Schuetze v. Pyper

2021 BCSC 1620 Schuetze v. Pyper

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Schuetze v. Pyper, 2021 BCSC 1620 Date: 20210818 Docket: S1810941 Registry: Vancouver Between: Katy Schuetze Plaintiff And John [Redacted] Pyper Defendant Corrected Judgment: The text of the judgment was corrected on the front page and at paragraphs 32 and 41-43 on February 14, 2022. Further, these reasons have been redacted for publication purposes to anonymize the names of the parties' children and to redact other information related to their identities pursuant to an order made November 24, 2021. Before: The Honourable Justice Fleming Reasons for Judgment Counsel for the Plaintiff: B.T. Lepin Counsel for the Defendant: W.M. Finch, QC Place and Date of Trial/Hearing: Vancouver, B.C. May 31, June 1-4, 7-11, 28 and 30, July 2 and 5-7, 2021 Place and Date of Judgment: Vancouver, B.C. August 18, 2021 [1] On May 31, 2021, the first day of trial, the defendant John Pyper applied to adjourn the trial generally. The adjournment application was his fourth since January 2021. I dismissed the application with reasons to follow. These are those reasons. Legal Framework [2] The decision to grant or deny an adjournment is discretionary. The paramount consideration is the interests of justice which are addressed by balancing the interests of the parties. Securing a fair trial on the merits of the action is the ultimate goal. In Navarro v.

Doig River First Nation, 2015 BCSC 2173, Justice Dillon observed the courts are "generous rather than overly strict" in granting adjournments, and also identified a number of factors to be considered: 1) the expeditious and speedy resolution of matters on the merits; 2) the reasonableness of the request; 3) the grounds or explanation for the adjournment; 4) the timeliness of the request; 5) the potential prejudice to each party; 6) the right to a fair trial; 7) the proper administration of justice; 8) the history of the matter including deliberate delay or misuse of the court process; and 9) the fact of a self-represented litigant. [3] In discussing the factors, Dillon J. remarked that while simple neglect in preparing for trial will usually lead to an adjournment on the theory that the prejudice to the unprepared party will be greater than prejudice to the party who is ready to proceed, prolonged delay due to tactical considerations may be inexcusable. The fact that a litigant is self-represented is relevant but does not entitle him to a pass. The object is to facilitate as far as is reasonable the ability of a self-represented litigant to fairly present his case on the relevant issues. If counsel is appointed and assumes conduct of a case, he may be required to clear his calendar to facilitate the trial date. Prejudice to the parties must be weighed and balanced. If the

prejudice can be met by conditions on an adjournment, then, it may be granted. Overview [4] Ms. Schuetze is from Germany. After a long distance relationship with Mr. Pyper, she moved to Canada in 2002 and the parties began living together. They married in 2008 and have two children [M] born in [redacted] 2012 and [W] born in [redacted] 2013, now nine and seven [redacted]. [5] In this action, Ms. Schuetze sues Mr. Pyper for damages arising from what she alleges was a particularly violent and vicious assault that occurred at the family home in the presence of the children on September 16, 2018. During the alleged assault, [M] called 911. After police arrived Mr. Pyper was arrested. Ms. Schuetze was taken to [the hospital] by ambulance. [6] Ms. Schuetze filed a notice of civil claim on October 10, 2018 ("NOCC") that alleges the assault resulted in multiple physical and psychological injuries, among them injuries to various and most parts of her body, fractures to her left sinus and nasal spine, a mild traumatic brain injury, post-traumatic stress disorder ("PTSD"), anxiety, fear for her safety and the safety of the children, and a number of symptoms including for example headaches, dizziness/light-headedness, significant sensitivity to loud noises and bright lights, difficulty sleeping and ringing in both ears. [7] Her multiple claims for damages include claims for aggravated and

punitive damages based in part on the allegation that Mr. Pyper previously assaulted her on numerous other occasions, causing a previous concussion(s) and the particularly malicious and remorseless nature of his conduct. [8] In his response to civil claim and counterclaim filed November 16, 2018, Mr. Pyper alleges it was Ms. Schuetze who assaulted him on September 16, 2018 causing him physical and psychological injuries, and in the past. He also alleges she has a history of making false allegations. He too seeks punitive damages on almost identical grounds to those set out in the NOCC. [9] On November 23, 2020, Mr. Pyper pleaded guilty to the offence of assaulting Ms. Schuetze on September 16, 2018. I was advised he was later sentenced to an absolute discharge based on admissions regarding the circumstances of the offence that were agreed to by the Crown and Mr. Pyper, without Ms. Schuetze's involvement. [10] The parties are also involved in a family law proceeding. A ten day trial is scheduled for November 22, 2021. Pending a final decision in that case, the former and current family homes, are subject to an interim restraining order. [11] Mr. Pyper was represented in this proceeding until his original lawyer withdrew in November 2019. [12] In January 2020 he was personally served with the notice of trial. [13] In June 2020, based on disclosures from the children that Mr.

Pyper had left them alone in his home on one occasion and permitted them to kayak on their own while he remained on the shore, Ms. Schuetze notified the Ministry of Child Family Development and withheld the children from Mr. Pyper. [14] Mr. Pyper deposes to becoming emotionally overwhelmed and incapable of responding to anything while they were withheld for "126 days straight". [15] However, Mr. Pyper continued to bring applications in the family proceeding where he has been and remains unrepresented. [16] In early October 2020, Mr. Pyper applied for a number of interim orders in the family proceeding related to parenting including 50/50 parenting time, compensatory parenting time based his allegation Ms. Schuetze had wrongfully denied it, and conducts orders. He also alleged alienation by Ms. Schuetze. [17] The hearing of his application proceeded over five days before Justice Winteringham. In the unreported oral reasons delivered on November 6, 2020 (Pyper v. Pyper (6 November 2020), Vancouver E162647 (B.C.S.C.), she found that Ms. Schuetze had not wrongfully denied Mr. Pyper parenting time, satisfied she was justified in withholding the children while she did. Justice Winteringham also found that once Ms. Schuetze tried to reinstate Mr. Pyper's parenting time, he was responsible for not seeing them. Addressing the dispute over physical violence, Winteringham J. considered

Mr. Pyper's admission to an assault of Ms. Schuetze on September 16, 2018, and rejected his description of the circumstances. Without resolving historical allegations of family violence, she concluded Ms. Schuetze had been significantly impacted by the nature of her relationship with Mr. Pyper, including by physical violence, to the point where she had been and remained fearful of him; and Ms. Schuetze's level of fear impacted her ability to communicate with him and manage a "very complicated relationship" (at para. 93). Justice Winteringham also accepted that the impact of violence had resulted in an unequal balance of power, and Mr. Pyper often exhibited controlling behaviour that limited Ms. Schuetze's ability to engage with him in the shared parenting regime that he envisioned. Further, she refused to make a finding of alienation absent expert evidence. [18] Mr. Pyper's queries and comments set out at the end of the oral reasons, demonstrate among other things, his sophistication and persistence as a litigant. [19] Not long after, Mr. Pyper brought his first application to adjourn this trial. On January 8, 2021, Master Elwood dismissed it (the unreported oral reasons for judgment in Schuetze v. Pyper (8 January 2021), Vancouver S1810941 (B.C.S.C.), along with a request to adjourn the discovery dates the Master had previously set. Addressing his refusal to adjourn the trial,

the Master wrote: Paragraph 12 seeks an adjournment of the jury trial set to commence in May of 2021. First, I would note that pursuant to the Chief Justice's directions, any trial in May 2021 will be by judge alone. In my view, it is premature for an application to adjourn the trial. There is five months between now and the scheduled trial date. The plaintiff alleges serious injuries and serious psychological symptoms. It in the interests of both parties that this litigation be resolved. I do not see any ground at this time to adjourn the trial. It is my view that the parties require closure on this litigation, and the only way to do that is to proceed with the trial. It would of course be good if the defendant had counsel for the trial. But he has known about this trial date since last January and, in my view, based on the current materials, there is no grounds for an adjournment. That is not to say that Mr. Pyper cannot apply closer to the trial date; but it is my view it is very important for this matter go to trial as scheduled. [20] On February 26, 2021, Ms. Schuetze applied for orders prohibiting Mr. Pyper from personally examining her for discovery or cross-examining her at the trial, and an order requiring him to retain counsel for those purposes. [21] In unreported reasons, Shuetze v. Pyper (26 February 2021), Vancouver S1810941 (B.C.S.C.), Justice Basran observed the

context for the application was alleged family violence, most notably the assault on September 16, 2018, resulting in significant alleged injuries to Ms. Schuetze. He reviewed aspects of the expert report of neuropsychologist Dr. Mead Westcott which I have also received. She opines that Ms. Schuetze developed PTSD as a direct result of the assault on September 16, 2018, which also exacerbated a pre-existing major depressive disorder and caused somatic symptom disorder. Dr. Mead Westcott also expresses the opinion that safety from Mr. Pyper is crucial to her psychological recovery however treatment is challenging because this cannot realistically be guaranteed. She comments Ms. Schuetze may do best if she and the children were to relocate to Germany on a semi-permanent basis. [22] Justice Basran also referred Winteringham J.'s findings of family violence and affidavit evidence from Ms. Schuetze expressing fear of Mr. Pyper including a fear of being in his presence. [23] Although Mr. Pyper had not filed response materials, during the hearing he was permitted to refer to the sentencing decision and the agreed statement of facts in the criminal proceeding, which he did extensively. [24] Justice Basran concluded it would be inappropriate to permit Mr. Pyper to examine Ms. Schuetze at a discovery himself, and ordered him to retain counsel for that purpose. He declined however to make

the same order regarding cross-examination at the trial, instead deferring that decision to the trial judge: However, I note that the trial judge, when faced with this application, may choose to make an order similar to the one I have made here today in respect of the examination for discovery. If that happens, Mr. Pyper will require counsel to cross-examine Ms. Schuetze at trial. I mention this not to prejudge the determination that the trial judge will make on this issue, but to encourage Mr. Pyper to consider retaining counsel, on a limited retainer if necessary, to conduct cross-examination so that he is prepared to proceed. He should be preparing to proceed on May 31. The trial date is scheduled and given that this application taking place on February 26th, the parties are well aware that the trial is coming up and should be planning accordingly. [25] After the hearing before Basran J. there were two trial management conferences in March 2019. The first, held on March 9, 2021, was adjourned to March 29, 2021 at Mr. Pyper's request because he wished to retain counsel. Justice E. MacDonald also ordered him to file and serve his trial brief prior to that date, which I understand has still not occurred. On March 29, 2021, she refused his request to adjourn the TMC again and instead made a variety of orders regarding the conduct of the trial, including an order requiring the

parties to exchange particulars of any objections to expert reports by April 9, 2021, for reports served by the 84 day deadline and otherwise April 30, 2021. [26] On April 21, 2021, Master Elwood dismissed Mr. Pyper's second application to adjourn the trial (unreported decision, Schuetze v. Pyper (21 April 2021), Vancouver S1810941 (B.C.S.C.). In his reasons, he noted the application was brought less than a month before the trial date. Although Mr. Pyper said he needed time to obtain his own expert reports, he had no plan to do so. The Master observed the timelines for expert reports under the Rules were there to ensure cases are ready for trial as scheduled and self-represented litigants are not entitled to a pass on the requirements for trial preparation, citing Navarro at para.

27. At para. 16, he stated, "Mr. Pyper may have an argument for an extension of time to file responding reports but his request to adjourn the trial generally so that he can now begin to investigate possible expert reports, is, in my view neither reasonable nor timely." [27] Mr. Pyper had also argued he required time to obtain and make use of medical records relating to palate surgery Ms. Schuetze underwent in 2006 to 2009. On March 30, 2021, she had been ordered to make inquiries about and produce the records if they existed. Master Elwood concluded the trial should not be adjourned to wait for these records, describing their importance to the issues as pure speculation. More importantly, he observed that Mr. Pyper ought to have applied for historical medical records on proper evidence earlier if they were in fact so central to his defence. His first application for these same records was dismissed based on a lack of evidence. [28] Mr. Pyper also sought the adjournment so that a lawyer named John Whyte could represent him. According to Mr. Pyper, Mr. White had agreed to represent him if the trial was adjourned. Noting Mr. White had not provided any evidence himself, Master Elwood commented: "[t]he accuracy of Mr. Pyper's statements to opposing counsel and the court have been problematic across these applications." He also commented that Ms. Schuetze's counsel had encouraged

Mr. Pyper to retain counsel after his previous counsel withdrew in November 2019, and the reasons of Basran J. specified that Mr. Pyper should be preparing to proceed on May 31, 2021. [29] Again citing Navarro and acknowledging it is preferable for a defendant to be represented by counsel, at paras. 29 and following the Master wrote: Mr. White should be asked to clear his calendar, and if he cannot, Mr. White is not the only lawyer in Vancouver. Moreover, what seems to be at the heart of Mr. Pyper's difficulties (retaining counsel) is, he says, his ability to afford counsel. I am not convinced. In 2019, Mr. Pyper reported income of $241,000. In April 2021, Mr. Justice Mayer found no reason to change Mr. Pyper's imputed current income of $185,000 per year. [30] Master Elwood went on to find that Mr. Pyper had had adequate time and resources to retain counsel to represent him in the trial as scheduled. He concluded that the prejudice to Mr. Pyper in proceeding to trial without counsel was overwhelmingly overridden by the prejudice to Ms. Schuetze from an adjournment, assessing the prejudice to her, reasoning as follows: [11] This is a family violence case. The plaintiff deposes to the proceedings and the manner in which they have been conducted by the defendant have affected her profoundly, physically and psychologically. The evidence, including expert evidence demonstrates a

need on a human level to reach a final resolution in this case and for the parties to go their separate ways following a related family law trial in November of 2021. [12] There are currently no trial dates available in Vancouver. On May 3, trial dates will open up dates for November 2022. It may not be possible to obtain a new trial date on that day, in which case dates will be opened up in June for a trial in December 2022, and so on. In other words, the this trial is adjourned, it will not come to trial until late 2022, at the earliest. I this is a substantial and prejudicial delay in this context. [13] Further, the plaintiff is concerned that, one family property is divided in the family law trial and the current s. 91 restraining order is removed, the defendant will dissipate assets against which she could realize on a judgment in this case. I find this is an additional prejudice to the plaintiff in the trial is adjourned to late 2022. [31] Mr. Pyper was examined for discovery the next day, April 22, 2021. Mr. White conducted his examination for discovery of Ms. Schuetze on May 3 and 4, 2021. [32] On May 6, 2021, Mr. Pyper appealed Master Elwood's decision refusing to adjourn the trial. At his request, the appeal was adjourned from May 17 to May 20, 2021, when it was dismissed by Justice Duncan in her unreported reasons, Shuetze v. Pyper (21 May 2021), Vancouver S1810941

(B.C.S.C.). Her reasons specify that Mr. Pyper asserted only a select few lawyers in Vancouver had sufficient expertise to assist him in this case, which she viewed as "wildly inaccurate" and "likely offered as an explanation for why Mr. Pyper has effectively sat on his hands and not attempted to retain counsel for the personal injury trial". She observed that he similarly spoke at length about the need for senior and experienced counsel, how difficult it was for him to find someone to act for him, and how unfair it was to expect him to proceed without counsel. [33] Justice Duncan concluded Mr. Pyper had failed to demonstrate the Master's refusal to adjourn the trial was clearly wrong and in fact the equities were not in his favour. Writing there was clearly prejudice to both parties, she concluded Mr. Pyper had done essentially nothing in a timely fashion to retain counsel and had instead spent a lot of time in court on a variety of applications. [34] Her reasons also address her dismissal of Mr. Pyper's third adjournment application. Satisfied it was brought on essentially the same basis as the April 21, 2021 application, Duncan J. decided that allowing it to proceed was not in the interests of justice and would constitute an abuse of the court's process. Justice Duncan also prohibited Mr. Pyper from making another adjournment application before the start of the trial on May

31, 2021. [35] On May 27, 2021, Mr. Pyper retained Martin Finch, Q.C. to represent him in this proceeding. [36] In support of Mr. Pyper's fourth adjournment application, Mr. Finch relied on Mr. Pyper's affidavit made May 31, 2021, other affidavit evidence, notices of application for short leave and the adjournment and written submissions, all skilfully prepared. [37] Mr. Finch argued the trial should be adjourned because he had not had sufficient time to prepare. As a result, he asserted, Mr. Pyper faced grave prejudice, risking as it did an unjust determination of the issues. At the same time, Mr. Finch suggested the prejudice to Ms. Schuetze was limited and could be remedied by a cost award, given the trial has not been adjourned before. Mr. Finch also emphasized there was insufficient trial time, a police witness Ms. Schuetze intended to call was not available, she had taken no procedural steps until 2021, and due to the convergence of the family, criminal and civil proceedings and Mr. Pyper's ignorance, he became overwhelmed and did not make adequate efforts to retain counsel for trial. On this last point, Mr. Finch specified that until December 2020 Mr. Pyper erroneously supposed Ms. Schuetze's civil claim was either not being seriously advanced or the criminal sentencing resolved the issues in some significant way. [38] In addition to deposing, he was emotionally

overwhelmed and incapable of responding to anything starting in June 2020, Mr. Pyper describes his efforts to retain a particular lawyer to act for him in this proceeding starting August 19, 2020 who advised him in October 2020 that he was leaving the profession and then another lawyer in November 2020. [39] In addition to Navarro, Mr. Pyper relies on A.A.A.M. v. Provincial Director of Adoption, 2017 BCSC 1878, where the claimant was a self-represented litigant who retained counsel to apply for an adjournment five days before the trial. The trial had already been adjourned once before. In granting the adjournment Justice Choi observed: Mr. M has exercised his right to retain new counsel very late in the day. I agree with the Director that Mr. M has shown little interest or expedition in moving this case to trial. He had ample time to find new counsel and arrive prepared for the hearing That said, I am mindful of Mr. M's status as unrepresented litigant operating in a second language. In light of the Supreme Court of Canada's guidance in Pintea v. Johns, 2017 SCC 23, I am prepared to grant his application on a number of conditions. [40] Of course Mr. Pyper is no longer self represented, nor is he operating in a second language. [41] In opposing an adjournment, Ms. Schuetze makes the same arguments described in the reasons of Master Elwood about the prejudice to her should the

trial be delayed. As indicated she relies on the report of Dr. Mead Wescott, as well as her affidavits made February 16 and March 26, 2021, the reasons of Master Elwood, Basran J. and Winteringham J. and a summary of the oral reasons of Duncan J., later followed by a transcript. [42] Ms. Schuetze deposes that she had been profoundly affected physically and psychologically by Mr. Pyper's alleged violence and has a pressing need for resolution and to leave "this behind me as much as possible". She alleges she continues to fear that he will physically attack her or even kill her, given the opportunity, and her fear has intensified in response to her counsel taking steps in the litigation which could affect Mr. Pyper financially, including for example, serving him with the expert report of economist Darren Benning in support of her claim to past and future loss of earning capacity. According to Ms. Schuetze she is also impacted psychologically because Mr. Pyper continues to harass and lie about her, which she particularizes in some detail. Similarly, she also outlines his alleged attacks upon and lies about her counsel that have included making false statements to the Law Society and the Court about what she has said or done. [43] In addition, Ms. Schuetze continues to express a significant concern about receiving a "dry judgment" if the civil trial were to occur after the family

trial, arguing that once Mr. Pyper receives his share of the family property, she expects he will take the steps necessary to ensure his assets are out of reach. Responding to his previous affidavit evidence that he had essentially no funds in his bank account, Ms. Schuetze alleges he had moved the money elsewhere, being not only dishonest but a high income earner. Mr. Pyper is an accountant with an MBA. His income tax returns show he who has consistently earned a high T4 income, which in 2019 was approximately $240,000. Ms. Schuetze further alleges that Mr. Pyper has manufactured some of the emails and texts that he has produced in this proceeding which she particularizes. She also relies on a news report regarding a decision of the Securities Commission dated March 31, 2000 which concluded Mr. Pyper had contravened the "front running" prohibition in the Securities Act, R.S.B.C. 1996, c. 418, and the panel did not believe his evidence including assertions that others had lied. [44] Mr. Finch made no submissions about when the trial could be rescheduled. Nor did he suggest he was unavailable for these dates or that Mr. Pyper required time to obtain expert evidence, in response to Ms. Schuetze's expert reports or in support of his counterclaim. Ms. Schuetze deposes to her counsel being advised there are no dates available for a 10 day trial until the fall of 2022 and most likely

2023 or 2024, based on unsuccessful attempts by her office to book another 10 day trial. Discussion [45] Balancing the interests of the parties, and recognizing a fair trial on the merits is the ultimate goal, I am firmly of the view that the trial should not be adjourned. Based on all of the circumstances, I reject the suggestion Mr. Pyper was unable, either for emotional reasons or due to any lack of understanding to prepare for this trial or retain available counsel. It is apparent Mr. Pyper is not only well educated and intelligent, he is also very capable and strategic. I am satisfied he deliberately delayed retaining a lawyer to represent him at the trial for the purpose of delaying or avoiding the trial. [46] His actions and deliberate inaction are well beyond the mere neglect discussed in Navarro. While such conduct should always be discouraged, this is especially important in a case like this one where serious family violence and serious psychological injuries are alleged and a prompt resolution may well be necessary to avoid prolonging or exacerbating those injuries and symptoms. [47] I also accept there is a risk any judgment that may be awarded will not be paid. This is not an insurance defended claim. Mr. Pyper faces the prospect of having to pay a significant judgment himself. His professional qualifications and work history indicate he would have the means to

avoid doing so. For the purpose of this application only, I have also considered the concerns expressed by Master Elwood and to some extent Justice Winteringham regarding Mr. Pyper's credibility, but not the news report. The availability of a post judgment enforcement proceeding offers a poor remedy bearing in mind the psychological cost of further litigation. [48] I conclude, in other words, given the nature and seriousness of the alleged wrongdoing, significant family violence, the seriousness of the alleged psychological injuries and ongoing symptoms, including but not limited to Ms. Schuetze's stated fear for her safety and fear in Mr. Pyper's presence, as well as the timing of the upcoming family trial, this case requires urgent resolution. [49] Most importantly, I am not concerned that Mr. Pyper will suffer any meaningful prejudice if the trial proceeds now. Mr. Finch is a very experienced lawyer. Contrary to his submissions, this is not a factually or legally complicated case. He has had five days to prepare. I have no doubt that Mr. Pyper is very familiar with all aspects of the case, including Ms. Schuetze's discovery and affidavit evidence, as well as the reports of her experts. His in-depth understanding of the evidence will facilitate Mr. Finch's. Appreciating aspects of Mr. Pyper's defence and his own counter claim may require some investigating, as outlined, I do

not anticipate this will be time consuming. Furthermore, I am prepared to proceed flexibly and accommodate Mr. Finch should he need time to prepare at any particular stage, recognizing his recent retainer. I say this agreeing with his submission that 10 days is not likely to be sufficient and a continuation will be necessary, which must be scheduled to ensure a decision can be provided both as soon as possible and in advance of the family trial. [50] Accordingly, I dismiss Mr. Pyper's application for an adjournment. I also adjourn Ms. Schuetze's application for increased costs payable immediately. "Fleming J."