Court of Appeal for British Columbia

Citation:

R.
          v. L'Espinay,

2008
          BCCA 20

Date: 20080118

Docket: CA033817

Between:

Regina

Respondent

And:

Eric
    Claude LEspinay

Appellant

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Huddart

The
          Honourable Mr. Justice Chiasson

E.
          C. LEspinay

Appellant appearing In Person

F.
          Lacasse

Counsel for the Respondent,
Public Prosecution Service of Canada

Place
          and Date of Hearing:

Vancouver, British Columbia

14 November 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

18 January 2008

Written
          Reasons by:

The
          Honourable Madam Justice Huddart

Concurred
          in by:

The
          Honourable Chief Justice Finch
The Honourable Mr. Justice Chiasson

Reasons
    for Judgment of the Honourable Madam Justice Huddart:

[1]

M. LEspinay appeals his conviction on charges of trafficking in cannabis
    resin, possession of cannabis resin for the purpose of trafficking, and possession
    of marihuana for the purpose of trafficking.

At trial in Provincial Court, the appellant sought an
    order that the trial court or the Crown provide transcripts of the proceedings
    pursuant to
ss. 530.1, 540(6)
    and 603
of the
Criminal Code
,

R.S.C. 1985, c. C‑46
.

The application was refused.  An order
    was made for a division of this Court to hear the transcript issues, in advance
    of a hearing on the merits of the conviction appeal.

[2]

The essence of the appeal on the transcript issues is that the trial
    judge erred in her interpretation of ss. 530.1, 540(6) and 603 of the
Criminal
    Code
.  The appellant considers that these sections require the evidence
    of the witnesses for the prosecution be transcribed and that he be entitled
    to inspect the transcripts.  Additionally, the appellant submits, the trial
    judges failure to require the court administrators to make a written transcript
    violated his rights under ss. 11(d) and 15 of the
Canadian Charter of Rights and Freedoms
.  Finally, he asks this Court to order the
    making of a written transcript of the evidence, pursuant to s.682(2) of the
Criminal Code
, before he is required to prosecute his appeal
    on other grounds.

The Privilege of Audience to Mr. Parsons

[3]

At the commencement of this appeal, M. LEspinay appeared in person
    and, asked to be represented on the hearing of his appeal by David Parsons
    who is not a lawyer.  The Crown opposed this request, and asked the Court
    for directions that Mr. Parsons not be granted the privilege of audience.

[4]

We were told that Mr. Parsons, the proposed agent, spoke only English
    and would have addressed us in English.  M. LEspinays trial in Provincial
    Court was conducted in French, as that is his first language.  Arrangements
    were made for an interpreter to be present in this Court so that M. LEspinay
    could address this Court in French if he wished.  It was evident from speaking
    with M. LEspinay that he is an educated, intelligent and articulate young
    man well capable of expressing himself in both English and French.  A translation
    of the submissions into French for M. LEspinay would have been unnecessary,
    time consuming and counterproductive to the effective and efficient hearing
    of the appeal.

[5]

However, the Crown did not oppose Mr. Parsons appearance as agent
    on the basis of any concerns over language use or translation.  Rather, the
    Crown opposed Mr. Parsons acting as agent because it said it would not be
    in the interests of justice for him to do so.  The Crown put before us materials
    which show that Mr. Parsons has, in the past, demonstrated contempt for the
    courts and the judicial system, and that he lacks a proper understanding of
    the courts processes.  By his own statements, he has attempted to goad the
    courts into citing him for contempt.

[6]

The Court has a discretion whether to hear representations for a party
    by a person who is not authorized to act as counsel under the
Legal
    Profession Act
, S.B.C. 1998, c.9.  In
Venrose Holdings Ltd.
    v. Pacific Press Ltd.
(1978), 7 B.C.L.R. 298 (C.A.), Mr. Justice McIntyre
    for the Court said at 304:

[T]he
    courts as masters of their own proceedings must retain a discretion whether
    to hear from time to time in the course of the dispatch of their business
    such persons other than barristers as they may consider should be heard in
    the interests of justice.  The court in its discretion may grant a privilege
    of audience to such persons in any case where it deems it necessary or proper
    and deny it in other cases.  This, no doubt, is a power which should be exercised
    rarely and with caution, and it is one the courts will be zealous to preserve.

See also
R. v. Dick
, 2002 BCCA 27 and
R.
    v. Romanowicz
(1999), 124 O.A.C. 100; 138 C.C.C. (3d) 225 (C.A.).

[7]

It is evident that Mr. Parsons has his own agenda to pursue that
    would be inconsistent with a full, fair and effective representation of M.
    LEspinays interests on this appeal.  In addition to being unnecessary and
    inconvenient for the reasons relating to the language question, it was not
    in the interests of justice to permit Mr. Parsons to act as the appellants
    agent on the appeal.  For these reasons, we denied him the privilege of audience.

Facts

[8]

The incident giving rise to the charges against the appellant took
    place on 30 June 2004 on Salt Spring Island.  The hearing of evidence
    at the trial began on 24 January 2006.  At the beginning of the trial, M.
    LEspinay filed a notice of motion seeking an order that the audio recording
    of the evidence of the witnesses for the Crown be transcribed so that he might
    verify it before entering on his defence.  The trial judge dismissed that
    application as premature because the witnesses had not yet given their evidence.

[9]

M. LEspinay again
    asked the court to provide, under s. 540(6) of the
Criminal Code
,
    a transcription of the evidence given by the Crowns witnesses.  He also
    sought an adjournment until he received those transcripts.  The trial judge
    dismissed the application.  She reasoned that M. LEspinay took notes at the
    trial and never asked the Crown, a witness or the interpreter to repeat anything
    to him.  She held that the
Criminal Code
does not give an accused
    the right to a written transcript during the trial.  M. LEspinay was provided
    with the necessary forms to obtain a written transcript, and his further application
    to have the court complete the forms was dismissed.

[10]

After the trial judge
    ruled on the
voir dire
and admitted the evidence of the Crowns witnesses,
    M. LEspinay sought an adjournment so he might obtain an order for
mandamus
directing the trial judge or the Attorney General to make available a written
    transcript for his inspection.  The application for an adjournment was refused.
    M. LEspinay then made another application for the court to provide a transcript.
     M. LEspinay did not want to use the services of the private company indicated
    on the forms.  The trial judge dismissed his application.  She held that ss.
    572 and 603 of the
Criminal Code
were not relevant and that
    s. 530.1 of the
Criminal Code

did not give the accused a right
    to receive a transcript during the trial nor an adjournment to obtain that
    transcript.

[11]

Although M. LEspinay
    could listen to the audio recording or obtain a copy of the audio recording
    from the Provincial Court Registry at nominal cost, M. LEspinay did neither,
    nor has he since.  When the adjournment was refused, he entered no defence
    to the indictment because, he says, he wished to pursue the transcript issues
    in this Court.

Discussion

(a)
Section 540(6
)

[12]

M. LEspinay was tried in the Provincial Court for indictable offences
    under s. 5(4) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c.19 the trial of which is, by
Criminal Code
s. 553(c)(xi),
    within the absolute jurisdiction of a Provincial Court Judge.  Section 557
    incorporates other, more broadly applicable provisions, into absolute jurisdiction
    trials (
R. v. Reimer
(1959), 30 W.W.R. 92 (B.C.C.A.)); it provides:

If
            an accused is tried by a provincial court judge or a judge of the
            Nunavut Court of Justice in accordance with this Part, the evidence
            of witnesses for the prosecutor and the accused must be taken in accordance
            with the provisions of Part XVIII, other than subsections 540(7) to
            (9), relating to preliminary inquiries.

Lorsquun prévenu est jugé par un juge de la cour provinciale
            ou, au Nunavut, un juge de la Cour de justice en conformité avec la
            présente partie, les dépositions des témoins à charge et à décharge
            sont recueillies selon les dispositions de la partie XVIII relatives
            aux enquêtes préliminaires, à lexception des paragraphes 540(7) à
            (9).

[13]

The appellant argues that one of the provisions incorporated by s.557
    is s.540(6) which provides:

(6)
            Where, in accordance with this Act, a record is taken in any proceedings
            under this Act by a sound recording apparatus, the record so taken
            shall, on request of the justice or of one of the parties, be dealt
            with and transcribed, in whole or in part, and the transcription certified
            and used in accordance with the provincial legislation, with such
            modifications as the circumstances require mentioned in subsection
            (1).

(6)        Lorsque, en conformité avec la présente
            loi, on a recours à un appareil denregistrement du son relativement
            à des procédures aux termes de la présente loi, lenregistrement ainsi
            fait est utilisé et transcrit, en totalité ou en partie, à la demande
            du juge de paix ou de lune des parties, et la transcription est certifiée
            et employée, avec les adaptations nécessaires, conformément à la législation
            provinciale mentionnée au paragraphe (1).

[14]

The starting point for this Courts analysis of the issues M. LEspinay
    raises must be the decision of the Supreme Court of Canada in
Collinge
    v. Gee
, [1968] S.C.R. 948, affg
(1968),
    64 W.W.R. 321
(B.C.C.A.).  In that case, the accused was
    tried for the indictable offences of fraud and false pretences, on his own
    election, by a Provincial Court Judge.  The issue was whether the
Criminal
    Code
,
the
Canadian Bill of Rights
,

S.C.1960,
    ch. 44, or article 29 of the
Magna Carta
obliged the court reporter
    to transcribe the proceedings, to make such transcription available to the
    inspection of the convicted person or his agent and to supply such transcript
    free of charge to the convicted person or his agent.  This Court dismissed
    the applications.  The Supreme Court of Canada affirmed that order in brief
    oral reasons.  Cartwright C.J. said simply:

We are all of opinion that when s. 471 [now s.557] of the
Criminal
    Code
, 1953-54, ch. 51, directs that the evidence of witnesses for the
    prosecutor and the accused shall be taken in accordance with the provisions
    of Part XV [now Part XVIII] relating to preliminary inquiries it refers to
    and incorporates,
mutatis mutandis
, s. 453 [now s.540] (1)(a) and (b)
    and none of the other subsections of that section.

[15]

The wording of s. 540(6) has not changed materially since it was excluded
    from absolute jurisdiction trials by the decision in
Collinge
.
    The insertion of the words on request of the justice or of one of the parties
    into s. 540(5) and (6) (by S.C. 1997, c.18, s. 65(2)) removed any possibility
    of an inference that the transcription of a sound recording into writing was
    obligatory.  Their insertion also makes clear that provincial legislation
    applies to any request for a transcription of the original recording.

[16]

However, in 2002, additional subsections (7)-(9) were added to follow
    s. 540(6) (S.C. 2002, c.13, s. 29).  These new subsections allow information
    that would not otherwise be admissible to be admitted in certain circumstances
    during a preliminary inquiry.  At the same time, s.557 was correspondingly
    amended to exclude these new subsections from trials within the absolute jurisdiction
    of a Provincial Court Judge (S.C. 2002, c.13, s. 35).  Therefore, s. 557 now
    contains specific exclusions that were not present at the time of the decision
    in
Collinge
. On the interpretive principle of
expressio
    unius est exclusio alterius
it
    might be suggested all other subsections apply to absolute jurisdiction trials.
     But that would be to ignore the words of s. 557.  They incorporate only the
    provisions of s. 540 that deal with the taking of evidence.  The specific
    exclusion of ss. 540(7)-(9) ensures the same interpretation as in
Collinge
.
     Only s. 540(1)(a) and (b) apply to trials within the absolute jurisdiction
    of a Provincial Court Judge.

(b)
Section 603

[17]

M. LEspinay also relies upon
Criminal Code

s. 603 which
    provides that the accused is entitled to a copy of the evidence on payment
    of a reasonable fee; s. 603 states:

An
            accused is entitled, after he has been ordered to stand trial or at
            his trial,

(a)
            to inspect without charge the indictment, his own statement, the evidence
            and the exhibits, if any; and

(b)
            to receive, on payment of a reasonable fee determined in accordance
            with a tariff of fees fixed or approved by the Attorney General of
            the province, a copy

(i)   of the evidence,

(ii)  of his own statement, if any, and

(iii) of the indictment;

but
            the trial shall not be postponed to enable the accused to secure copies
            unless the court is satisfied that the failure of the accused to secure
            them before the trial is not attributable to lack of diligence on
            the part of the accused.

Un
            accusé a droit, après quil a été renvoyé pour subir son procès ou
            lors de son procès:

(a)    dexaminer sans frais lacte daccusation, sa
            propre déclaration, la preuve et les pièces, sil en est;

(b)    de recevoir, sur paiement dune taxe raisonnable,
            déterminée daprès un tarif fixé ou approuvé par le procureur général
            de la province une copie:

(i)         de la prevue,

(ii)        de sa proper déclaration, sil en est,

(iii)       de lacte daccusation;

toutefois, le procès ne peut être remis pour permettre
            à laccusé dobtenir des copies, à moins que le tribunal ne soit convaincu
            que le défaut de laccusé de les obtenir avant le procès nest pas
            attribuable à un manque de diligence de la part de laccusé.

[18]

Section 603 applies to a trial within the absolute jurisdiction of
    a Provincial Court Judge by virtue of s. 572 of the
Criminal Code
which
    reads:

The
            provisions of Part XVI, the provisions of Part XVIII relating to transmission
            of the record by a provincial court judge where he holds a preliminary
            inquiry, and the provisions of Parts XX and XXIII, in so far as they
            are not inconsistent with this Part, apply, with such modifications
            as the circumstances require, to proceedings under this Part.

Les
            dispositions de la partie XVI, les dispositions de la partie XVIII
            relatives à la transmission du dossier par un juge de la cour provinciale,
            lorsquil tient une enquête préliminaire, et les dispositions des
            parties XX et XXIII, dans la mesure où elles ne sont pas incompatibles
            avec la présente partie, sappliquent, compte tenu des adaptations
            de circonstance, aux procédures prévues à la présente partie.

[19]

The Court may keep a record of the proceedings by deposition or by
    the use of a sound recording apparatus as set out in s. 540(1)(b) (which is
    applicable to absolute jurisdiction offences by virtue of s. 557); s. 540(1)(b)
    states:

(1)
            Where an accused is before a justice holding a preliminary inquiry,
            the justice shall

[]

(b)
            cause a record of the evidence of each witness to be taken

(i)  in legible writing in the form of a deposition, in Form 31, or
            by a stenographer appointed by him or pursuant to law, or

(ii)  in a province where a sound recording apparatus is authorized
            by or under provincial legislation for use in civil cases, by the
            type of apparatus so authorized and in accordance with the requirements
            of the provincial legislation.

(1)
            Lorsque le prévenu est devant un juge de paix qui tient une enquête
            préliminaire, ce juge doit:

[]

b)   dautre part, faire consigner la déposition de
            chaque témoin:

(i)  soit par un sténographe nommé conformément à la
            loi ou quil nomme ou dans une écriture lisible sous forme de déposition
            daprès la formule 31,

(ii) soit, dans une province où lutilisation dun
            appareil denregistrement du son est autorisée par ou selon la loi
            provinciale dans les causes civiles, au moyen du type dappareil ainsi
            autorisé et conformément aux prescriptions de la loi provinciale.

[20]

In British Columbia the use of a sound recording apparatus is authorized
    by the
Sound Recording Regulations
,

B.C. Reg.
249/78

made under
    the authority of s. 19 of the
Evidence Act
, R.S.B.C. 1996, c.
    124.

[21]

When the proceeding is recorded by a sound recording apparatus, this
    original recording is the record of the proceeding a Provincial Court Judge
    is required to keep by s. 624(2) of the
Criminal Code
.  This
    sound recording is the record of the evidence an accused is entitled to inspect
    under s. 603(a) of the
Criminal Code
and to which he entitled
    to a copy under s. 603(b) upon payment of such reasonable fee as the Attorney
    General may fix or approve.  The result of this interpretation is that M.
    LEspinay may listen to the audio recording, obtain a copy of the audio recording
    in accordance with the practice of the Provincial Court, or request that an
    authorized reporter transcribe some or all of the recording into writing in
    accordance with s. 2.2(3) of the
Official Reporters Regulation
,
    B.C. Reg. 245/2001.  But M. LEspinay is not entitled to a written transcript
    of the proceedings under s. 603.

(c)
Section 530.1

[22]

The more difficult question is whether s. 530.1 of the
Criminal
    Code
gives an accused who obtains an order for a bilingual trial under
    s. 530, as M. LEspinay did in this case, an additional right not otherwise
    available to all accused persons under the
Criminal Code
.  Section
    530.1(g) provides:

Where
            an order is granted under section 530 directing that an accused be
            tried before a justice of the peace, provincial court judge, judge
            or judge and jury who speak the official language that is the language
            of the accused or in which the accused can best give testimony,

[]

(g)

the record of proceedings during the preliminary inquiry or
            trial shall include

(i)       a transcript of everything that was said during those proceedings
            in the official language in which it was said,

(ii)       a transcript of any interpretation into the other official
            language of what was said, and

(iii)      any documentary evidence that was tendered during those
            proceedings in the official language in which it was tendered;

Lorsquil
            est ordonné, sous le régime de larticle 530, quun accusé subisse
            son procès devant un juge de paix, un juge de la cour provinciale,
            un juge seul ou un juge et un jury qui parlent la langue officielle
            qui est celle de laccusé ou la langue officielle qui permettra à
            laccusé de témoigner le plus facilement:

[]

(g)   le dossier de lenquête préliminaire et celui
            du procès doivent comporter la totalité des débats dans la langue
            officielle originale et la transcription de linterprétation, ainsi
            que toute la preuve documentaire dans la langue officielle de sa présentation
            à laudience;

[23]

The difficulty derives from an apparent difference between the French
    and English versions of s. 530.1(g).  The English version provides that the
    record of proceedings  shall include (i) a transcript of everything that
    was said  in the official language in which it was said, and (ii) a transcript
    of any interpretation into the other official language of what was said in
    addition to the documentary evidence  in the official language in which
    it was tendered.  The more succinct French version provides that the record
    of proceedings doivent comporter la totalité des débats dans la langue officielle
    originale et la transcription de linterprétation as well as the documentary
    evidence.

[24]

M. LEspinay submits that s. 530.1(g)(i) requires the Court to have
    a written transcript of everything said at the trial in order to complete
    the record of proceedings.  He says this requirement makes sense because a
    written transcript is particularly important in a bilingual trial where an
    accused will want to ensure any interpretation was accurate, something more
    easily accomplished by comparing written versions than by listening to an
    audio recording.

[25]

The respondents position is that s. 530.1 simply adapts the requirements
    generally applicable to trials and preliminary inquiries to the circumstances
    where a s. 530 order has been granted, placing all accused on the same footing.
     The respondent does not agree that the provision constitutes an independent
    basis for the production of a transcript at the close of the Crowns case
    or at the end of the trial for appeal purposes.  Rather, the respondent submits,
    the provision simply broadens the record of proceedings to include what
    is spoken in the official language in which it was said and any interpretation
    made into the other official language.  I agree.

[26]

The fundamental rule of interpretation under the common law and both
    provincial and federal statutes is that statutory provisions should be read
    to give the words their most obvious ordinary meaning which accords with the
    context and purpose of the enactment in which they occur:
CanadianOxy
    Chemicals Ltd. v. Canada (Attorney General)
, [1999] 1 S.C.R. 743 at
    para. 14.  The  proper approach to the interpretation of bilingual statutes
    was settled in
R. v. Daoust
, [2004] 1 S.C.R. 217, as the Chief
    Justice explained in
Medovarski v. Canada (Minister of Citizenship and
    Immigration)
, [2005] 2 S.C.R. 539:

24        In interpreting bilingual statutes, the statutory interpretation
    should begin with a search for the shared meaning between the two versions:
     P.-A. Côté,
The Interpretation of Legislation in Canada
(3rd ed. 2000),
    at p. 327.  In
Daoust
, Bastarache J. held for the Court that the interpretation
    of bilingual statutes is subject to a two-part procedure.

25        First, one must apply the rules of statutory interpretation
    to determine whether or not there is an apparent discordance, and if so, whether
    there is a common meaning between the French and English versions.  "[W]here
    one of the two versions is broader than the other, the common meaning would
    favour the more restricted or limited meaning":
Schreiber
, at
    para. 56,
per
LeBel J.
Schreiber
concerned a discrepancy between
    the French version of s. 6(
a
) of the
State Immunity Act
, R.S.C.
    1985, c. S-18, which stated that the exception to state immunity is narrowly
    "
décès
" or "
dommages corporels
", compared
    to the broader English "death" or "personal injury".  Given
    the conflict between the two provisions the Court adopted the clearer and
    more restrictive French version.  The common meaning is the version that is
    plain and not ambiguous.  If neither version is ambiguous, or if they both
    are, the common meaning is normally the narrower version:
Daoust
,
    at paras. 28-29.

26        Second, one must determine if the common meaning is consistent
    with Parliament's intent:
Daoust
, at para. 30.

[27]

When I have regard to the context and purpose of s. 530.1 and the modern
    meanings and usage of the English word transcript and the French word transcription,
    I find in the two versions a common meaning, rather than discordance.  Where
    an order under s. 530 has been made to protect an accuseds linguistic rights,
    whether for a bilingual or unilingual trial, and the evidence at that trial
    is recorded, the sound recording that is the official record of the proceeding
    must include everything that is said in the official language in which it
    is said.  That includes any translation from one official language to the
    other.  The legislative objective is to ensure the record of proceedings contains
    everything said in both languages, not only by the witnesses, but also by
    the interpreter.  The interpretation of s. 530.1 must assure the attainment
    of that objective as Parliament has directed in s. 12 of the
Interpretation
    Act
, R.S.C. 1985, c. I-21.

[28]

The meaning of transcript and transcription in s. 530.1(g) is broad
    enough to include a copy or reproduction of an audio recording.  The audio
    recording is the original record of proceeding.  It is the primary source
    that is consulted in the event of a dispute as to the accuracy of a written
    transcript.  It is the best evidence of what was said.  When a trial judge
    made the only notes taken at a trial, those notes were the best evidence.
     When a stenographer took down in shorthand the words spoken in court, the
    transcription of those notes into writing was the best evidence of what was
    said.  That transcript became the original record of proceeding.  But the
    meaning of the word transcript is not frozen in the days of shorthand reporters.
     It has evolved in the courts as in life beyond the courts to include a copy
    or reproduction by any means.

[29]

For example, in Part VI of the
Criminal Code
, the English
    version of s. 189(5) provides that a private communication cannot be received
    in evidence unless notice has been given to the accused with a transcript
    of the private communication, where it will be adduced in the form of a recording.
    The French version requires notice accompagné  dune transcription de la
    communication privée, lorsquelle sera produite sous forme denregistrement.
    In
R. v. Tam
(1992), 16 C.R. (4th) 164 (C.A.Q.), leave to appeal
    denied [1993] 1 S.C.R. x, the Quebec Court of Appeal held that the service
    of copies of the original sound recordings of the intercepted communications
    satisfied that requirement [c]onsidérant que lexpression transcription
    de larticle 189(5) du
Code criminel
nest pas limitée à une version
    écrite.  The Ontario Court of Appeal reached the same conclusion in
R.
    v. Tam
[2000] O.J. No. 2185. Goudge J.A. explained why at para. 25
    of his reasons:

In my view, service of a copy of the tape itself would also constitute
    service of the transcript of the communications.  The New Shorter Oxford English
    Dictionary defines "transcript" to include a thing that has been
    transcribed, a written or printed copy, and a copy or reproduction.  Indeed,
    given modern technology, one can imagine communications consisting not of
    words but solely of images.  Where there are no words to be reduced to writing,
    provision of a copy would be essential.  Moreover, where the Crown intends
    to adduce the actual tape recording, service of a copy of that tape best meets
    the legislative objective of giving the accused full disclosure of the case
    to be made against him.  Finally, while the case law is divided, the preponderant
    view is that service of a copy of the tape constitutes service of a transcript
    of the communication for the purposes of the subsection.

[30]

This common meaning for transcript and transcription as including
    a copy or reproduction of an audio recording not only permits the two provisions
    to achieve the same legislative object in the same way, it also accords with
    the intent of Parliament in adopting Part XVII of the
Criminal Code
.
     The Supreme Court of Canada has held that the purpose of s. 530 is to provide
    equal access to the courts to accused persons speaking one of the official
    languages of Canada in order to assist official language minorities in preserving
    their cultural identity:
R. v. Beaulac
, [1999] 1 S.C.R. 768
    at para. 34.  The Court added (at para. 39) that [t]he governing principle
    is that of the equality of both official languages.

[31]

Whether an accused opts for a unilingual English or French trial, or
    for a bilingual trial, Part XVII aims at putting that accused on the same
    footing as any other accused, no matter where in Canada and irrespective of
    the official language chosen.  Part XVII is not intended to put an accused
    who invokes it in a better position to obtain a written transcript of an audio
    recording than an accused who does not.  That would be the practical effect
    of the appellants submission that any accused who invokes Part XVII is entitled
    automatically to have a written transcript prepared for inspection.  I say
    practical because an accused has no need for an order under s. 530 for a
    unilingual trial in his or her preferred official language if the judge, court
    officers and prosecutor are speaking that language.

[32]

The appellant argues that the English version bears a narrower interpretation
    that should prevail because penal statutes are to be construed strictly and
    in favour of the accused, citing
R. v. Abbas
, [1984] 2 S.C.R.
    526 in support.  I do not agree.  Neither s. 530 nor s. 530.1 are penal in
    effect.  The latter is a procedural provision that provides certain clarifications
    for implementing an accuseds significant and substantive right under the
    former to a trial by a judge or judge and jury who speak the official language
    of the accused or the official language in which the accused can best give
    testimony:
R. v. Potvin
(2004), 69 O.R. (3d) 641 at para.37
    (C.A.).

[33]

For these reasons, I conclude that s. 530.1 does not mandate the preparation
    of a written transcript at the close of the Crowns case or at any other time.
    If an accused wishes to inspect the record of proceedings, he may listen to
    the audio recording or obtain a copy of it in accordance with the provincial
    legislation and the practice of the court and the Court Services Branch of
    the Ministry of the Attorney General.  In my view, the trial judge was correct
    in her interpretation of the
Criminal Code
.  It does not require
    a written transcript be made available for inspection by every accused person
    at the close of the Crowns case or during or following the trial.

(d)
Section 11(d)

[34]

This conclusion requires consideration of the appellants submission
    that the legislative provisions and current administrative practices with
    regard to the record of proceedings infringe his right to a fair hearing guaranteed
    by s. 11(d) of the
Charter
and treat him differently from those
    accused persons charged by indictment who are entitled to a trial by a judge
    with a jury.  I will restrict this discussion strictly to the transcript issues,
    because the appeal raises other allegations of unfairness that may require
    a record of the proceeding beyond the clerks notes and the reasons for judgment.

[35]

The appellants first complaint is that the failure to provide him
    with a copy of the rules of court pertaining to the making, keeping, inspection
    and making of copies of transcripts rendered his trial unfair.  There are
    no such rules of court.  The legislation and regulations governing those matters
    are publicly available, officially in the
Canada Gazette
and
The British Columbia Gazette
and unofficially in various publications,
    including the provincial and federal government websites.

[36]

The legislative provisions as I understand them permit an accused person
    charged with an absolute jurisdiction indictable offence to be present at
    his trial, to take notes of the evidence, and to cross-examine the Crowns
    witnesses.  They do not require the transcription of an audio recording into
    writing.  If the accused person wishes, he can request the opportunity to
    listen to the audio recording, to have a copy of it made, and to inspect and
    copy the documentary evidence.  He will also have had the full disclosure
    of the case against him that
R. v. Stinchcombe
, [1991] 3 S.C.R.
    326 requires.

[37]

M. LEspinay enjoyed all those rights, the purpose of which is to ensure
    his right to make full answer and defence.  Because no prejudice to that fundamental
    element of a fair trial resulting from the failure to provide a written transcript
    was suggested to the trial court, as none has been suggested to us, there
    was no room for the trial judge to exercise her discretion to remedy any such
    prejudice.  In these circumstances, the failure of the trial court or the
    Attorney General to make a written transcript of the evidence available at
    the close of the Crowns case or during the trial did not infringe M. LEspinays
    right to a fair hearing under s. 11(d) of the
Charter
.

[38]

Nor does the failure to make available a written transcript for the
    purpose of appeal infringe that right.  Section 11(d) guarantees an accused
    person the right to be presumed innocent until proven guilty according to
    law in a fair and public hearing by an independent and impartial tribunal.
    The trial is that hearing.  The right does not reach to an appeal authorized
    by Part XXI of the
Criminal Code
.

(e)
Section 15

[39]

Finally, I am not persuaded the failure to make available a written
    transcript for inspection before electing whether to call evidence infringes
    the appellants right to the equal protection and equal benefit of the law
    without discrimination guaranteed by s. 15 of the
Charter
.
     The test for determining a discrimination claim is set down in
Law
    v. Canada (Minister of Employment and Immigration)
, [1999] 1 S.C.R.
    497 at para. 39.  The appellant satisfied none of them.  Personal characteristics
    are not the basis of any differential treatment in the
Criminal Code
.

(f)
Transcript on Appeal

[40]

This discussion leaves for resolution the last question, whether there
    is a statutory foundation for Rule 7 of the
British Columbia Court of
    Appeal Criminal Appeal Rules, 1986
, S.I./86-137, B.C. Reg. 145/86.
     That rule requires the filing and delivery of an appeal book and transcript
    unless otherwise ordered by a justice or the court.  Section 482(1) of the
Criminal Code
gives every Canadian Court of Appeal the power
    to make rules for the conduct of criminal proceedings not inconsistent with
    this or any other Act of Parliament.  Section 482(3) indicates that rule-making
    power is sufficiently broad to authorize the making of Rule 7.

[41]

The appellants point seems to be that Rule 7 is inconsistent with
    s. 682(2) of the
Criminal Code
, which

provides:

(2)
            A copy or transcript of

(
a
)
            the evidence taken at the trial,

[]

shall be furnished to the court of appeal, except in
            so far as it is dispensed with by order of a judge of that court.

(2)
            Une copie ou transcription:

a
) de la preuve recueillie au procès;

[]

est
            fournie à la cour dappel, sauf dans la mesure où dispense en est
            accordée par ordonnance dun juge de ce tribunal.

The appellant argues that the use of the passive
    voice means that the obligation to provide this record of the trial rests
    on the trial judge, like the obligation in s. 682(1) to furnish a report to
    the appeal court at its request.

[42]

Section 682(2) originated with the enactment of s. 1020(2) in
An

Act to amend the Criminal Code
, S.C. 1923, c. 41, s. 9.  Then,
    it read [i]n all cases where notes of the evidence or any part thereof have
    been made at the trial a copy, or in the case of shorthand notes a transcript,
    of such notes shall be made and furnished to the court of appeal.  Section
    1020(5) provided that rules of court could be made to secure the accuracy
    of the notes to be taken and for the verification of any transcript thereof.
    The passive voice left open the question of who was to provide that record.
     Despite an eloquent dissent by Guerin J. in
R. v. Mastromonico
(1926), 41 Que. K.B. 288, the majority rejected the appeal because (at 289)
    lappelant na pas procédé à faire compléter le dossier.  In doing so they
    adopted their ruling in an earlier case,
R. v. Kin Rifkin
(1926),
    40 Que. K.B. 537 holding that the rule obliged the appellant to prepare the
    record for the appeal.

[43]

This court reached a similar conclusion in
R. v. Cuthbert
(1952), 5 W.W.R. (N.S.) 382 (B.C.C.A.), albeit by analogy to civil cases and
    without reference to the
Criminal Code
provision.
Cuthbert
was followed in
R. v. M.L
.
(1992),
20
    B.C.A.C. 52
.  As the oral reasons in
R. v. Ivan
,
    2000 BCCA 625 and
R. v. Kergan
, 2007 BCCA 56 more recently confirm,
    where a full record is necessary for the effective prosecution of an appeal,
    failure to produce that record will result in the dismissal of the appeal
    for want of prosecution.

[44]

On this reasoning, the appellant is not entitled to an order directing
    the trial court or the Crown to make a transcript of the trial available to
    him for the purpose of this appeal.  Of course, an appellant may apply to
    the court for an order limiting the materials required to be filed under Rule
    7.  I would leave to another day, if and when the issue is raised, whether
    an application for an order permitting the filing and delivery of copies of
    an audio recording in fulfillment of an appellants Rule 7 obligation would
    be successful.

Conclusion

[45]

It follows that I am of the view this appeal cannot succeed on the
    transcript issues and that the appellant must comply with the rules before
    setting down for hearing the remaining issues he raises in his notice of appeal.

The Honourable Madam Justice Huddart

I agree:

The Honourable Chief Justice Finch

I agree:

The Honourable Mr. Justice Chiasson


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Walker
          v. Schober,

2008
          BCCA 19

Date: 20080118

Docket: CA033510

Between:

Kathleen
    Walker

Respondent

(
Solicitor
)

And

Bernhard
    Beat Schober

Appellant

(
Client
)

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Mr. Justice Hall

The
          Honourable Madam Justice Levine

M.
          Clemens, Q.C., and

G.
          Walker

Counsel for the Appellant

G.
          Turriff, Q.C.

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

November 27, 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

January 18, 2008

Written
          Reasons by
:

The
          Honourable Madam Justice Levine

Concurred
          in by:

The
          Honourable Madam Justice Rowles

The
          Honourable Mr. Justice Hall

Reasons
    for Judgment of the Honourable Madam Justice Levine:

[1]

This is a dispute between a lawyer (the respondent, Kathleen Walker)
    and her client (the appellant, Bernhard Schober) over the lawyers legal fees
    for her work representing the client in a matrimonial dispute.  The client
    initiated a review of the fees under s. 70 of the
Legal Profession Act
,
    S.B.C. 1998, c. 9.  The registrar reduced the lawyers fees from $21,055 to
    $6,000.  The lawyer appealed, and the Supreme Court chambers judge allowed
    the appeal, finding that the registrar had exceeded his jurisdiction in finding
    the lawyers conduct most discreditable, and that he had made palpable and
    overriding errors in his findings of fact.  The client appealed to this Court.

[2]

It is my opinion that the chambers judge erred in finding that the
    registrar exceeded his jurisdiction and made factual errors.  It follows that
    I would allow the appeal, set aside the order of the chambers judge, and restore
    the Certificate of Fees of the registrar.

Background Facts

[3]

The appellant and his wife separated in 1997.  The appellant retained
    counsel and commenced divorce proceedings in December 2000.  He served the
    pleadings on his wife in January 2001.

[4]

The appellants wife retained counsel, who filed an appearance on January
    17, 2001.  On February 2, 2001, the wifes lawyer wrote to the appellants
    then-lawyer (not the respondent), stating that she was preparing a statement
    of defence and counterclaim, and requesting that he not take default proceedings.

[5]

The appellants lawyer wrote to the wifes lawyer three times in March
    2001, suggesting mediation and requesting the wifes statement of defence
    and financial information.  He received no response.

[6]

In May 2001, the appellant retained the respondent to replace his previous
    lawyer.

[7]

The appellants main objective in the matrimonial proceedings was to
    obtain overnight access to his two daughters.  He had regular daytime weekend
    access, but wanted to extend his access to overnight visits.  He wanted his
    lawyer to take a more aggressive approach to obtaining some movement on the
    file.

[8]

The respondent reviewed the appellants file and noted that he was
    in a position to file for judgment in default of pleadings.  The respondent
    explained to the appellant the process of proceeding
ex parte
by way
    of an

application for a desk order divorce.  The parties gave conflicting
    evidence as to whether she also informed him of other options.

[9]

The respondent filed an application for a desk order for divorce and
    corollary relief, which was granted on September 5, 2001.  The order provided
    for joint custody and guardianship of the children, and gave the appellant
    overnight access on weekends and holidays.  On September 10, 2001, the respondent
    was informed the order was available and picked it up from the Court Registry.

[10]

The respondent told the appellant about the order, and counselled him
    not to tell his wife about it until she had done some research on the obligation
    to provide the order to opposing counsel.  On September 25, 2005, the respondent
    posted a query on a web board run by the Trial Lawyers Association of British
    Columbia, asking:

What
    is my legal, ethical, moral etc. obligations [
sic
] to my client and
    to opposing counsel to provide them with a copy of the Order before the appeal
    period is up or at all?

[11]

She received a response the same day, informing her that under Rule
    60(32) of the Supreme Court Rules, a party who has entered a divorce order
    must promptly deliver a copy of the order to the other party.

[12]

On September 27, 2001, the respondent mailed a copy of the order to
    the wifes lawyer.

[13]

On October 9, 2001, the appellant informed his wife that he had already
    won. Her lawyer had not yet received the order from the respondent.

[14]

The wife retained a new lawyer, who immediately applied to have the
    order set aside and filed a statement of defence.  The respondent filed a
    cross-application for interim relief for the appellant with respect to custody
    and access.  The parties filed a total of 39 affidavits in the course of the
    ensuing proceedings. Due to limitations on judicial time and a number of adjournments,
    it took six court appearances before the order was set aside and the issues
    were settled by an interim order of Master Patterson on December 14, 2001,
    granting relief more or less in the form it had been granted in the desk order.
    That interim order has remained in place since.

[15]

The respondent issued 23 accounts for services to the appellant, totalling
    $21,055.  All the accounts were paid.

[16]

The review of the respondents accounts proceeded over five days in
    September and October 2004.  Both parties testified, and each called an experienced
    family law practitioner as an expert.  The registrar reserved, and in written
    reasons for decision released November 23, 2004 (2004 BCSC 1542), he reduced
    the respondents fees to $6,000.

Registrars Reasons for Decision

[17]

The registrars review proceeded under s. 71 of the
Legal Profession
    Act
.  The relevant portions provide:

71(2)
    Subject to subsections (4) and (5), the registrar must allow fees, charges
    and disbursements for the following services:

(a)
    those reasonably necessary and proper to conduct the proceeding or business
    to which they relate;

(b)
    those authorized by the client or subsequently approved by the client, whether
    or not the services were reasonably necessary and proper to conduct the proceeding
    or business to which they relate.

(3)
    Subject to subsections (4) and (5), the registrar may allow fees, charges
    and disbursements for the following services, even if unnecessary for the
    proper conduct of the proceeding or business to which they relate:

(a)
    those reasonably intended by the lawyer to advance the interests of the client
    at the time the services were provided;

(b)
    those requested by the client after being informed by the lawyer that they
    were unnecessary and not likely to advance the interests of the client.

(4)
    At a review of a lawyers bill, the registrar must consider all of the circumstances,
    including

(a)
    the complexity, difficulty or novelty of the issues involved,

(b)
    the skill, specialized knowledge and responsibility required of the lawyer,

(c)
    the lawyers character and standing in the profession,

(d)
    the amount involved,

(e)
    the time reasonably spent,

(f)
    if there has been an agreement that sets a fee rate that is based on an amount
    per unit of time spent by the lawyer, whether the rate was reasonable,

(g)
    the importance of the matter to the client whose bill is being reviewed, and

(h)        the result obtained.

(5)
    The discretion of the registrar under subsection (4) is not limited by the
    terms of an agreement between the lawyer and the lawyers client.

[18]

After a detailed review of the evidence, the registrar commenced his
    discussion with the following comment (at para. 62):

While it is true that this is not the forum for deciding
    matters of alleged professional misconduct or unethical behaviour, in appropriate
    circumstances alleged misconduct must be considered in order to come to conclusions
    about
the necessity and propriety of the work
(see s. 71 of the
Legal
    Profession Act
), as well as the quality of the work, and to consider,
    in a global sense, the value of the services that have been rendered on the
    clients behalf.

[Emphasis
    added.]

[19]

The registrar found, leaving aside the issue of the propriety of taking
    proceedings in default, that the strategy was risky, and that the only
    evidence of a discussion of risk was the lawyers testimony that she told
    the client that the other party might apply to set aside the desk order.
    He found there was no evidence that the lawyer had told the client about the
    specific risk of what actually ensued:  that taking default proceedings might
    prompt more court proceedings with more expense (at paras. 63-64).

[20]

The registrar concluded (at paras. 65-67, 70):

These risks could have been reasonably identified prior
    to the implementation of the strategy.  It was at least likely that the obtaining
    of a desk order would result in an application to set it aside -- indeed,
    in my view it was almost inevitable that this would occur since the other
    side was represented by counsel -- but it was at least probable.  Given that
    the default order involved a substantial change to the custody of and access
    to children, it also seems likely that the order would be set aside.  Thus
    proceeding by default was probably going to double the legal expense because
    there would now be two court applications instead of one, although there was
    also a chance that the desk order would not be challenged.
If the client
    had known the risks and attendant costs and approved them then the consequent
    expense might be defensible.  But he did not.

As well, there were aspects of the solicitors already
    risky strategy which added to the risks and costs in the case.  For example,
    the great urgency under which the solicitor did some of her work was largely
    a consequence of her having proceeded by default.  The aggressive position
    taken by opposing counsel may well have been another consequence of that strategy.

There was also a risk that proceeding in this manner
    would erode or perhaps even poison the relationship between the parties.
    I conclude, as well, that
the element of subterfuge to the solicitors
    actions concerning the delivery of the order, which I find to be most discreditable,
exacerbated the risk inherent in the strategy as a whole that trust between
    the parties would be undermined.

.
    . .

I am satisfied that the issue of access for the client
    was a relatively straightforward matter that would be well within the competence
    of any family law practitioner.  It ought to have been resolved by a contested
    court application.  Though I do not doubt the great industry brought to bear
    by the solicitor,
the question in this matter is whether the client made
    an informed choice about the path taken.  I have found that he did not.

[Emphasis added.]

Appeal from the Registrars Order

[21]

The lawyer appealed from the registrars order.  She claimed that the
    registrar exceeded his jurisdiction in assessing her conduct as most discreditable,
    and that he made palpable and overriding errors of fact.

[22]

The chambers judge found that the registrar had exceeded his jurisdiction,
    and referred the matter for re-hearing (2005 BCSC 1648).  The client applied
    for and was granted leave to appeal to this Court; however, the appeal was
    stayed pending the determination by the chambers judge of the alleged factual
    errors (to avoid the possibility of two appeals).

[23]

The chambers judge then addressed the alleged factual errors, and found
    that the registrar had made three factual errors (2006 BCSC 1691).

Chambers Judges Reasons for Judgment

[24]

On the question of the registrars jurisdiction, the lawyer argued
    (as on this appeal) that the registrars finding that her conduct was most
    discreditable amounted to a finding of professional misconduct, and that
    such a finding is reserved to the exclusive jurisdiction of the Benchers of
    the Law Society.

[25]

The chambers judge reviewed the authorities cited by the lawyer regarding
    the broad and exclusive mandate of the Law Society in governing and regulating
    the conduct of lawyers (see, in particular,
Hoem v. Law Society of British
    Columbia
(1985), 63 B.C.L.R. 36 (C.A.)), concluding (2005 BCSC 1648
    at para. 17):

This is to say that the Benchers jurisdiction over the
    administration of the legal profession is tempered by the appellate function
    of the courts and, in the matter of the review of lawyers accounts, by the
    powers vested in the Registrar under sections 70 and 71 of the
Act
.

[26]

The chambers judge noted (at para. 14) that the registrar acknowledged
    that findings of professional misconduct are reserved to the Law Society.
    He reasoned (at para. 19) that the registrar had, in effect, misdirected himself
    by using the word propriety rather than proper, which led him to find
    that the lawyers conduct was most discreditable.  The chambers judge commented
    (at para. 21) that similar terms have been used in the case law defining
    professional misconduct under s. 38 of the
Act
.  He concluded (at
    para. 22):

There is no question that the Registrars finding that
    the appellants conduct was most discreditable amounted to a finding of
    professional misconduct.  That was not the purpose of the Review and it was
    unnecessary to make such a finding in order to address the matters properly
    before him.

[27]

The chambers judge found further (at para. 26) that it was not possible
    to determine the extent to which the registrars finding influenced his decision
    as to the allowable fees.

[28]

On the issue of the alleged factual errors, the chambers judge accepted
    the lawyers argument that the registrar made three findings of fact that
    were contrary to the evidence or were made in the absence of evidence.  These
    were:

(a)
           the client was unaware of the consequences of taking default judgment;

(b)
    the client was worse off as a result of obtaining default judgment; and

(c)
    the lawyer engaged in subterfuge in failing to arrange for proper delivery
    of the default judgment.

[29]

The chambers judge ordered that the lawyers appeal be allowed, that
    the Certificate of Fees signed by the registrar be set aside, that a fresh
    review be heard by a different registrar, and that the client pay the lawyers
    costs of the review, including the appeal in Supreme Court.

Grounds of Appeal

[30]

The appellant client appeals from the chambers judges order on the
    grounds that the chambers judge erred:

(a)
    in holding that the registrars finding that the lawyers conduct was most
    discreditable amounted to a finding of professional misconduct and thereby
    exceeded the registrars jurisdiction; and

(b)
    in holding that it was not possible to determine from the registrars reasons
    what fee he might have allowed had he not made the finding of professional
    misconduct.

[31]

The appellant also claims that the chambers judge erred in finding
    that the registrar made palpable and overriding errors of fact.

Discussion

[32]

The crux of this appeal is the damage to the lawyers reputation from
    the strong language used by the registrar to describe her conduct.  The legal
    basis for her appeal from the registrars order was that only the Law Society
    may make a finding of professional misconduct, that the registrars description
    of her conduct as discreditable amounts to a finding of professional misconduct,
    and that the registrar therefore exceeded his jurisdiction.  The chambers
    judge agreed with the lawyers argument on this point, and the client says
    that the chambers judge erred in doing so.

[33]

The chambers judge also agreed with the lawyer that the registrar erred
    in making findings of fact, and the client says that the chambers judge erred
    in so finding.  As those facts were the basis for the registrars conclusions
    about whether the lawyers fees were necessary and proper, I will deal at
    the outset with that part of the chambers judges decision.

Errors in Findings of Fact

[34]

The standard of review of an appellate court of a registrars findings
    of fact made on a review of a lawyers account is that of an appeal court
    generally:  the court will not interfere with the findings of fact unless
    there was some palpable or overriding error which affected the assessment
    of the facts or, in other words, the findings of fact appear to be clearly
    wrong:  see
Pamela S. Boles Law Corp. v. Mathisen
(1998), 19
    C.P.C. (4th) 78

(S.C.), [1998] B.C.J. No. 976 at paras. 4-5, where
    Baker J. said:

An appeal from the decision of the Registrar on a review
    of a bill under the
Legal Profession Act
is not a new trial, or a rehearing.
    It is a true appeal, in the sense that the court may not interfere with the
    Registrar's decision in the absence of an error in principle. See
Frost
    v. Frost
, 56 B.C.R. 30, [1941] 3 W.W.R. 273, [1941] 1 D.L.R. 774, and
Godbout v. Lisson
(1988), 33 B.C.L.R. (2d) 334, (C.A.). Justice Davies
    of this court elaborated upon this point in his decision in
Klein v. Allin
,
Anderson and Mullen
, (20 March 1997) [April 10, 1997], Nanaimo 007758,
    (S.C.B.C.) [1997] B.C.J. No. 949. In that case he stated:

The
    function of the appellate court is to review the record of the proceedings
    below and to ascertain whether there has been an error in principle. It can
    make an order that could have been made by the tribunal from which the appeal
    is taken, or set aside the decision below, and direct a new hearing. It should
    not interfere with the findings of fact made below unless it be established
    that there was some palpable and overriding error which affected the tribunal's
    assessment of the facts. In short, the rule is that an appellate court will
    not interfere with the findings of the tribunal of fact unless they appear
    to be clearly wrong.

In particular, the Court of Appeal has emphasized that
    it is not the role of the court on an appeal from a review of bills for legal
    services to:

....review
    and reweigh the evidence and to substitute our view of the evidence and the
    findings of credibility for that of the Registrar.

Morton v. Harper Grey Easton
, [1996] B.C.J. No. 1144, (9 May 1996), Vancouver CA019125 (B.C.C.A.)

[35]

In my opinion, the chambers judge engaged in reweighing and reassessing
    the evidence, which was not within his powers as an appellate judge.  Having
    done so, he concluded that the registrar had not adequately set out his reasons
    for accepting or rejecting certain evidence (2006 BCSC 1691 at para. 25),
    and did not make a necessary and specific finding on the credibility of the
    explanation offered by the appellant solicitor for delaying in providing
    the desk order to the wifes lawyer (at para. 26).

[36]

The failure of the registrar to address every item of evidence, and
    to expressly state which of two witnesses he believes, does not make his findings
    of fact clearly wrong.  The chambers judges criticisms of the registrars
    reasoning and conclusions simply do not reveal palpable and overriding, or
    any, errors of fact.

[37]

For example, the chambers judge found that the registrar failed to
    consider matters that were not in evidence (such as the likelihood that the
    clients first lawyer had advised him of the consequences of proceeding on
    an uncontested basis (at para. 12)), and matters that the registrar clearly
    addressed (the other dynamic and inchoate factors that could always come
    into play, including the possibility that the other side would concede (at
    para. 13), addressed by the registrar at para. 65 of his reasons for decision).

[38]

The chambers judge found (at para. 16) that the registrar failed to
    address the tests under the
Legal Profession Act
in finding
    that the services were not specifically authorized.  The chambers judge stated
    that the registrar took the view that his task was simply to decide what
    was
necessary and proper
 (at para. 17) [emphasis in original].  In
    fact, the registrars reasons deal at length with the specific question of
    whether the client had been fully informed and therefore could have authorized
    the services, concluding (at para. 70) that the client had [not] made an
    informed choice about the path taken.

[39]

The chambers judge criticized the registrar (at para. 19) for failing
    to meaningfully address the conflicts in the evidence of the two experts,
    and (at para. 20) suggested that he speculated about the consequences of
    taking default judgment.  It is manifest from his reasons, however, that the
    registrar accepted the opinion of the clients expert, which he summarized
    (at paras. 54-56):

Mr. Schuman, for the client, opined that it was both
    unwise and inappropriate for the solicitor to apply for a desk order in the
    circumstances of the case and, in so doing, she did a disservice to both
    parties and the process.  Mr. Schuman felt that the solicitor ought to have
    informed opposing counsel that she was about to apply for a default order
    or, alternatively, that the solicitor should have proceeded by notice of motion
    and supporting materials served on opposing counsel.  Mr. Schuman said:

Proceeding
    as she did, not only increased the financial cost, it potentially and seriously
    compromised whatever goodwill existed.  It might well have impeded the access
    variance Mr. Schober was seeking.

Mr. Schuman said that Ms. Walkers conduct was contrary
    to her clients best interests as well as inappropriate.

Mr. Schuman was of the opinion that there was no doubt
    that the desk order would be set aside on application by opposing counsel,
    given that there had been four years of
status quo
between the parties
    and the desk order represented a sea change in that situation.  Mr. Schuman
    was of the view that had this matter taken the normal course (that is, by
    way of a chambers application on notice to opposing counsel), variation of
    access in Mr. Schobers favour would have been achieved for total fees in
    the range of $6,000 to $8,000.

[40]

The chambers judge found, finally, that the registrars finding of
    subterfuge was made without a clear finding on the lawyers credibility.
    He fails to mention, however, the lawyers admission on cross-examination
    that her strategy was surreptitious.

[41]

In short, the chambers judges assessment of the registrars factual
    findings proceeded on a wrong principle.  He failed to apply the proper standard
    of review, which entails a deferential approach to findings of fact by a taxation
    officer, and he engaged in new fact finding, including drawing new inferences.
    In doing so, he seemingly misapprehended some of the evidence.

[42]

I agree with the appellant on this ground of appeal.  The chambers
    judge erred in finding that the registrar made palpable and overriding errors
    in his findings of fact.

The Jurisdiction of the Registrar

[43]

The cases cited in support of the exclusive jurisdiction of the Law
    Society make it clear that the regulation and discipline of members is solely
    within its domain: see
Hoem
at 40-43;
Wilson v. Law Society
    of British Columbia
(1986), 9 B.C.L.R. (2d) 260 at 263-64 (C.A.);
Re A Solicitor
(1995), 14 B.C.L.R. (3d) 100 at 106 (C.A.).
    As noted by the chambers judge (at para. 16), however, citing
Hoem
at 44, the Benchers jurisdiction over the legal profession is tempered by
    the powers of the registrar as the taxation officer under ss. 70 and 71 of
    the
Legal Profession Act
.

[44]

Under s. 71(2) of the
Act
, two questions arise:  whether
    the services were reasonably necessary and proper (s. 71(2)(a)), and whether
    they were authorized by the client.  In the latter case, it is not necessary
    to show that they were necessary and proper (s. 71(2)(b)).

[45]

There was conflicting evidence concerning whether the clients consent
    to the steps taken was informed consent, and thus whether the services were
    approved or authorized.  The lawyer maintained that the client was fully
    advised by her of the options and the consequences of the strategy undertaken.
     The client said he understood neither that he had an option nor that the
    consequences could include multiple court appearances and increased legal
    fees.  The registrar found that the client was not fully informed, and could
    not therefore give informed consent.

[46]

Having found that the client had not authorized the services, the registrar
    had to determine whether the services were reasonably necessary and proper.
    He found they were not necessary, because the same result could have been
    obtained through an ordinary contested application, and they were not proper,
    because the strategy implemented by the lawyer created a significant risk
    of more court proceedings and more costs than would have been the case had
    the desk order not been obtained.

[47]

The registrars comment about the lawyers conduct was directed to
    her delay in providing the desk order to the wifes lawyer, contrary to, at
    least, the Rules of Court.  The reference to subterfuge was not inconsistent
    with the lawyers admission that her strategy not to disclose the order to
    the wife and her counsel was surreptitious.  These were part of all of
    the circumstances, which the registrar was required to consider in accordance
    with s. 71(4) of the
Act
.

[48]

Although the registrars language was strong in tone, all of his findings
    were made within the context of deciding whether the client had authorized
    the services and whether they were necessary and proper.  I do not agree
    with the chambers judge that there is a meaningful difference, in this context,
    between proper and propriety.  The registrars use of the phrase necessity
    and propriety does not indicate that he ventured into an inquiry he did not
    have the jurisdiction to undertake.

[49]

Counsel for the respondent raised a similar argument in
Access
    Law Center et al. v. Ferriman
, 2006 BCSC 661.  In that case, in assessing
    the parties credibility, the registrar commented that certain evidence reflected
    poorly on the credibility of the solicitor, not to mention his professional
    ethics (at para. 16).  I agree with Melvin J.s comments (at para. 18):

I agree with Mr. Turriff that the matter of disciplining
    solicitors (subject to a residual power that may rest with the court in dealing
    with officers of the court) is a matter within the jurisdiction of the Law
    Society.  However, in the context of determining credibility, in my view,
    the registrar or any other tribunal of fact is entitled to take into consideration
    conduct; namely, a person's acts and declarations in determining the credibility
    of the individual as a witness.  In this respect, I do not find that
    the registrar's comment concerning professional ethics is inappropriate.
    She did not make a disciplinary finding.

[50]

Similarly, in this case, the registrar did not purport to decide matters
    of professional misconduct.  He made findings of fact relevant to the question
    of whether the services provided by the lawyer were necessary and proper,
    as required by s. 71 of the
Legal Profession Act
.

[51]

I agree with the appellant on this ground of appeal.  The registrar
    did not exceed his jurisdiction in commenting on the lawyers conduct.

The Ex Parte Proceedings

[52]

Before concluding, it is worth commenting, in my opinion, on the unfortunate
    outcome of the strategy adopted by the lawyer, in terms of expense and timeliness,
    to resolve the narrow issue of overnight access.  The clients frustration
    with the lack of progress on the matter appears to have overwhelmed the lawyers
    consideration of the obvious alternative of a contested chambers application.
    That would have provided notice to the wife and her lawyer that the client
    was serious about pursuing the matter, and would have brought the matter before
    the court where it could have been resolved, hopefully without numerous hearings
    and delay and with a better chance of avoiding the rancour that developed
    between the parties.

[53]

It seems to me that in matters of custody and access, where the best
    interests of the child is the question for the court,
ex parte
proceedings
    should be reserved for cases where there is some real urgency.  And if
ex
    parte
proceedings are taken in matters of custody and access, as in any
ex parte
proceedings, the applicant must inform the court of all of
    the material facts.  The facts that there is a dispute concerning the relief
    claimed, and that the other party has communicated that he or she intends
    to file a statement of defence, are material.  Where material facts are not
    disclosed, the order is likely to be set aside on that basis, no matter what
    substantive relief may have been granted.  The failure to consider these principles
    were factors that led to the additional time and expense involved in this
    case.

Conclusion

[54]

The registrar made no errors of fact, and did not exceed his jurisdiction
    in commenting on the conduct of the lawyer in the context of a review of the
    lawyers accounts.

[55]

It follows that I would allow the appeal, set aside the order of the
    chambers judge, and restore the Certificate of Fees of the registrar.

The Honourable
    Madam Justice Levine

I AGREE:

The Honourable Madam Justice Rowles

I AGREE:

The
    Honourable Mr. Justice Hall


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Wolseley
          Canada Inc. v. Emco Corporation,

2008
          BCCA 18

Date: 20080118

Docket: CA035519

Between:

Wolseley
    Canada Inc.

Respondent

(
Plaintiff
)

And

Emco
    Corporation, Gordon Wiltzen,

Paul
    Wesley, Randy Flello, Hazel Duenas, and

Gordon
    Carver

Appellants

(
Defendants
)

Before:

The
          Honourable Madam Justice Prowse

(In
          Chambers)

B.
          Fraser

G.
          Boswall

Counsel for the Appellants

F.E.
          Verhoeven

E.L.
          Bosma

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

January 11, 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

January 18, 2008

Reasons
    for Judgment of the Honourable Madam Justice Prowse:

[1]

EMCO Corporation, Gordon Wiltzen, Paul Wesley, Randy Flello, Hazel
    Duenas and Gordon Carver (the defendants) are applying for leave to appeal
    from the order of a chambers judge, made September 25, 2007, dismissing their
    application for particulars, made pursuant to Rule 19 of the
Rules of
    Court
(the
Rules
), B.C. Reg. 221/90,

and
    allowing the application of Wolseley Canada Inc. (the plaintiff) to amend
    its Statement of Claim.  The chambers judge granted the defendants leave to
    renew their application for particulars upon completion of examinations for
    discovery and discovery of documents.

[2]

By way of brief background, the plaintiff is a national distributor
    of construction materials and has a division, called the Engineered Pipe Group,
    which specializes in the sale of high density polyethylene pipe (HDPE) and
    related services.  The plaintiff is a public company and is listed on both
    the Toronto and New York Stock Exchanges.

[3]

The defendant, EMCO, has a division also specializing in the sale of
    HDPE pipe and related services.  The plaintiff and EMCO are competitors with
    respect to the sale of HDPE pipe and services.

[4]

Prior to November 3, 2005, the individual defendants were employed
    by the plaintiff at its Langley, B.C. office.  Early in November 2005, they
    resigned their employment and began working for EMCO at a new office which
    EMCO had established in Port Coquitlam.

[5]

The plaintiff commenced its action against the defendants by way of
    a Writ of Summons and Statement of Claim filed on March 10, 2006.  The plaintiff
    alleges that the individual defendants breached employment contracts, obligations
    of good faith and fidelity, confidence and fiduciary duties by disclosing
    to EMCO confidential information belonging to the plaintiff.  Wolseley further
    alleges that EMCO knowingly interfered with the contractual relations between
    the plaintiff and the individual defendants and that the defendants used the
    confidential Information to compete unfairly against the plaintiff.

[6]

On December 1, 2006, the defendants filed a Statement of Defence, followed
    by a Notice of Motion on December 4, 2006 seeking particulars of the Statement
    of Claim.  On June 22, 2007, the plaintiff applied to amend its Statement
    of Claim to add further particulars.  The defendants opposed the proposed
    amendments on the basis that, they too, were required to be particularized.

[7]

At para. 3 of his reasons, the chambers judge noted that the defendants
    took the position that the Statement of Claim was expressed in such general
    terms that it unfairly created too broad a scope for examinations for discovery
    of the defendants with the result that any such examinations would be in the
    nature of a fishing expedition.  After reviewing the statement of claim and
    the further materials filed by the parties, the chambers judge rejected that
    submission, and accepted that many of the particulars sought by the defendants
    were peculiarly within their knowledge.  It is apparent that he also accepted
    the plaintiffs submission that ordering further particularization of the
    Statement of Claim at that point would unfairly prejudice the plaintiff by
    unduly tying its hands in examinations for discovery.

[8]

In addressing the defendants application for particulars, the chambers
    judge considered the authorities cited by both parties, which, in turn, included
    references to many of the authorities which have been referred to by the parties
    on this application.  He concluded that the Statement of Claim, including
    the proposed amendments, was sufficient to enable the defendants to properly
    plead and to conduct examinations for discovery.  He anticipated that the
    defendants may wish to renew their applications for particulars following
    discovery.

[9]

If granted leave to appeal, the defendants propose to argue that the
    chambers judge erred in law, or exercised his discretion on wrong principles,
    or without regard to the evidence, in refusing to order particulars.  They
    suggest that there are two conflicting lines of authority with respect to
    orders for particulars, represented by cases such as
Central Power Products
    v. 238022 B.C. Ltd. et al.
, 2003 BCSC 1088, and
Order of the
    Oblates of Mary Immaculate (British Columbia) v. Dohm, Jaffer & Jeraj
2007 BCSC 734 and authorities referred to therein, on the one hand,
    and cases such as
Border Enterprises Ltd. v. Beazer East Inc.
2003 BCSC 49, and
Triathlon v. Kirkpatrick
, 2003 BCSC 1575,
    on the other.  They also say that earlier communications from the plaintiff
    to the defendants, and an earlier application by the plaintiff for injunctive
    relief (subsequently abandoned), indicate that the plaintiff has a much better
    idea of the nature and extent of the various breaches and losses it has alleged
    against the defendants than reflected in the present pleadings and that it
    should be required to provide that information in the form of particulars
    prior to any further discovery process.  They further submit that this case
    presents an opportunity for this Court to consider s. 19(11).1 of the
Rules
,
    which provides for the delivery of further particulars after they become known.

[10]

The plaintiff submits that the proposed appeal is from a discretionary
    order and, as such, is subject to a high level of deference from this Court
    on review.  It says that the chambers judge had regard to the relevant law,
    that he correctly found this to be a case where the pleadings were sufficient
    to permit the defendants to plead and respond to discoveries, and that there
    was no error in the manner in which he exercised his discretion.  The plaintiff
    also submits that there is no real conflict in the law to be applied on an
    application for particulars and that there is nothing in Rule 19(11).1 which
    adds anything new to the law with respect to production of particulars.

[11]

The criteria which must be considered on an application for leave to
    appeal are set out in many authorities, including
Power Consolidated
    (China) Pulp Inc. v. B.C. Resources Investment Corp.
(1988), 19 C.P.C.
    (3d) 396 (B.C.C.A.) and include:

(1)
     whether the point on appeal is of significance to the practice;

(2)
     whether the point is of significance to the action itself;

(3)
     whether the appeal is
prima facie
meritorious, or, on the other hand,
    whether it is frivolous; and

(4)
     whether the appeal will unduly hinder the progress of the action.

[12]

I am not persuaded that the issue of particulars in this case raises
    any point of general significance to the practice.  Without embarking on a
    review of the authorities referred to by counsel, I am not persuaded that
    there are two irreconcilable lines of authority concerning particulars which
    require clarification from this Court.  Rather, the authorities referred to
    discuss general principles of law, followed by an application of the law to
    the particular facts of each case.

[13]

Nor am I persuaded by the defendants suggestion that there is a need
    for this Court to pronounce on the significance of Rule 19(11).1 of the
Rules
,
    which both counsel appear to agree simply represents a clarification of existing
    law.

[14]

I accept that the issue on appeal is of significance to the parties.
    This point is not seriously in dispute.

[15]

I am of the view, however, that the merits test has not been met on
    these facts.  I have reviewed the pleadings and the other materials filed
    in this matter.  I am unable to see any merit to the suggestion that the chambers
    judge failed to consider relevant authorities, that he overlooked relevant
    evidence, or that he erroneously applied the authorities to the facts.  I
    understand that all of the arguments which counsel canvassed before me at
    some length were canvassed at greater length before the chambers judge.  Given
    the stringent standard of review applicable to discretionary orders of the
    court made on an interlocutory basis, I see no prospect that a division of
    this Court would interfere with this order on appeal.

[16]

I am also concerned that granting leave to appeal would interfere with
    the orderly preparation of this matter for trial.  There have already been
    considerable delays in getting this matter on track.  The nature of the action
    is such that it would be in all parties interests to have it resolved as
    soon as possible.  The trial has been set for 25 days to commence September
    22, 2008.  A case management judge has been appointed and has set a schedule
    to ensure that the action is ready to proceed at that time.  This schedule
    includes the completion of examinations for discovery by March 31, 2008.
    It is apparent that discoveries will be extensive and may well call for further
    particulars and further discoveries thereafter.  It is also conceivable that,
    as discoveries progress, the case management judge may be persuaded that further
    particulars are necessary.  In the meantime, I am satisfied that an appeal
    would operate to delay the orderly preparation of this action for trial and
    could well result in an adjournment of the trial.

[17]

In the result, I am not persuaded that this is an appropriate case
    in which to grant leave to appeal and I would dismiss the application for
    leave.

The Honourable Madam Justice Prowse