Jacques v. Jacques

2023 BCSC 1764 Jacques v. Jacques

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Jacques v. Jacques, 2023 BCSC 1764 Date: 20230726 Docket: E55334 Registry: New Westminster Between: Chang Ying Jacques Claimant And Roger Jacques Respondent Before: The Honourable Mr. Justice Taylor Oral Reasons for Judgment In Chambers The Claimant Appearing on her own behalf: C. Lu Counsel for the Respondent: M.K. Mand Place and Date of Hearing: New Westminster, B.C. July 20, 2023 Place and Date of Judgment: New Westminster, B.C. July 26, 2023 [1] THE COURT (by videoconference): These are my reasons for decision on the application by Mr. Jacques. [2] Mr. Jacques, the respondent in family proceeding E55334 (the "Family Proceeding"), and the defendant in civil proceeding 247785 the ("Civil Proceeding"), applies for the following orders: 1) the two proceedings be joined or heard together; 2) that the notice of civil claim in the Civil Proceeding be struck; 3) that Ms. Lu, the claimant in the Family Proceeding and the plaintiff in the Civil Proceeding, be declared a vexatious litigant; 4) that Ms. Lu's certificate of pending litigation on the family home be removed pursuant to the final order in the Family Proceeding entered on January 10, 2023; 5) costs; and 6) that Ms. Lu's approval as to the form of the order on this application be dispensed with. Background [3] A six‑day trial was held in the Family Proceeding, concluding on

April 13, 2022. The issues at trial included divorce, parenting, child and spousal support, division of family properties and debts, a protection order sought by Mr. Jacques against Ms. Lu, and a name change requested by Ms. Lu. [4] Following the conclusion of the trial, I reserved judgment until October 31, 2022, when I delivered the reasons for the decision (the "Trial Reasons"). In the ultimate result, as set out in the Trial Reasons, Mr. Jacques was substantially successful on the principal asset division and support issues. A further central issue at trial (related to the matter of parenting time) was Ms. Lu's allegation that Mr. Jacques had sexually abused their daughter. Having heard the testimony of the parties, including their daughter, I concluded in the Trial Reasons that this allegation was unsupported by the evidence. To the contrary, I concluded that it was in fact Ms. Lu who had perpetuated family violence against Mr. Jacques and their daughter, including violence arising from her unsubstantiated allegations of Mr. Jacques' alleged sexual abuse and repeated harassment. [5] During the interim period after the conclusion of the trial and prior to the release of the Trial Reasons, Ms. Lu made numerous requests to trial court scheduling to appear before a justice to reargue the merits of the issues at trial and to obtain a summary judgment against Mr. Jacques. She

was advised by trial scheduling that such an application was not appropriate pending the release of the Trial Reasons. [6] Nonetheless, on July 18, 2022, Ms. Lu filed a notice of application seeking essentially the same relief that she had sought at trial, but on a summary basis. On August 12, 2022, a hearing was held by Justice Dley, who dismissed the application with costs payable by Ms. Lu to Mr. Jacques. In his order dated August 12th, Justice Dley directed in part: The Claimant may bring her application back before the Honourable Mr. Justice Taylor after he renders his decision of the trial. [7] On August 3, Ms. Lu submitted a request to appear before me. Ms. Lu stated: The evidence clearly [demonstrates] that the Respondent has not real prospect of succeeding in this [litigation]. The Court shall grant summary judgment since the movant shows that there is no genuine [dispute] as to any material fact and the movant is entitled to judgment as a matter of law. I have reset the July 29 . . . hearing to August 12 . . . I wish that your honourable Mr. Justice can be the presiding judge for the August 12 . . . hearing. [8] On September 8, court scheduling responded to Ms. Lu stating: Justice Taylor has reviewed this RTA and advised he does not have to hear it. [9] After the release of the Trial Reasons, Ms. Jacques made numerous requests to court scheduling for a hearing. On

November 2, Ms. Lu submitted a request to appear before me. The submission stated: Nature of Application: 1 Pursuant to the Personal Information Protection Act . . . 18.23, an order for the disclosure the medical records of my daughter . . . the Last Will of Respondent's and the number of children that the Respondent owns. 2 The Claimant object the judgement that was made on Oct 31, 2022 to this case. 3 If this case required another trial and it is appropriate, the Claimant would like the court appoint an attorney to represent her. Reason why this must be heard by (Mr. Justice Taylor): The above evidence should prove whether the Respondent conducted the serious criminal law codes 271(a); 131(1), 132 and 139(1), idem (2). [10] I heard this application on December 6, 2022 and dismissed the application with costs to Mr. Jacques. At the December 6 hearing, I also advised Ms. Lu that if she disagreed with the Trial Reasons or wished to vary the result, the appropriate remedy was an appeal to the Court of Appeal. Court scheduling also advised Ms. Lu by email that the appropriate procedural course was appeal and not further applications to the Supreme Court to vary the result at trial. [11] The parties again appeared before me on January 5, 2023, to settle the final order and to speak to costs in the family law proceeding. The reasons for judgment in relation to costs were released on

January 31, 2023 and Mr. Jacques was awarded costs and double costs. [12] Procedurally, this should have brought the family law proceeding to an end. Unfortunately, it did not. On January 10, 2023 Ms. Lu filed notice of application in the family law proceeding unilaterally setting a hearing date for January 23, which was not served properly pursuant to the Supreme Court Family Rules. In her notice of application, Ms. Lu sought to relitigate many of the issues addressed at trial. [13] Ms. Lu's application was dismissed by Justice Blok on January 23, 2023 and Ms. Lu was ordered to pay costs to Mr. Jacques in the amount of $1,000. [14] On January 26, Ms. Lu filed a notice of civil claim in the Civil Proceedings naming Mr. Jacques as the defendant. In the notice of civil claim, Ms. Lu asked for essentially the same relief as she had sought at trial, and in her notice of application after the trial before Justice Dley on August 12, 2022 Justice Taylor on December 6, 2022 and Justice Blok on January 23, 2023, with the exception that she now sought criminal law remedies against Mr. Jacques. [15] On March 27, 2023, Ms. Lu filed a notice of application in the Civil Proceedings unilaterally setting a hearing date for April 11, 2023. Ms. Lu also filed an affidavit that included evidence that had already been adduced at trial in the Family Proceeding. The notice of application sought a

number of remedies which had already been addressed in the Trial Reasons, including a protection order, division of property, and life insurance entitlement. The notice of application also sought remedies under the Criminal Code arising from the allegation that Mr. Jacques had perjured himself at trial by denying Ms. Lu's allegations of family violence, including sexual assault of their daughter. [16] On April 25, 2023, Justice Norell dismissed Ms. Lu's application and ordered that Ms. Lu pay costs to Mr. Jacques in the amount of $1,000. Justice Norell stated as follows: It is clear to me that Ms. Lu is simply attempting to relitigate the matters that were before Justice Taylor. She is dissatisfied with his decision. However, she did not appeal that decision. It is a collateral attack on the decision of Mr. Justice Taylor. It is res judicata. [17] On April 26, 2023, Ms. Lu sent an email to Mr. Jacques's lawyer stating: Please provide your available days for the hearing in May. [18] Further, on that same day, Ms. Lu submitted a request to appear to the registry, requesting a judicial management conference hearing before Chief Justice Hinkson. [19] On May 1, 2023, Ms. Lu wrote a "Requisition Letter to Justice Norell" in the civil proceeding seeking "Subject Request": 1 Pursuant to the Supreme Court Civil Rules 5-3: amending previous plan order; requiring amending of pleadings to

provide details of fact, the relief sought, the legal basis on which relief is sought; respecting discovery issues; striking out all the counterclaim of the respondent; any other orders the judge considers will further the object of these Supreme Court Civil Rules; 2 Pursuant to the Supreme Court Civil Rules . . . requiring the court to vary order(s) made to the associated file number(s) of this case if appropriate; [20] In that letter, Ms. Lu also says: I am writing to you for the above Subject Request in order to bring this long time unsolved family matter to an end without another hearing if appropriate. . . . The only reason my application was dismissed at the hearing of April 25 . . . was I tried to relitigate the matter. The above of my Request doesn't require to relitigate the matter . . . [21] On June 13, 2023, Ms. Lu filed a requisition for order without notice in which she seeks: (the Plaintiff/Applicant required the Court to reconsider the order made by your honorable Justice [Norell] on April 25 . . . [and] to vary [them] . . . [22] She relies on evidence from the trial in the Family Proceeding and her notice of civil claim and notice of application from the Civil Proceeding. [23] On June 27, 2023, there was a registry rejection letter that stated: Please note in order to vary a Judge's Order you must file a Notice of Application and attend a court hearing and not

by way of a requisition. [24] I heard this application on July 20, 2023 and advised the parties that I would reserve judgment until the following week, which is this week. Nonetheless, on July 24, 2023, Ms. Lu made an application to court scheduling to schedule another hearing to seek an order that a sheriff be present on the date I deliver my reasons, for the purposes of arresting Mr. Jacques and also to consolidate the two proceedings, which was actually a remedy already sought by Mr. Jacques on his application. [25] Pending the delivery of these reasons, Ms. Lu's application was denied. [26] I now proceed to the legal analysis.

1. Whether the two proceedings should be joined or heard together. [27] Mr. Jacques seeks to have the Family Proceeding and the Civil Proceeding heard together. Ms. Lu consents to this. [28] In Cao v. Chen, 2020 BCSC 2050, Justice Forth set out the applicable test relating to consolidation and hearing proceedings together: [22] Rule 22-5(8) of the Supreme Court Civil Rules gives the court discretion to order the consolidation of proceedings, or to order proceedings to be tried at the same time. [23] The legal test for whether two proceedings should be tried together was set out by Master Shaw in Egan v. ICBC, 2010 BCSC 1042 at paras. 16-19, referring to Merritt v. Imasco Enterprises Inc., 2 C.P.C. (3d) 275, [1992] B.C.J. No. 160 (S.C.). The first question is whether they involve common claims, disputes, and relationships. [24] The second question which must be asked is are they "so interwoven as to make separate trials at different times before different judges undesirable and fraught with problems and expense": Hui v. Hoa, 2012 BCSC 1045 at para.

34. To determine this question the following factors should be considered: a. Whether the order will create a savings in pre-trial procedures; b. Whether there will be a real savings in experts' time and witness fees; c. The potential for a party to be seriously inconvenienced by being required to attend a trial in which they may only have a marginal interest; d. Whether the number of trial days will be reduced if the matters are heard together; e. Whether one of the actions is at a more advanced stage than the other; f. Whether an order will result in a delay of the trial of one of the proceedings and, if so, whether prejudice to a party from delay will outweigh the potential benefits of a combined trial; and g. Whether there is a risk of inconsistent findings. Hui at paras. 34-35; Bhinder v. 170248 B.C. Ltd., 2007 BCSC 805 at para. 3; Merritt at para. 19. [29] The real issue, to paraphrase Merritt v. Imasco Enterprises Inc., 2 C.P.C. (3d) 275, [1992] B.C.J. No. 160 (S.C.), is: will the order make sense in the circumstances? [30] In this case, the Family Proceeding and the Civil Proceeding involve common claims, disputes, and relationships. Indeed, the two proceedings are sufficiently interwoven that the Civil Proceeding can be characterized as essentially a mirror of the Family Proceeding that is clearly intended to substantially relitigate the Family Proceeding. If these proceedings were not heard together, it would therefore raise the risk of inconsistent findings and would create unnecessary cost and waste valuable court time. [31] I conclude that the two matters should be heard together.

2. Whether the Notice of Civil Claim in the Civil Proceeding be struck [32] Mr. Jacques seeks an order that the Civil Proceeding be struck pursuant to Rule 9‑5(1), the relevant portions of which read: (1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that (a) it discloses no reasonable claim or defence, as the case may be, (b) it is unnecessary, scandalous, frivolous or vexatious, . . . or (d) it is otherwise an abuse of the process of the court . . . [33] The test for striking a pleading on the ground that it discloses no reasonable claim has been articulated by the Supreme Court of Canada in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42. A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. [34] In my view, it is plain and obvious that the notice of civil claim should be struck. As noted in Jacques v. Rona Inc., 2020 BCSC 1262, a pleading is frivolous if it is obviously unsustainable. [35] To the extent that the majority of the allegations in the notice of civil claim are allegations that were previously made in the Family Proceeding and dismissed after a trial, these allegations are clearly res judicata and obviously unsustainable. As noted by Justice Norell, these

allegations also represent an impermissible collateral attack on the trial decision. [36] Ms. Lu does raise new allegations not raised at trial with respect to the alleged criminal offences of perjury and sexual assault committed by Mr. Jacques. However, these allegations are also directly related to the Family Proceeding because the sexual assault allegations were addressed in that trial, and the perjury allegations apparently relate to Ms. Lu's allegation that Mr. Jacques lied about these allegations during the trial, thus they are duplicative. [37] Moreoverever, these pleadings are vexatious, as they do not advance a civil claim known in law. If Mr. Jacques had indeed committed criminal offences as alleged by Ms. Lu, the decision whether to lay charges and proceed with a criminal trial is a matter within the discretion of the Crown and not Ms. Lu. Criminal charges do not represent a valid civil cause of action. [38] I conclude that the Civil Proceeding should be struck.

3. Whether Ms. Lu, the claimant in the Family Proceeding and the plaintiff in the Civil Proceeding, should be declared a vexatious litigant. [39] Mr. Jacques seeks to have Ms. Lu declared a vexatious litigant pursuant to s. 18 of the Supreme Court Act, R.S.B.C. 1996, c. 443 which states as follows: 18 If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court. [40] Section 221 of the Family Law Act, S.B.C. 2011, c. 25 also sets out a more narrow basis for an order relating to the misuse of the court process: Misuse of court process 221(1) A court may make an order prohibiting a party from making further applications or continuing a proceeding without leave of the court if satisfied that the party (a) has made an application that is trivial, (b) is conducting a proceeding in a manner that is a misuse of the court process, or (c) is otherwise acting in a manner that frustrates or misuses the court process. (2)If an order is made under subsection (1), the court may do one or more of the

following: (a) make the order apply (i) for a specified period of time, or (ii) until the party has complied with an order made under this Act; (b) impose any terms and conditions respecting the granting of leave to make further applications or to continue a proceeding; (c) require the party to pay (i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the party's actions, including fees and expenses related to family dispute resolution, (ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the party's actions, or (iii) a fine not exceeding $5 000. [41] The discretion conferred by s. 18 was described as a "broad jurisdiction on the court to control of its own process" in Semenoff Estate v. Semenoff, 2017 BCCA 17. [42] Dawson v. Dawson, 2014 BCCA 44 laid out the seven principles from Re Lang Michener and Fabian (1987), 37 D.L.R. (4th) 685 (Ont. H.C.J., per Henry J. at para. 19) that should be applied: (a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding; (b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is

vexatious; (c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights; (d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings; (e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action; (f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; (g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings. [43] In my view, taking into account the above principles and the entire history of this matter, a s. 18 order is clearly justified in this case. It is evident from the history of Ms. Lu's multiple pleadings, court filings, and the correspondence with the court registry and opposing counsel that principles (a) through (d) from Dawson are all evidenced in this case.

In essence, Ms. Lu first sought to pre-empt the delivery of the Trial Reasons on a summary basis after the trial and then, after delivery of the Trial Reasons, she was not satisfied and subsequently sought every opportunity to review or vary the final order in subsequent Supreme Court proceedings. [44] Ms. Lu had the right and the opportunity to appeal to the Court of Appeal. She was advised of this right by the court registry and by me, and she was obviously aware of this right given her past history of multiple appearances in the Court of Appeal in other proceedings. Nonetheless, she chose not to appeal for reasons that are not entirely clear. Having failed in her attempt to overturn the final order by filing notices of application in the Supreme Court, Ms. Lu evidently decided to commence the Civil Proceeding in a blatant attempt to relitigate the trial by other means. This is exactly the situation discussed in principle (d) from Dawson, namely, rolling old issues into new proceedings. [45] Further, to the extent that she has sought to threaten Mr. Jacques with criminal charges and arrest, this is the type of harassing and oppressive conduct addressed in principle (c) from Dawson. All this was clearly apparent to Justice Blok and Justice Norell in dismissing the earlier applications and is now apparent to me. The time for closure in this matter has arrived. The voluminous

binders filed by counsel for Mr. Jacques detail the long history of this matter, are ample evidence of the large amounts of court time and court administration time unnecessarily occupied to respond to Ms. Lu's many repetitive claims and allegations. [46] While every litigant, including Ms. Lu, is entitled to their day in court, this type of vexatious conduct has the effect of wasting precious court resources and infringing on the rights of other litigants acting in good faith to access the courts. [47] I also emphasize that Ms. Lu's actions in this proceeding are unfortunately consistent with a pattern of prior behaviour. Ms. Lu has been declared a vexatious litigant by Supreme Court orders in the unrelated matter of Jacques v. Muir, 2020 BCSC 1258. In Jacques v. Rona Inc., she was also declared a vexatious litigant by the Court of Appeal. [48] Ms. Lu has a longstanding history of this type of conduct discussed in Dawson and has repeatedly demonstrated an unwillingness to respect court orders, including most recently the Trial Reasons and the orders issued therein. [49] Accordingly, my view is that Mr. Jacques' application as set out in paragraphs 6 through 10 of the notice of application should be granted.

4. That Ms. Lu's Certificate of Pending Litigation on the family home be removed, pursuant to the final order set out in the Trial Reasons [50] In the Trial Reasons, I required that upon payment of the sum of $114,370.28 sum from Mr. Jacques minus costs, Ms. Lu immediately remove the CPL registered against the title to the family home. [51] The evidence is that counsel for Mr. Jacques has made the required payment available to Ms. Lu by bank draft since January 31, 2023, but she has initially chosen not to accept the cheque or to release the CPL, despite being advised numerous times by correspondence. Ms. Lu eventually picked up the bank draft on May 2, 2023 but has continued to refuse to release the CPL. She has also refused to settle the final order from trial. [52] Ms. Lu is clearly in breach of the order set out in the Trial Reasons, as the CPL should have been released. I therefore order the release of the CPL forthwith pursuant to ss. 257 and 258 of the Land Title Act, R.S.B.C. 1996, c. 250.

5. Costs [53] Mr. Jacques has been successful on all issues on this application and therefore has met the substantial success threshold. Mr. Jacques will have his costs of the application. [54] In two of the prior applications where Ms. Lu was found to be a vexatious litigant, special costs were ordered against her on a lump sum basis. In Jacques v. Rona Inc., where Ms. Lu also sought perjury and criminal charges in a civil action, the court reasoned as follows: [35] Special costs are awarded where a party has engaged in reprehensible conduct. Some examples of circumstances that meet that threshold are pursuing a meritless claim and being reckless with regard to the truth; making improper allegations of fraud, conspiracy, fraudulent misrepresentation, or breach of fiduciary duty; displaying reckless indifference by not recognizing early on that a claim is manifestly deficient; and presenting a case so weak that it is bound to fail . . . [36] Here, the petitioner has advanced an unnecessary, scandalous, frivolous, and vexatious Petition containing serious allegations of criminal conduct without coming close to disclosing a reasonable claim. The claim as pleaded is manifestly deficient and includes very serious allegations of dishonesty. Although Ms. Jacques is a self‑represented litigant, that does not excuse her conduct or allow her to proceed with impunity. I am satisfied that

it is appropriate to characterize her conduct as reprehensible, as that term is used in the context of an award of special costs. [55] In my view, the same reasoning is applicable on this application. [56] Despite previously being assessed with special costs for alleging criminal conduct without foundation against Rona, she has now repeated the same behaviour against Mr. Jacques, again without foundation, and this time gone so far as to seek an order requiring the sheriff to arrest Mr. Jacques. It is appropriate to once again characterize her conduct as reprehensible to send a clear message that this vexatious pattern should not be repeated. [57] Given the need to put an end to this litigation, a lump sum order of costs is, in my view, appropriate and I order the sum of $4,000 in special costs.

6. That Ms. Lu's approval to the form of the Order on this application be dispensed with. [58] Finally, Mr. Jacques seeks an order that Ms. Lu's approval as to the form of this order on this application be dispensed with. This order is granted. There is a long history of Ms. Lu failing to approve court orders detailed in the submission of counsel for Mr. Jacques, which clearly justifies this order. [59] There will be two orders prepared for the two matters heard together: one for the Family Proceeding and the other for the Civil Proceeding. "M. Taylor J."