting that she had been designated a disabled person by the government ministry. She alleged that Weatherill J. had agreed with the respondent that she was not protected by Rule 20‑2(14) and stated: That raises a Constitutional argument under the Charter s. 15, which I am currently considering. I will get back to you as soon as possible this week in that regard. [17] Also that day, Ms. Walker delivered a proposed agenda for the appearance before Weatherill J. the next day. It stated: Agenda for Appearance tomorrow, 10:00 a.m. 28 January 2015 I understand although I did not receive notice of it until 11:00 a.m. today that there was an appearance today and another appearance has been scheduled for tomorrow. I am not sure what the appearance is for but I will be there. 1. Application Record for Reconsideration Application: I do have the Judge's copies of the application binders I have prepared here again today at the Courthouse library. Should I bring them up [to] you now? I will wait for your answer before I leave today. If I don't hear from you I will bring them tomorrow. 2. Withdrawal by Ms. Murray: Further to the Order of Madam Justice Burke on 12 January 2015 (oral reasons for judgment are apparently now available), I am preparing an application that Alison Murray must withdraw for the purpose of the reconsideration application as she has put her credibility at issue within the meaning of Rule 5.2‑1 of the Law Society of B.C. Code of Professional Conduct. I hope to file that application today or tomorrow morning before Court. 3. Who requires Notice?: Another issue that we can deal with tomorrow is who should be given notice of the various applications which were the subject of the Orders made on 6 October 2014. For example I believe that the Law Society of B.C. and the Legal Services Society should be given notice of the disclosure of client information as this is not something that a non-lawyer litigant would have to produce and it puts other people's privacy and rights at issue. The A.G. must be given notice of a constitutional challenge and the Minister of Social Development (who has jurisdiction over the rights of [disabled] persons) should also be given notice of my application and the Defendant's defense that I am not a legally disabled person within the meaning of the Rules. 4. Counterclaim and summary trial application regarding fraud. I believe Ms. Murray withdrew this counterclaim in the appearance before Master Keighley on 23 December 2014 so I did not include it in the Updated Trial Record. Now I understand from her that she has not withdrawn it. [18] I quote at length from the transcript of the January 28, 2015 proceedings before Mr. Justice Weatherill: MS. WALKER: I'm not a disability lawyer at all, but, as you know, I came upon rule 20‑2(14), which is that no steps in default must be taken against a disabled person. And, as you know, the defendant is relying on the distinction that I'm not disabled according to the rules because I don't have a lawyer, and I don't have a guardian ad litem. That's the first requirement, I think, of rule 20‑2(14) -- or 20‑2. And -- THE COURT: Well, do you say that you're disabled within the meaning of the rules? MS. WALKER: I believe I am, and I think there is a charter argument that needs to be made there. People like me, My Lord, who are disabled but who can't get lawyers -- I can't get anyone to represent me. No one. THE COURT: And that disability is what exactly? MS. WALKER: It's what Dr. Jessop sets out in his application, which is I have the disabilities a brain-injured person has. This was followed by a lengthy description of Ms. Walker's problems which included falling down, almost burning her house down and forgetfulness. She stated that she was fine in the morning, but deteriorated as the day goes on. [19] Ms. Walker complained that counsel for the respondent did not bring Rule 20‑2(14) to the judge's attention in October to which the judge commented: THE COURT: Nowhere in the court material prior to December 2014 was there even a sniff or a hint of you being disabled to the point that you're having difficulties with the issues that you're describing leading up to your failure to attend these conferences. [20] Returning to the discussion concerning the failure of respondent's counsel to bring the rule to the judge's attention Ms. Walker stated: MS. WALKER: she should have brought that rule to your attention and said, but you don't need to worry about that because Ms. Walker's not disabled within the meaning of these rules. I say that I am disabled within the meaning of the rules, and that there's -- THE COURT: Okay, but let me stop you there. MS. WALKER: Yes. THE COURT: And that's where I want to get to. MS. WALKER: Okay. THE COURT: And this might be the solution to the problem. MS. WALKER: Okay. THE COURT: If you are, as you say, a person with a legal disability -- MS. WALKER: Yes. THE COURT: -- under these rules -- MS. WALKER: Yes. THE COURT: -- then you have to conduct these proceedings by way of a litigation guardian. MS. WALKER: And that's where the charter issue comes up. THE COURT: -- think that might -- THE COURT: -- be the solution to the problem because we'll have a litigation guardian who will have an address for delivery and a telephone and an e-mail, and we'll be able to deliver documents to and make decisions, and then -- MS. WALKER: you said an off-hand comment where you brought up this issue of you didn't think I fell within the rule that protects me from default judgment as a disabled person, and that worried me greatly because that was my strongest argument. So if you don't feel I'm protected by that rule, then -- THE COURT: All right. So you say -- MS. WALKER: -- that kind of pulls the rug out from under me. [21] Mr. Justice Weatherill then referred to Finnegan v. Gronow and noted that Rule 20‑2 is a complete code respecting persons under disability. He continued: So two things come out of that: one, it's -- the rule is a complete code as to what happens when persons are defined as persons with -- under disability, which means mentally incompetent. Now, if that's the case, then a litigation guardian under the rule must be appointed. [22] Ms. Walker replied: MS. WALKER: So then you take away that reasoning if that's the case, and I say that -- that is there is a discrimination issue there, and that people like me who can't get lawyers -- I've got an affidavit from a lawyer as to why he can't act because it would make him bankrupt. So there's an issue of discrimination of people who are labelled disabled, like me, labelled -- I've got all the downside of being labelled a person with disability by the highest person in this province who can make that designation, and yet I can't get the benefit of protection by rule 20‑2(14). So to me that's a charter issue. So -- THE COURT: Well -- MS. WALKER: -- it's not -- THE COURT: -- you have been designated as a person with a disability by that provincial statute. MS. WALKER: Yes. THE COURT: And it has to do with funding of money. MS. WALKER: Yes. THE COURT: And I think if you look at that statute there will be a section that defines what a person with disability means. I think that's a different interpretation than what is meant under rule 20 as a person under disability. And that was the point of me raising the Finnegan v. Gronow case. MS. WALKER: And I don't think -- THE COURT: Because it says a legal disability means a person who is mentally incompetent. MS. WALKER: So it may be that there needs to be a determination on that. Do I fall within that or don't I fall within that? But even if all of that is just -- even if I don't fall within it and I'm not a person within the meaning of -- protected by that rule from default judgments -- all of the case law with regards to section 22(1), reconsideration, protects me. That I have a meritorious case. That I acted as quickly as -- [23] The judge reviewed some of the history of the litigation and his participation in it and stated: If there's one thing that's evident to me, Ms. Walker, and if it wasn't evident to anyone concerned before, it is clear, crystal clear now, that you are not able to manage this litigation. [24] After reviewing a number of matters, the judge returned to the question of Ms. Walker's ability to conduct the litigation: THE COURT: I started this conversation with my comments that I'm very concerned about your ability to conduct this litigation. The way it has been conducted has -- is not the way it should be conducted. There could be various reasons for that; I've heard some of them today. But the long and the short of it and the end result is you, Ms. Walker, I am concerned [you] cannot conduct this litigation by yourself. MS. WALKER: Well, I can't find a lawyer to help me. THE COURT: Now, over the lunch break, because I was concerned about the future conduct of this litigation, if there's going to be future conduct, did some research on my own, and I found a case called Pavlick -- and I'm going to give you a copy -- Pavlick v. Hunt [Pavlick v. Hunt and Gagnon, 2005 BCSC 285] case before Mr. Justice Truscott in December of 2004. And it was a similar situation where there was a self-represented plaintiff initiating a claim, and that was defended by a fairly senior counsel. There was a case management judge appointed; that was Mr. Justice Truscott. There were similar issues that I am faced with in your case, Ms. Walker. He said this -- this is -- I'm reading from paragraph 11: On December 2, 2004, I did not allow the defendants' motions to go ahead as I had developed a great concern by that point in time over the capacity of Mrs. Pavlick to properly prosecute this claim on her own. It was clear to me on the case management conference that Mrs. Pavlick was completely at a loss to understand to how to proceed to present her claim properly and to deal with the defendants' applications. I was concerned that if Mrs. Pavlick has a provable claim in law, she will be unable to prove it by reason of her mental disabilities. So I'll repeat. A person under disability is a person who cannot instruct counsel or exercise judgment in relation to claims in issue as a reasonable person would be expected to do. So I am satisfied based on what I've heard -- not only today, but since my involvement in this case -- that there is a real question, Ms. Walker, as to whether you have the ability to exercise judgment relating to the claims that you're making against Manulife as a reasonable person would be expected to do. You in fact have raised your own mental capacity in the application you made to be accepted as a person with disabilities by the provincial government under the relevant legislation. I am not able to determine today whether you are a person under disability within the meaning of rule 20‑2, but I am concerned that you are. [25] The judge expressed the view that the case was, and had been, in disarray and that the appointment of the Public Trustee or a litigation guardian was necessary. Ms. Walker pointed to her experience dealing with other litigation. The judge asked her whether she could provide a report "about whether your doctor feels that you are capable of exercising judgment in relation to your claim ." She replied: In terms of answering your question, Dr. Jessop, the last time I met with him to discuss the most recent lupus results, he said, anything that I can do for you, Kathleen, I will do; I'll write a letter for you. The judge continued: Thank you. But I want him to address that issue about whether you -- he believes, medically speaking, you are capable of managing this litigation as a person -- a reasonable person would be expected to do. In other words, are you disabled, in his judgment -- or his opinion, within the meaning of rule 20-2. That's what I need the answer to because I'm concerned that you may not be. And I'm concerned for all the reasons we've talked about. I'm going to say this once more. You, Ms. Walker, need to have your doctor, and I'd prefer a psychiatrist, write a report to the court and advise whether or not, in that doctor's opinion, you are capable of managing this litigation. I want to know, just to be clear, whether we need to get you some help with this litigation if it goes on because the way it has been managed, the way it has been conducted to date isn't working. It's not working for the court. It's not working for you. It's not working for Ms. Murray. So we're going to fix that. And step one in fixing it is going to be me getting a letter from your doctor on that point, whether or not you have the -- capabilities. [26] The judge then referred again to Pavlick and to the need to determine whether Ms. Walker is under a legal disability pursuant to Rule 20‑2; that is, whether she is capable of instructing counsel and exercising judgment in relation to the claim and possible settlement. [27] Ms. Walker raised issues concerning the production of documents. The judge refused to deal with them stating: THE COURT: Before there are any more applications, before there's any more appearances in court by you, or attempts to be -- appear in court by you on this litigation, you must satisfy me that you are either, A, capable of managing this litigation because you're not disabled, or B, incapable of managing this litigation because you are disabled. And we're going to get a letter from your doctor on that point before we go any further. MS. WALKER: Okay. THE COURT: I want to hear from your doctor. And I don't want just a one-line note on a prescription pad. I want a report from him explaining to you why it is -- if she says you're disabled by -- and I'm looking at the definition from the Greig v. Stretch case. And then once we get that letter, we can move forward and decide what we're going to do from there. So does that make sense? He further explained why he was making his order: -- in an effort to try and determine how this litigation proceeds if it proceeds at all. So is it going to be Ms. Walker litigating the case on behalf of Ms. Walker? Is it going to be a guardian ad litem litigating the case? Is it going to be the public trustee? Who? But before we can make that determination, I want to know from your doctor whether he feels, from a medical point of view, that you're either able to or not able to -- -- properly -- given your medical condition As a reasonable person is expected to do. [28] In response to Ms. Walker's suggestion that he was making some determination on the merits, the judge stated: No, no. I'm not deciding that at all. I want to know are you in a position to be able to prosecute this claim of yours in a reasonable manner that makes some sense? Can you exercise reasonable judgment? Can you or not? And I'm asking you to go to your doctor and get me a report that answers that question. [29] Finally, the judge confirmed the orders he was making: The two orders I'm making are the two I've made. One, doctor's letter; two, no further applications by you or by Ms. Murray [sic] to anyone until we get that letter. So no more attendances at court, setting the matters down on the general chambers list, anything, until step one is completed. Analysis [30] It is important to understand what the January 28, 2015 order does and does not do. It requires a medical report to address the capacity of Ms. Walker to conduct the litigation and stays the litigation pending such a report. It does not decide that Ms. Walker is legally disabled. [31] Much of Ms. Walker's submissions and material go to establishing that she is capable of conducting the litigation. That may be so at the end of the day, but the judge obviously was concerned. His concern flowed out of a lengthy history of somewhat erratic behaviour. More importantly, Ms. Walker herself contended she was disabled in accordance with Rule 20‑2; it was a basis on which she asserted steps in default should not have been taken against her. She and the judge both proceeded on the basis that the rule pertains to persons who cannot conduct litigation and she concedes that is the present state of the jurisprudence. [32] There has been no suggestion that the judge did not have the authority to act on his own and to order that a medical report be obtained as was done in Pavlick. I agree that the facts of that case are very different from those in the present case, but that is not determinative of the judge's exercise of discretion in the present case. [33] Rules 20‑2(2) and 20(3) require a litigation guardian if a person is disabled legally. Rule 20‑2(11) gives a judge discretion to appoint a litigation guardian if it is in the interests of a person under a disability to do so. On January 28, 2015, Weatherill J. had before him extensive information supporting Ms. Walker's ability to conduct litigation and extensive information and experience to the contrary. She stated she was disabled pursuant to Rule 20‑2, but resisted steps being taken to determine whether she was disabled under the rule. In that context, the judge exercised his discretion to take a step towards determining Ms. Walker's status. In my view, in her best interests, consonant with the rule and with the proper administration of justice, he exercised his discretion based on the information before him. [34] In my view, there is no prospect that a division of this Court would set aside the judge's exercise of discretion to take steps to ascertain whether Ms. Walker was disabled legally as she asserted she was. The appeal of the exercise of discretion is bound to fail. [35] Ms. Walker contends that Rule 20‑2(14) should afford protection to all persons who are disabled, not simply persons who are incapable of conducting litigation by reason of mental infirmity. That is, she contends that the determination by the government ministry that she is a disabled person qualifies her for relief under Rule 20‑2(14). The judge correctly pointed out that the ministry's determination is not determinative of the inquiry under Rule 20‑2. [36] In her January 27, 2015 letter to the Registrar, Ms. Walker mused about a possible argument pursuant to s. 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter]. The issue was referred to in the proceeding before Weatherill J. Before me, Ms. Walker expanded her contention. She asserts that if Rule 20‑2 is limited to persons who mentally cannot conduct litigation, it offends the Charter. There are a number of problems with this position. [37] I am not aware that a notice under the Constitutional Question Act, R.S.B.C. 1996, c. 68, has been served. From comments of Ms. Walker before me and in the transcript of the January 28, 2015 proceedings, I understand that she knows a notice is required. Although Ms. Walker indicated that the Charter might be engaged, there was neither material nor argument on the point on January 28, 2015. There is nothing in the record before this Court on which a constitutional determination could be made. [38] I question whether the order made on January 28, 2015 engages the Charter issue Ms. Walker asserts. No decision has been made that she is not capable of conducting the litigation. If such a decision is made, she may be able to establish that Rule 20‑2(14) was engaged when the October orders were made in support of her application to set those orders aside. If it is determined that she is capable of conducting the litigation and not entitled to the protection of Rule 20‑2(14), she will be free to attempt to advance what I understand to be her Charter argument: that is, as a disabled person as designated by the ministry who is capable of conducting litigation it is discrimination not to afford to her the protection of Rule 20‑2(14). [39] In my view, there is no prospect that a division of this Court would entertain a constitutional challenge on the proposed grounds in this appeal. The attempt to raise such a challenge is bound to fail. Conclusion [40] While I am satisfied that Ms. Walker meets the financial criterion for indigent status, on the material before me I conclude that her proposed appeal is bound to fail. [41] The application for indigent status is dismissed. "The Honourable Mr. Justice Chiasson"