COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Vickerson,

2018 BCCA 39

Date: 20180130

Docket: CA43736

Between:

Regina

Respondent

And

Conrad Vickerson

Appellant

Before:

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Hunter

On appeal from:  An
order of the Provincial Court of British Columbia, dated May 30, 2016 (
R. v.
Vickerson
,
2016 BCPC 204
, North
Vancouver Docket
59932-2-C
).

Counsel for the Appellant:

D.N. Fai

Counsel for the Respondent:

C. Greenwood

Place and Date of Hearing:

Vancouver, British
  Columbia

June 13, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 30, 2018

Written Reasons by:

The Honourable Madam Justice Bennett

Concurred in by:

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Hunter

Summary:

The appellant seeks to
overturn four convictions of possession for the purpose of trafficking a
variety of illicit drugs. He says the trial judge erred by (1) concluding that
there was evidence that could support the issuance of a search warrant after
infirm evidence was expunged from the supporting affidavit; and (2) determining
that the appellant did not have standing to challenge the grounds of arrest and
search of a third party. Held: Appeal dismissed. (1) The trial judge declined
to hold a voir dire into the merits of an issue the appellant now seeks to
raise on appeal. Without a determination that the trial judge did not exercise
his discretion judicially in declining to hold the voir dire, this Court cannot
and should not disturb such rulings. In any event, there was overwhelming
evidence to support the issuance of the warrant. (2)The appellant had standing
to challenge the search of the seized third partys mobile phone as he had a
reasonable expectation of privacy in the texts and call logs he had sent, but
he did not have standing to challenge the search of the third party or the
vehicle.

Reasons for Judgment of the Honourable
Madam Justice Bennett:

[1]

Conrad Vickerson was convicted on December 4, 2015 of four counts of
possession for the purpose of trafficking a variety of illicit drugs. He
appeals these convictions, arguing that the search warrant obtained to search
his residence was invalid; that he had standing to challenge the grounds of arrest
and search of a third party; and finally, any evidence obtained as a result of
the unlawful search should be excluded under s. 24(2) of the
Charter
.

[2]

The focus of the appeal is the validity of the warrant to search Mr. Vickersons
residence in Whistler.

[3]

The decisions in
R. v. Marakah
, 2017 SCC 59 and
R. v. Jones
,
2017 SCC 60 were released after the appeal hearing. Counsel filed further
submissions in relation to those decisions.

[4]

For the reasons that follow, I would dismiss the appeal.

Background

[5]

The police began investigating Mr. Vickerson for drug trafficking
in October 2013. The police had information from two confidential informants, who
told them that Conrad or JT (a known nickname of Mr. Vickerson) was
selling drugs from his house. One of the informants had purchased drugs from
him, and had seen drugs inside the house. Constable Wirth was the investigating
officer and the affiant on the information to obtain a search warrant (ITO).

[6]

Confidential Informant A advised the police on October 11, 2013, that Conrad
sells drugs, including cocaine and marihuana, from his residence in Nordic
Estates, and that he kept drugs in his home.

Informant A had seen packaging materials inside
Conrads residence.

[7]

Informant A identified Mr. Vickersons residence by pointing it out
to the police.

He also
stated that Conrad drove a beat-up looking tan or gold coloured Nissan
Pathfinder and provided the licence plate number. The police verified that Mr. Vickerson
was the registered owner of a gold coloured Nissan Pathfinder with the same
licence plate number provided by Informant A, and they had seen the vehicle
parked outside Mr. Vickersons residence while doing surveillance.
Constable Wirth conducted police checks on Mr. Vickersons drivers licence
and noted that his first name was Conrad.

[8]

Constable Wirth set out the reliability of Informant A in the ITO.
Informant A had provided the information voluntarily without expectation of
personal gain or reward. Informant A had provided approximately 60 pieces of
information to the police and the majority of them had been confirmed by police
observations.

Informant A
had also provided information in an unrelated investigation that led to an
arrest and seizure of drugs, and his police handler had not encountered any
information provided by informant A that was misleading or false.

Informant A had purchased
drugs from the Appellant.

Informant
A advised the police that Conrads nickname was JT.

[9]

Informant B had provided information to the police in September of 2012.

Informant B stated that JT,
who lives in Nordic Estates, sells cocaine, marihuana and MDMA.

Informant B advised that JT
sold at the gram to ounce level, kept drugs in his residence and kept a certain
amount of drugs on hand.

[10]

The police accessed Mr. Vickersons public Facebook profile and
observed a photograph of Mr. Vickerson that had been posted by a friend on
Mr. Vickersons birthday with a caption reading baked JT a cake. Constable
Wirth identified Mr. Vickerson in the photograph and swore to her belief
that his nickname was JT.

[11]

Constable Wirth set out facts that were relevant to the reliability of
Informant B in the ITO, including that the information was provided for the
prospect of financial
gain. Informant
B had provided over 20 pieces of information to the police and much of it was
consistent with other police files and information from other informants.

Informant B had provided information to
the police in the past that had resulted in the seizure of illegal items, an
investigation resulting in an arrest, and the seizure of drugs and trafficking paraphernalia
.

[12]

The affiant noted that both Informant A and Informant B said that Mr. Vickerson
kept
drugs in his residence
.

[13]

The police conducted surveillance on Mr. Vickersons home over a
two-month period, and observed a number of people arriving, staying for a few
minutes and then leaving.

[14]

The ITO described a number of surveillance observations including the
following:

(a)      On October 17, 2013 an individual arrived in a white
Chevy Impala and was observed entering Mr. Vickersons residence. The
police could not determine the gender of the individual. Three minutes later a
female left the residence and drove away in the white Chevy Impala;

(b)      Approximately an hour and a half later, Mr. Vickerson
attended a residence in the Whistler Cay Heights subdivision. He was observed
coming out of the residence and meeting with the driver of a vehicle for less
than a minute;

(c)      On November 5, 2013, a male and a female were
observed leaving a neighbouring suite. The female then attended Mr. Vickersons
residence for approximately two minutes and returned to the neighbouring suite
while the male returned to his truck;

(d)      On November 6, 2013, a male arrived in a Nissan
Pathfinder carrying a white plastic grocery bag and entered Mr. Vickersons
residence for approximately 4 minutes and then left; and

(e)      On December 18, 2013 an
unknown female attended Mr. Vickersons residence for approximately eight
minutes and was heard saying thank you when she left the residence. She was
driving the same white Chevy Impala as the female who was observed leaving the
residence on October 17, 2013.

[15]

On December 20, 2013, the police observed a truck arrive at Mr. Vickersons
residence and stop outside. A male, later identified as Mr. Schnarr,
entered Mr. Vickersons residence, stayed for six minutes, re-entered the
truck, and drove away. The police stopped the truck at 6:45 p.m., and arrested
the driver and passenger on the belief that the passenger, Mr. Schnarr, had
purchased cocaine from Mr. Vickerson.

[16]

The arresting officer, Constable Wirth, asked Mr. Schnarr if he had
any weapons or drugs on him, and he told her he had drugs hidden in the crotch
of his pants. During cross-examination on
voir dire
, Constable Wirth
explained that she declined to search Mr. Schnarr at the scene so that a
male officer could conduct a proper search at the police station.

[17]

Constable Wirth handcuffed Mr. Schnarr, read him his
Charter
rights
from a police card, and requested a police transport for him. Subsequently,
Corporal Blaine escorted Mr. Schnarr to the station.

[18]

Corporal Shore searched Mr. Schnarr at around 7:30 that night. In addition
to finding seven 0.5 gram bags of cocaine, Corporal Shore searched his mobile phone
and found a series of text messages between Mr. Schnarr and JT (a
nickname the police understood was Mr. Vickersons through information
from both confidential informants), including one on December 20, in which JT
said Sry im home call me back. The officer also searched Mr. Schnarrs
call logs, and found logs of two short conversations between Mr. Schnarr
and JT in the hour preceding Mr. Schnarrs visit to Mr. Vickersons
residence.

[19]

The information from the confidential informants, the surveillance, and
the evidence from the arrest of Mr. Schnarr provided the grounds for the
ITO a search warrant of Mr. Vickersons residence on December 20, 2013. A
telewarrant was issued, and Mr. Vickersons house was searched the same
night.

[20]

When the police executed the search warrant, they arrested Mr. Vickerson
and conducted a search of his person, his vehicle and his residence.

[21]

The police found the following items in a large safe, which they
unlocked with keys seized from Mr. Vickerson:

a)

Two bundles of
Canadian currency, totalling $4,000 CAD;

b)

A one-gram
package of powdered cocaine;

c)

A 40-gram
bag of powdered cocaine;

d)

A 19.7-gram bad
of MDMA;

e)

A bag containing
33 pills of BZP and TFMPP;

f)

100
plastic baggies and some empty pill capsules; and

g)

A score sheet.

[22]

In Mr. Vickersons living room, the police found:

a)

Four $20
Canadian bills;

b)

Pipes containing
marihuana residue;

c)

A
marihuana grinder; and

d)

Glass pipes.

[23]

When the police searched Mr. Vickerson at the time of his arrest,
he was in possession of $360 in $20 Canadian bills folded around a lighter, and
another $93.20 in his wallet. The police also found a pipe and one gram of THC
in Mr. Vickersons truck.

Proceedings at Trial

[24]

At the start of the trial Mr. Vickerson applied for a
constitutional remedy to exclude evidence. In particular, he sought a
voir
dire
to determine the validity of the warrant. The trial judge made three
rulings as a result of the application.

[25]

Mr. Vickerson was initially denied a
voir dire
because he
failed to meet the threshold test set out in
R. v. Vukelich
(1996), 108
C.C.C. (3d) 193 (B.C.C.A), leave to appeal refd [1997] 2 S.C.R. xvi, in the
first ruling:
Ruling Re Application for Voir Dire
(
R. v. Vickerson
(October 21, 2015), North Vancouver 59932-2-C (B.C.P.C.)) at para. 8.
Rather than dismiss the application, the trial judge ordered Mr. Vickerson
to particularize the portions of the ITO that he took issue with.

[26]

In his second ruling,
Ruling on Voir Dire
(October 23, 2015), the
trial judge reasoned that the ITO had three distinct aspects: (1) the
confidential informants; (2) the observations of the police; and (3) the
evidence obtained when the police stopped and searched Mr. Schnarr. The
trial judge dealt swiftly with the first two: Mr. Vickerson did not
display a reasonable likelihood that the evidence from the confidential
informants or the police observations would be excluded. Therefore, he concluded
that there was no need to declare a
voir dire
on this point. However,
the trial judge did declare a
voir dire
with respect to the evidence
obtained through the search of Mr. Schnarrs vehicle.

[27]

The decision to declare the
voir dire
rested on what the trial
judge saw as two irreconcilable decisions of the British Columbia Supreme Court
related to whether evidence obtained in the breach of a third partys
Charter
rights is admissible:
R. v. Todd
, 2015 BCSC 680, and
R. v. Brown,
Lambrecht and Manuel
, 2014 BCSC 1872.

[28]

Todd
and
Brown
diverge on the issue of whether an accused
has standing to apply to exclude evidence from his trial by establishing that
the evidence was obtained via the breach of a third partys
Charter
rights.

[29]

Todd
answers that question in the negative, applying the
established principle that an application to exclude evidence in this context
can only be made by the person whose
Charter
rights have been infringed:
Todd
at paras. 29-30, citing
R. v. Edwards
, [1996] 1 S.C.R.
128 at para. 45.

[30]

Brown
answers that question in the affirmative through an
independent statutory interpretation analysis.
Brown
acknowledges, but
does not apply, the principle in
Edwards
:
Brown
at paras. 44,
56, 65.

[31]

On the
voir dire
, Mr. Vickerson argued that the police did
not have reasonable grounds to stop the truck, and arrest and search its
occupants. Accordingly, Mr. Vickerson contended that the evidence of the
seven 0.5-gram bags of cocaine, and the information on the mobile phone related
to the alias JT, was collected in violation of s. 8 of the
Charter
,
and should be excluded.

[32]

In his third ruling, the
Ruling Re Admissibility of Evidence
(November
10, 2015), the trial judge held that the evidence obtained from the search of Mr. Schnarr
and the vehicle could be included in the ITO, but that the text messages and
call logs between Mr. Schnarr and Mr. Vickerson could not.

[33]

With respect to the non-mobile phone evidence, the trial judge
reviewed the events leading to Mr. Schnarrs arrest and concluded that the
arrest was lawful. The trial judge held that the police did have subjectively
and objectively reasonable grounds to arrest the occupants of the truck based
on the lead investigators observations of the comings and goings to Mr. Vickersons
house during the investigation, informed by her experience in over 100
CDSA
-related

investigations. Accordingly, the trial judge found that the seven 0.5-gram
bags of cocaine found on Mr. Schnarr were obtained in compliance with
s. 8 of the
Charter
and were thus admissible as legally obtained as
a search incident to arrest.

[34]

In the alternative, the trial judge held that if the search was
unlawful, Mr. Vickerson did not have standing to raise the
Charter
issue related to the non-mobile phone evidence.

[35]

There were text messages and a call logged from Mr. Vickerson on Mr. Schnarrs
mobile phone, as well as a logged call from Mr. Schnarr to Mr. Vickerson
in the hour preceding their meeting. The trial judge concluded, citing
R. v.
Pelucco
, 2015 BCCA 370, that Mr. Vickerson retained a privacy interest
in the electronic communications, referring to the text messages and call log
information, on Mr. Schnarrs mobile phone. The trial judge rejected the Crowns
submissions that Mr. Vickersons failure to display a subjective
expectation of privacy was fatal. Such an interest could be inferred. Moreover,
the trial judge rejected the submission that having found the arrest and
search of the occupants of the vehicle was lawful, then [Mr.] Vickerson lacked
standing to allege there was a violation of his rights to privacy. This was
because the trial judge reasoned that
Pelucco
supports a finding that
[Mr.] Vickerson had a right to privacy even though the arrest of the owner of
the mobile phone was lawful:
Ruling Re Admissibility of Evidence
at para. 13.

[36]

Given that the trial judge had already found reasonable and probable
grounds to arrest Mr. Schnarr, the trial judge reasoned there were also
sufficient grounds to support the warrant.

[37]

Having found that the warrant was lawful, the trial judge concluded that
there was no need to consider s. 24(2) of the
Charter
.

The Issues on Appeal

[38]

Mr. Vickerson raises three grounds of appeal. He says that the
trial judge failed to excise unconstitutionally obtained evidence from the ITO;
that he erred in finding that the ITO as amplified on review contained
sufficient grounds to justify granting the search warrant; and finally, that
the trial judge erred in failing to exclude the evidence pursuant to s. 24(2)
of the
Charter of Rights and Freedoms
.

[39]

Mr. Vickerson breaks the first ground into three parts, alleging
that the trial judge erred by:

a)

finding that the police had reasonable grounds to arrest him on
the strength of the confidential informant information and police surveillance
that formed the basis of the warrant;

b)

determining,
after a
voir dire
, that he did not have standing to challenge the
admissibility of evidence obtained in the search of Mr. Schnarr, which he
contends occurred in breach of his s. 8
Charter
rights; and,

c)

determining that even if Mr. Vickerson did have standing, that the
police had reasonable grounds to stop, arrest, and search Mr. Schnarr, and
admit into evidence the drugs found on him.

Position of the Parties

[40]

Mr. Vickerson submits that the grounds set out in the ITO do not
amount to reasonable grounds, and the trial judge erred in so finding. For
example, he says that there was no observed hand-to-hand transaction, and
questions how one could infer that drugs were being exchanged with no hand-to-hand
contact. He further questions the reliance on the officers experience with a
number of drug transactions. He argues that the trial judge erred in finding
that he did not have standing to challenge the search of Mr. Schnarr or
the vehicle. Finally, he submits that the finding that the text messages and
call logs were unlawfully obtained should have led the trial judge to exclude
all of the evidence obtained pursuant to s. 24(2) of the
Charter
.

[41]

The Crowns position is that there is an abundance of evidence to
justify the issuance of the search warrant to search Mr. Vickersons
house. It says that Mr. Vickerson had no standing to challenge the arrest
and search of Mr. Schnarr and the vehicle he was in, and that if there
was, the arrest and search was lawful in any event. It argues that the trial
judge erred in excluding the evidence of the mobile phone text messages found
in Mr. Schnarrs telephone.

Discussion

Standing

[42]

I will address the issue of standing first. Although this was an
alternative route to the trial judges conclusion, there appears to be some
conflict in the decisions in the trial court that should be resolved, if
possible.

[43]

A person is granted standing to challenge a search and seizure in a
criminal case when they have a reasonable expectation of privacy. The factual
matrix is all-important when assessing a reasonable expectation of privacy.
Here, Mr. Vickerson challenges the search of Mr. Schnarr, and the
seizure of drugs, text messages and call logs pursuant to that search.

[44]

The trial judge proceeded with the analysis of the stop, arrest, search
and seizure in relation to Mr. Schnarr as if Mr. Vickerson had
standing. He found no violation of the
Charter
that would result in the
exclusion of the drugs. He also stated, that if he was wrong in that regard, Mr. Vickerson
did not have standing to challenge the search in any event.

[45]

He also concluded that Mr. Vickerson had standing to challenge the
search of the text messages on the mobile phone, and found that the search was
unlawful based on
Pelucco
. He expunged that evidence from the ITO.

[46]

In
R. v. Craig
, 2016 BCCA 154, this Court examined standing, and
the framework established in
Edwards, R. v. Tessling
, 2004 SCC 67

and
R. v.

Patrick
, 2009 SCC 17, in terms of how to approach whether
someone has standing based on a reasonable expectation of privacy. In
Tessling
and
Patrick
, the Court modified the framework to fit the factual matrix
in those cases. In my view, the
Edwards
framework does not need modification
for the facts in this case, which are straightforward. In
Craig
, the
Court set out the standing test as follows:

[65]

Justice Cory, writing for the majority,
held that the assessment of whether a person has a reasonable expectation of
privacy is considered in all of the circumstances of the case (para. 31).
He continued, however, and added that the conduct of the police in conducting
the search is not relevant to the inquiry in relation to the reasonable
expectation of privacy (para. 33).

[66]      He affirmed
the principle found in
Alderman
v. United States
, 394 U.S. 165 at pp. 171-172 (1969), that:

.
. . [the] suppression of the product of a Fourth Amendment violation can be
successfully urged
only by
those whose rights were violated by the search itself, not by those who are
aggrieved solely by the introduction of damaging evidence
.
[Emphasis added.]

[67]      The Court also affirmed that a reasonable
expectation of privacy can exist, even when it shelters illegal activity (para.
43). Cory J. summarized non-exhaustive factors pertaining to the nature of the
s. 8 right to be secure against unreasonable search or seizure, at para. 45:

1.        A
claim for relief under s. 24(2) can only be made by the person whose
Charter
rights have been infringed. See
R. v. Rahey
, [1987] 1 S.C.R. 588, at p.
619.

2.        Like
all
Charter
rights, s. 8 is a personal right. It protects people and not
places. See
Hunter
,
supra
.

3.        The
right to challenge the legality of a search depends upon the accused
establishing that his personal rights to privacy have been violated. See
Pugliese
,
[1992] O.J. No. 450
supra
.

4.        As
a general rule, two distinct inquiries must be made in relation to s. 8. First,
has the accused a reasonable expectation of privacy. Second, if he has such an
expectation, was the search by the police conducted reasonably. See
Rawlings
,
supra
.

5.       A
reasonable expectation of privacy is to be determined on the basis of the
totality of the circumstances. See Colarusso, supra, at p. 54, and Wong, supra,
at p. 62.

6.       The
factors to be considered in assessing the totality of the circumstances may
include, but are not restricted to, the following:

(i)    presence at the time of the
search;

(ii)   possession or control of the
property or place searched;

(iii)  ownership of the property or
place;

(iv)  historical use of the
property or item;

(v)   the ability to regulate
access, including the right to admit or exclude others from the place;

(vi)  the existence of a subjective
expectation of privacy; and

(vii) the objective reasonableness of the expectation.

[47]

Here, Mr. Vickerson was not present when Mr. Schnarrs vehicle
was stopped and searched, he was not in possession or control of the property
(the vehicle), he had no ownership in the property, there was no evidence that Mr. Vickerson
had any attachment to the property at all, and Mr. Vickerson did not
testify on the
voir dire
. Therefore, there was no direct or indirect evidence
of any subjective expectation of privacy. In short, there is nothing to support
that Mr. Vickerson had a reasonable expectation of privacy with respect to
the search of the vehicle, the arrest and search of Mr. Schnarr, or the
seizure of the drugs and the mobile phone. Clearly, the trial judge was correct
in concluding that Mr. Vickerson had no standing to challenge the search
and seizure in relation to Mr. Schnarr, apart from the contents of the
mobile phone.

[48]

Mr. Vickerson argues that he should have been able to challenge all
aspects of the searches on a
voir dire
because he had partial standing
based on the search of Mr. Schnarrs mobile phone. Either one has standing
or not. The standing analysis is founded on a reasonable expectation of privacy
in the thing searched or seized. Standing to challenge the contents of a mobile
phone does not translate into standing to challenge searches or seizures where
there is no expectation of privacy.

[49]

I wish to address briefly the
Todd
and
Brown
decisions. In
Todd
, Rogers J. applied the test found in
Edwards
, which is, as
noted above, the correct approach to assessing whether there is standing to
challenge a s. 8
Charter
violation. In
Brown
[1]
,
Funt J. conducted an analysis of the statutory meaning of reasonable grounds
in coming to his conclusion that co-accused Manuel and Lambrecht had standing
to challenge a violation of Browns rights. Suffice it to say that the analysis
performed in that case should be restricted to that case. The
Edwards
framework, subsequently modified in
Tessling
and
Patrick
, is the
appropriate context to determine if a person has standing to challenge a
Charter
violation.

[50]

I turn now to the search of the mobile phone and the discovery of the
text messages. The trial judge concluded, based on
Pelucco
, that Mr. Vickerson
had a reasonable expectation of privacy in the text messages and call logs, and
thus, they should be excluded from the ITO. The Crown, on appeal, submits that
the trial judge erred in that conclusion by misapplying
Pelucco
. I
agree.

[51]

The trial judges holding that Mr. Vickerson had a reasonable
expectation of privacy in text messages sent to a third partys mobile phone is
grounded in his reading of
Pelucco
. In his
voir dire
ruling, the
trial judge read
Pelucco
to stand for the proposition [
sic
] the
court must infer that the sender of a message has a reasonable expectation of
privacy with respect to messages found in the search of a third partys mobile
phone, and thus he excluded the evidence of the text messages without any
further analysis.

[52]

With respect, the trial judge erred in his application of
Pelucco
.

[53]

The holding in
Pelucco
is narrower than the general proposition
that the trial judge describes. Mr. Justice Groberman, for the majority,
explains that a sender will
ordinarily
have a reasonable expectation
that a text message will remain private in the hands of its recipient: at para. 68
(emphasis added).

[54]

However, Groberman J.A. continues, noting that whether a sender of a
text message has a reasonable expectation of privacy in a received message
depends on the totality of the circumstances, which is a test of substance
rather than form, to be determined under the framework established in
Edwards
and elaborated upon in
R. v. Cole
, 2012 SCC 53:
Pelucco
at paras. 35-36.
Accordingly,
Pelucco
does not stand for the proposition that the sender
of a text message
always
has a reasonable expectation of privacy in that
text message as stored on its recipients mobile phone.

[55]

This conclusion was also reached in
Marakah
at para. 4,
where McLachlin C.J.C. held, for the majority, that depending on the totality
of the circumstances, text messages that have been sent and received may in some
cases be protected under s. 8.

[56]

Secondly, the majority holding in
Pelucco
is expressly
inapplicable to situations of a lawful search. At para. 49, Groberman J.A.
notes:

[49]       A person cannot have a reasonable expectation
that messages on another persons cellphone will remain private
in the face
of a lawful search of the device
.

[Emphasis added.]

[57]

The trial judge in this case determined that Mr. Schnarrs arrest
was lawful, however, he did not consider whether the search of the mobile phone
was a lawful search incidental to arrest. He drew a direct line from a
reasonable expectation of privacy to a breach of s. 8.

[58]

In
Marakah
, the majority concluded that the warrantless search of
Mr. Winchesters (the third party) mobile phone two hours after his arrest
was not a search incidental to arrest and was thus in breach of s. 8, a
fact conceded by the Crown. Mr. Marakah had standing to challenge that
search. The majority excluded the evidence of the electronic conversations
pursuant to s. 24(2) of the
Charter
.

[59]

The trial judge was, in my view, correct in concluding that Mr. Vickerson
had standing to challenge the search of Mr. Schnarrs mobile phone. The
search was conducted approximately 45 minutes after Mr. Schnarrs arrest
because Constable Wirth was waiting for a male officer to search him. That does
not explain the delay in searching the mobile phone. The trial judge did not
consider whether this was a search incidental to arrest, however we do not need
to resolve that question because the trial judge ultimately excluded the
evidence of the text messages and the call logs from the ITO based on his
misapplication of
Pelucco
. However, since this decision was in favour of
Mr. Vickerson, it does not assist him in this appeal.

Other
Grounds

[60]

The trial judge refused to permit Mr. Vickerson to raise a
challenge to the ITO based on either the surveillance or the informant
information in the
Ruling Re Application for Voir Dire
. On appeal, Mr. Vickerson
renews his challenge to the surveillance and informant information, rather than
challenging the
Vukelich
ruling itself. It seems to me that should be
the first step in the analysis. When reviewing a trial judges exercise of
discretion to refuse to hold a
voir dire
, the standard of review limits
appellate intervention to cases in which the discretion has not been judicially
exercised. This is a high threshold for an appellant to overcome:
R. v. M.B.
,
2016 BCCA 476 at paras. 46, 107;
R. v. Mastronardi
, 2015 BCCA 338
at para. 63. The Crown, in its factum, did not take issue with Mr. Vickersons
failure to challenge the
Vukelich
ruling on appeal, and argued that the
evidence was unassailable and therefore correctly admitted.

[61]

The discretion to decline to hold a
voir
dire
is founded in the need for trial judges to control the course of
proceedings and to not embark upon enquiries that will not assist the real
issues in the trial:
M.B.
at para. 45. These case management powers
are a critical tool that trial judges should use to minimize delay:
R. v.
Cody
, 2017 SCC 31 at para. 38, citing
Vukelich
with approval on
this point.

[62]

Absent an argument on appeal
demonstrating that the trial judges discretion in declining to hold a
voir
dire
was not exercised judicially, this Court cannot and should not disturb
such rulings.

[63]

However, since both parties argued this ground of appeal on the merits
of the challenge to the surveillance and the informant information, I will
address those submissions. I reiterate that, going forward, the proper approach
in these circumstances is to challenge directly the trial judges exercise of
discretion in declining to hold a
voir dire
as explained in
M.B.
,
Mastronardi
, and
Cody
.

Standard of Review

[64]

The standard of review of whether reasonable and probable grounds
exist is found in
R. v. Shepherd
, 2009 SCC 35 at para. 20:

While there can be
no doubt that the existence of reasonable and probable grounds is grounded in
the factual findings of the trial judge, the issue of whether the facts as
found by the trial judge amount
at law
to reasonable and probable
grounds is a question of law. As with any issue on appeal that requires the
court to review the underlying factual foundation of a case, it may understandably
seem at first blush as though the issue of reasonable and probable grounds is a
question of fact. However, this Court has repeatedly affirmed that the
application of a legal standard to the facts of the case is a question of
law:  see
R. v. Araujo
,
2000 SCC 65
,
[2000] 2 S.C.R. 992
, at para. 18
;
R. v. Biniaris
,
2000 SCC 15
,
[2000] 1 S.C.R. 381
, at para. 23
.
... Although the trial judges factual findings are entitled to deference, the
trial judges ultimate ruling is subject to review for correctness.

[65]

The test on the review of the issuance of an ITO is well established:
The question for the reviewing judge is whether there was reliable
evidence that might reasonably be believed on the basis of which the
authorization could have issued, not whether in the opinion of the reviewing
judge, the application should have been granted at all by the authorizing judge:
R. v. Vu
, 2013 SCC 60 at para. 16, quoting
R. v. Araujo
,
2000 SCC 65 at para. 54.

[66]

A review of the evidence that sets out the grounds for the ITO establishes
that it not only met the test that the authorization
could
have issued,
but overwhelmingly supported the issuance of the warrant to search Mr. Vickersons
residence. Thus, the trial judge made no error in his conclusion on that basis.

[67]

Mr. Vickerson has not demonstrated
that the trial judge failed to exercise his discretion judicially in declining
to hold a
voir dire
related to the surveillance and informant
information, and he has not established a breach of s. 8. It is,
therefore, not necessary to address his final ground of appeal in relation to
s. 24(2).

Conclusion

[68]

For all of these reasons, I would dismiss the appeal.

The
Honourable Madam Justice Bennett

I AGREE:

The
Honourable Mr. Justice Groberman

I AGREE:

The Honourable Mr. Justice
Hunter

[1]

The Crown appealed the decision in
R. v. Brown et al
(CA42669),
however, the appeal was dismissed as abandoned on October 27, 2015.


COURT OF APPEAL FOR BRITISH
COLUMBIA

Citation:

Levy v. British Columbia
(Crime Victim Assistance Program),

2018 BCCA 36

Date: 20180201

Docket: CA44551

Between:

Michael Levy

Respondent

(Plaintiff)

And

The Director of
Crime Victim Assistance Program and
Her Majesty The Queen in Right of the Province of British Columbia, as
represented by the Ministry of Public Safety and Solicitor General

Appellants

(Defendants)

Before:

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Savage

The Honourable Mr. Justice Hunter

On appeal from:  An
order of the Supreme Court of British Columbia,
dated June 2, 2017 (
Levy v. British Columbia (Crime Victim Assistance
Program)
,
2017 BCSC 1455, Vancouver Registry S161147).

Counsel for the Appellants:

D.R. Suntjens

J. Van Camp

Counsel for the Respondent:

G.R. Cameron

Place and Date of Hearing:

Vancouver, British
  Columbia

January 5, 2018

Place and Date of Judgment:

Vancouver, British Columbia

February 1, 2018

Written Reasons by:

The Honourable Mr. Justice Savage

Concurred in by:

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Hunter

Summary:

The Director of the Crime
Victim Assistance Program and Mr. Levy entered into a settlement agreement
in which the Director agreed to fund his care under the Crime Victim Assistance
Act. After disagreement on the benefits to which he was entitled, Mr. Levy
sued the Director. British Columbia and the Director appeal from an order
dismissing their applications to strike Mr. Levys underlying action
saying that the pleadings disclosed no reasonable claim as it was founded on an
interpretation of a contract which is contrary to law, and the action was an
abuse of process as an impermissible collateral attack on a reviewable
determination. Held: appeal dismissed. The judge correctly held the
appellants arguments failed to establish the claim was bound to fail because
application of the anti‑fettering doctrine was not settled law, and
whether the agreement was ultra vires the legislative scheme required
appropriate factual context. The judge did not err in concluding it is not
plain and obvious at this stage that Mr. Levys claim was a collateral
attack on the directors determination rather than a breach of the directors
obligations under the settlement agreement.

Reasons
for Judgment of the Honourable Mr. Justice Savage:

Overview

[1]

The appellants, the Director of the Crime Victim Assistance Program (the
Director) and the Province of British Columbia (collectively British
Columbia), appeal from an order of Mr. Justice Grauer dismissing their
applications to strike the underlying action for (1) disclosing no
reasonable claim, or (2) constituting an abuse of process as an
impermissible collateral attack on decisions of the Director which should have
proceeded through internal and/or judicial review.

Background

[2]

In 2006, Mr. Levy, the respondent, suffered catastrophic injuries
when he was assaulted by individuals with a hatchet, rendering him
quadriplegic. He was accepted as a victim of crime by the Crime Victim
Assistance Program (CVAP), which agreed to fund his care pursuant to the
Crime
Victim Assistance Act
, S.B.C. 2001, c. 38
[
CVAA
].

[3]

Mr. Levy sued his assailants and others whose negligence he said
contributed to his injuries. The Director required him to include in his tort
claim past and future healthcare costs to be paid on his behalf by the CVAP. Mr. Levy
settled with the alleged tortfeasors in 2009.

[4]

The Director attended the settlement negotiations and entered into the
contract of settlement (the Settlement Agreement) which resulted in the
following terms germane to this appeal:

1)

The alleged tortfeasors would pay Mr. Levy $2.1 million;

2)

The alleged tortfeasors would pay the CVAP $312,000
for healthcare costs incurred to date; and

3)

The CVAP agreed to continue funding Mr. Levys
future care without seeking repayment over and above the amount of $312,000
paid for support to date.

[5]

In the underlying notice of civil claim, Mr. Levy sues the CVAP for
breach of the Settlement Agreement, claiming that the CVAP has breached the
contract by curtailing and refusing to pay for care to which he is entitled.
Specifically, he alleges that the CVAP breached the Settlement Agreement by
refusing to pay for:

1)

The incremental increased cost for attendant care
services;

2)

Increased attendant care needs as a result of Mr. Levy
living alone; and

3)

Wound care services to treat pressure sore ulcers.

[6]

Before filing its response to civil claim, British Columbia applied to
strike Mr. Levys claim pursuant to Rule 9‑5(1)(a) as
disclosing no reasonable cause of action and pursuant to Rule 9‑5(1)(d)
as an abuse of process.

Issues

[7]

I would describe the issues as follows:

1)

Did the chambers judge err in declining to strike the
pleadings pursuant to Rule 9‑5(1)(a), by failing to apply the anti‑fettering
doctrine or recognizing the agreement at issue represents an improper
contracting out of the
CVAA
?

2)

Did the chambers judge err in declining to strike the
pleadings pursuant to Rule 9‑5(1)(d) as constituting an abuse of
process?

3)

Did the chambers judge err in allowing Mr. Levy
the opportunity to amend his pleadings?

Discussion and Analysis

Standard of Review

[8]

The decision to strike pleadings is generally a discretionary decision,
attracting a deferential standard of review:
Carhoun & Sons Enterprises Ltd.
v. Canada (Attorney General)
, 2015 BCCA 163

at para. 18.
However, if there is an extricable error of law, the correctness standard of
review applies, because where the law dictates a specific outcome, there is no
discretion:
Carhoun
at paras. 19‑20.

[9]

The parties disagree with respect to the appropriate standard of review
on appeal. British Columbia submits that the decision regarding Rule 9‑5(1)(a)
involves evaluating the pleadings against the limitations of the statutory
scheme, which is an extricable question of law. British Columbia submits that,
with respect to the Rule 9‑5(1)(d) abuse of process decision, the
chambers judge considered whether the contract claim is sustainable as a
separate and distinct justiciable claim, which is also an extricable question
of law.

[10]

Mr. Levy emphasizes as discretionary the nature of the judges
decision, which is entitled to deference, and submits that there is no
extricable question of law determinative as to the outcome. As I understand his
argument, even if there is an extricable question of law under the Rule 9‑5(1)(a)
application, in circumstances where the law is unsettled, there is a discretion
to decline to answer the question posed, in the absence of a proper context.
With respect to the application under Rule 9‑5(1)(d), as that
determination requires both context and evidence, the judges decision is
entitled to deference.

Preliminary Issue: Amending Pleadings

[11]

In its factum, British Columbia submits that the judge erred in law by
permitting Mr. Levy to amend his notice of civil claim, and by concluding
amendments could save Mr. Levys claim from being struck. British Columbia
argues that even the amended notice of civil claim should be struck as it
discloses no reasonable cause of action. This argument was not discussed in any
substantive manner in oral argument, so I briefly deal with it at the outset
here.

[12]

The judge permitted the notice of civil claim to be amended
after
dismissing British Columbias motion to strike application, as it could
usefully be improved by amendment (para. 26). When considering a motion
to strike, the court may consider whether there was disclosed from
[the] pleading with such amendments as
might reasonably be made, a proper case to be tried: see
Chang Estate v.
Chang
, 2010 BCCA 111 at para. 39.

[13]

The decision to allow parties to amend pleadings is a discretionary one.
Here, the decision did not impact the order under appeal, and considering
amendments to the pleadings is consistent with the proper judicial role in
considering a motion to strike application. In my view, the judge did not err
in allowing Mr. Levy to amend his notice of civil claim.

Issue 1  No Reasonable Cause of Action

[14]

The legal test on a motion to strike application is not disputed by the
parties. Pleadings should be struck under Rule 9‑5(1)(a) only
if it is plain and obvious, assuming
the facts as pleaded to be true, that the pleading discloses no reasonable
cause of action:
Hunt v. Carey Canada Inc.
, [1990] 2 S.C.R. 959 at 978‑80;
R. v. Imperial Tobacco Canada Ltd.
, 2011 SCC 42

at para. 17.

[15]

Broadly speaking, British Columbia makes two arguments with respect to
why it is plain and obvious Mr. Levys notice of civil claim discloses no
reasonable claim. Both arguments hinge on interpreting the Settlement Agreement
as it pertains to the relationship between Mr. Levy and British Columbia
in light of the
CVAA
.

i.

Fettering Discretion

[16]

First, British Columbia submits Mr. Levys interpretation of the
Settlement Agreement would fetter the Directors discretion, contrary to law.
British Columbia submits that the Supreme Court of Canadas decision in
Pacific
National Investments Ltd. v. Victoria (City)
, 2000 SCC 64, is binding
authority for the proposition that the Directors discretion cannot be
fettered.

[17]

British Columbia also relies upon the decision of
Andrews v. Canada
(Attorney General)
, 2009 NLCA 70
[
Andrews
No. 1
],
where the
Court of Appeal upheld a successful application to strike. In that case, the
plaintiffs claimed the Minister of Fisheries and Oceans breached a contract
reducing crab quotas. In dismissing the appeal, the Court held that the
Ministers discretion to issue quotas could not be fettered directly or indirectly.

[18]

Applied to the present matter, British Columbia argues the
interpretation of the Settlement Agreement proffered by Mr. Levy would
impermissibly fetter the discretion of the Director (which is broad under the
CVAA
)
to award benefits, and therefore the notice of civil claim discloses no
reasonable cause of action.

[19]

Mr. Levy, in response, submits that his interpretation of the
Settlement Agreement does not fetter the discretion of the Director. The
Settlement Agreement does not fetter the ability of the Director to determine
whether the criteria of the statute have been satisfied, or to assess the
quantum of benefit to be awarded in any given case. He submits that the
Settlement Agreement simply reflects an acknowledgment that British Columbia
and the Director will continue to fund his care without recourse to his
settlement to pay for things they otherwise would have compensated.

[20]

Mr. Levy alternatively submits that the state of the authorities
regarding fettering discretion is not such that it is plain and obvious the
fettering doctrine bars contractual claims against the Crown. He argues that
the anti‑fettering doctrine set out in
Pacific National Investments
only applies to agreements fettering the ways in which a government may
exercise its
legislative powers
. On his reading of
Pacific National
Investments
, the anti‑fettering doctrine does not apply to business
agreements, like the Settlement Agreement at issue in the present proceeding.

[21]

In support of his interpretation of
Pacific National Investments
,
Mr. Levy relies on two Ontario decisions,
Weyerhaeuser Company Limited
v. Ontario (Attorney General)
, 2016 ONSC 4652, and
Ontario First Nations
(2008) Limited Partnership v. Aboriginal Affairs (Ontario)
, 2013 ONSC 7141.
He also cites academic criticism of an expansive reading of
Pacific National
Investments
and the anti‑fettering doctrine: Peter W. Hogg,
Patrick J. Monahan & Wade K. Wright,
Liability of the Crown
,
4th ed. (Toronto: Carswell, 2011) at 324‑31.

[22]

In the context of a motion to strike application, Mr. Levy refers
to
Andrews v. Canada (Attorney General)
, 2014 NLCA 32
[
Andrews No. 2
]
. Despite the presence of facts
substantially similar to those of
Andrews No. 1
, in
Andrews No. 2
,
the Court of Appeal held that the prior authorities, including
Pacific
National Investments
, did not mean it was plain and obvious the fettering
doctrine bars contractual claims against the Crown. In so holding, the Court
found the impact of
Pacific National Investments
in relation to the
scope of the anti‑fettering doctrine to be unclear (para. 42).

[23]

Mr. Levy also relies on
Wells v. Newfoundland
, [1999] 3
S.C.R. 199, for the proposition that while the Crown can act in breach of
contractual obligations, it is still liable for the legal consequences of doing
so. While the Crown can limit those consequences by legislatively extinguishing
the cause of action, this has not occurred in this case. He relies on the
decision in
Radusin v. British Columbia
, 2005 BCSC 373, where liability
was established for breach of contract when the Director failed to pay a lump
sum agreement made pursuant to s. 4(7) of the
CVAA
. Mr. Levy
argues this decision demonstrates that his claim is not destined to fail, as a
contractual claim against the Director has succeeded in the past.

[24]

In a motion to strike application, Mr. Levy submits, the law must
be clear beyond doubt, and in this case, the judge properly concluded the
authorities were not sufficiently settled.

ii.

Ultra Vires Legislation

[25]

In its second argument pertaining to Mr. Levys claim disclosing no
reasonable claim, British Columbia submits the claim is bound to fail because Mr. Levys
interpretation of the Settlement Agreement is
ultra vires
the
legislative scheme. British Columbia argues that Mr. Levys interpretation
would in effect represent a contracting out of the
CVAA
, a result that
is impossible in law.

[26]

British Columbia argues that the statutory scheme  and particularly
s. 9(4)(a)  expressly prevents the parties from entering into the alleged
contract because the Director is obligated to deduct settlements in determining
benefits. The Directors ability to enter into agreements pursuant to s. 22.1
of the
CVAA
does not authorize the Director to enter into agreements
inconsistent with the
CVAA
. This, British Columbia submits, distinguishes
the facts in the present matter from those in
Radusin
, where the
enforced contract complied with s. 4(7) of the
CVAA
. Therefore, no
contracting out issues were engaged.

[27]

Beyond fettering the Directors discretion, the pleaded interpretation
of the Settlement Agreement would be grossly unfair to other victims and fail
to advance the purposes of the
CVAA
.

[28]

Mr. Levy, to the contrary, submits that the purpose of the
CVAA
and the CVAP scheme and the relevant provisions of the
CVAA
support a
conclusion that the Director is entitled to enter into a Settlement Agreement
such as the one at issue here. Mr. Levy puts forth a different statutory
interpretation than the one offered by British Columbia. In his reading of the
CVAA
,
the agreement was authorized by the terms of the statute, and furthers the
purposes of the scheme.

[29]

In the result, Mr. Levy submits that contracting out principles are
not engaged because the Settlement Agreement arises from the legislation and
furthers its purpose.

iii.

Analysis

A. Law Regarding
Anti-Fettering Doctrine

[30]

British Columbia says
Pacific National Investments
clearly
establishes that the anti‑fettering doctrine was binding on the judge in
his determination of whether the pleadings should be struck. As the law is
clear on this point, British Columbia alleges an extricable error of law was
made by the judge. British Columbia says the anti‑fettering doctrine
demonstrates Mr. Levys claim is bound to fail because his interpretation
of the Settlement Agreement cannot stand alongside this doctrine.

[31]

I am not persuaded by these arguments. As Mr. Levy submits, and as
the judge found, the application of the anti‑fettering doctrine is not
settled in law. The narrow reading of
Pacific National Investments
endorsed
by Mr. Levy, limiting the doctrine to agreements fettering
legislative
discretion, has been accepted by other Canadian courts: see
Weyerhaeuser
at para. 51;
Ontario First Nations
at paras. 53‑59; and
Andrews
No. 2
at paras. 36‑42.

[32]

Courts ought to be cautious in striking out claims, particularly novel
ones that may not yet be embedded in existing legal rules, lest it stunt the
growth of the law. This does not mean that fanciful claims, or claims based on
wishful thinking, should proceed to trial. Where a claim is based on rational
argument that involves an extension, development or reasonably arguable
restriction or reversal of some existing authority, the situation may be
otherwise. In
Imperial Tobacco
, McLachlin C.J.C. said:

[19]

The power to strike out claims that have no
reasonable prospect of success is a valuable housekeeping measure essential to
effective and fair litigation. It unclutters the proceedings, weeding out the
hopeless claims and ensuring that those that have some chance of success go on
to trial
.

[20]

This promotes two goods - efficiency in the conduct
of the litigation and correct results. Striking out claims that have no
reasonable prospect of success promotes litigation efficiency, reducing time
and cost. The litigants can focus on serious claims, without devoting days and
sometimes weeks of evidence and argument to claims that are in any event
hopeless. The same applies to judges and juries, whose attention is focused
where it should be - on claims that have a reasonable chance of success. The
efficiency gained by weeding out unmeritorious claims in turn contributes to
better justice. The more the evidence and arguments are trained on the real
issues, the more likely it is that the trial process will successfully come to
grips with the parties respective positions on those issues and the merits of
the case.

[21]

Valuable as it is, the
motion to strike is a tool that must be used with care. The law is not static
and unchanging. Actions that yesterday were deemed hopeless may tomorrow
succeed
. Before
Donoghue v. Stevenson
,
[1932] A.C. 562 (H.L.)
introduced a general duty of care to ones
neighbour premised on foreseeability, few would have predicted that, absent a
contractual relationship, a bottling company could be held liable for physical
injury and emotional trauma resulting from a snail in a bottle of ginger beer.
Before
Hedley Byrne & Co. v. Heller & Partners, Ltd.
, [1963] 2 All E.R. 575 (H.L.),
a
tort action for negligent misstatement would have been regarded as incapable of
success. The history of our law reveals that often new developments in the law
first surface on motions to strike or similar preliminary motions, like the one
at issue in
Donoghue v. Stevenson.

Therefore, on a motion to strike, it is not determinative that the law
has not yet recognized the particular claim. The court must rather ask whether,
assuming the facts pleaded are true, there is a reasonable prospect that the
claim will succeed. The approach must be generous and err on the side of
permitting a novel but arguable claim to proceed to trial.

[Emphasis
added.]

[33]

In the instant case, the claim arises in respect of legislative
provisions that have not yet received appellate consideration. It arises on a
factual matrix that is not fully articulated or robust. It arises in the
context of a decision based on a doctrine which has been the subject of
negative academic commentary and confined in its application. In those
circumstances, I see no error in the judges decision that:

[22]
On
this state of the law, I conclude that it cannot be said that the claim is
bound to fail. Whether the law dictates a dismissal of this claim should
properly be decided on the basis of full pleadings and an evidentiary record as
was the case in
Andrews No. 2
.

B. Contracting Out

[34]

I turn to British Columbias arguments pertaining to contracting out of
the scheme of the
CVAA
. In my view, the arguments on this point focus
upon

the statutory scheme without appropriate engagement with the terms
of the Settlement Agreement. The problem with British Columbia structuring its
arguments in this manner is that it overlooks the underlying nature of Mr. Levys
claim: a breach of contract.

[35]

While the legislative framework necessarily factors into the contractual
interpretation issue at the heart of Mr. Levys claim, both contractual
interpretation
and
statutory interpretation must be considered in
determining whether it is plain and obvious that Mr. Levys claim
discloses no reasonable cause of action.

[36]

The nexus of contractual and statutory interpretation engaged by British
Columbias contracting out argument does not, in my view, point
at this
stage
to a clearly extricable question of law. Rather, as the judge said:

[12]
As
to contractual interpretation, it is my view that a definitive interpretation
cannot sensibly be made without having recourse to evidence, particularly in
relation to the surrounding circumstances
. For instance, it may be that the
value of Mr. Levys tort claim was significantly higher than $2,100,000
and that it was necessary to compromise the claim (being not only the plaintiffs
claim but also the CVAPs claim) given the resources of the defendants and
insurance coverage issues. In this regard, the approach taken by the plaintiff,
the defendants, and the Director may well be relevant to how one interprets the
contract.

[13]
British
Columbia objects that the materials relating to the mediation are privileged. Without
deciding that point, I am not convinced that that necessarily flows in this
case, where the claim seeks to enforce the settlement agreement that was
allegedly reached. But even if it does, affidavit evidence from Mr. Levy
as to the circumstances surrounding his claim and his agreement to settle may
be admissible, relevant and probative of how the agreement is to be interpreted.
That cannot be decided here.

[Emphasis added.]

I am not persuaded that there is any error in the judge so
reasoning.

[37]

In general, the question of whether a pleading discloses a reasonable
cause of action under Rule 9‑5(1)(a) is an extricable issue for
which no deference need be accorded the chambers judge. As I have said, where
there is an extricable question of law
where the law is unsettled
, a
judge should be cautious in striking a claim at this stage. I find it
unnecessary to characterize the standard applicable to this Courts review of
the judges discretion in these circumstances, as I agree with his conclusion.
However, I would observe that this Court is in the same position as the
chambers judge in determining whether the state of the law is unsettled.

[38]

That said, on both contractual interpretation arguments offered by
British Columbia, I am of the opinion that the judge was correct in holding it
was not plain and obvious the claim was bound to fail. Both the state of the
law regarding the applicability of the anti‑fettering doctrine in this
context, as well as the nexus of statutory interpretation and contractual
interpretation, lead me to conclude that it is correct in law not to strike the
claim, absent a proper evidentiary record, at this stage.

Issue 2  Abuse of Process

i.

Submissions of the Parties

[39]

British Columbia submits Mr. Levys claim constitutes an abuse of
process because it is in actuality a collateral attack on the Directors
decisions, and recourse should be sought through judicial review, not an
artfully pleaded contract claim.

[40]

British Columbia cites the Supreme Court of Canadas decision in
Boucher
v. Stelco Inc.
, 2005 SCC 64. It attempts to distinguish the case at bar
from
Canada (Attorney General) v. TeleZone Inc.
, 2010 SCC 62, in which
the Supreme Court of Canada dismissed the argument that judicial review needed
to be sought before pursuing claims for breach of contract, negligence and
unjust enrichment in the provincial superior courts.

[41]

In so doing, British Columbia emphasizes the privative clause found in
the
CVAA
. This privative clause, it says, is similar to one found in
s. 96(1) of the
Workers Compensation Act
, R.S.B.C. 1996, c. 492,
and to that end, cites a body of case law interpreting and applying that
privative clause. Ultimately, British Columbia argues Mr. Levy is
attempting to use artful pleadings as a thin pretense to establish a private
wrong in order to launch a collateral attack on administrative decisions, and
therefore his claim should be struck as an abuse of process.

[42]

Mr. Levy submits British Columbias cited case law is not relevant.
Rather, the governing authority is
TeleZone
, as well as this Courts
decision in
Camp Development Corporation v. Greater Vancouver Transportation
Authority
, 2010 BCCA 284.

[43]

Mr. Levy agrees with British Columbias submission that the
collateral attack doctrine prevents a party from using an institutional detour
to attack the validity of an order. However, he submits that he does not impugn
the validity of the Directors decision, but rather argues that the decisions
made by the Director demonstrate a private law wrong committed by the Director:
breach of the Settlement Agreement.

[44]

He therefore says that, as in
TeleZone
, the litigation should be
permitted to proceed, as he has more than an arguable case and it cannot be
said it is plain and obvious that the claim pleaded is an abuse of process.

ii.

Analysis

[45]

The facts of
TeleZone
involved a statement provided by Industry
Canada in the context of a call for personal communication services licenses.
In this statement, Industry Canada indicated that up to six licenses would be
granted. Ultimately, when Industry Canada announced its decision, only four
licenses were awarded.

[46]

TeleZone, which did not obtain a license, commenced a civil action
seeking damages for breach of contract, negligence and unjust enrichment. The
Attorney General of Canada challenged the jurisdiction of the provincial
superior courts to hear the action, arguing that TeleZones action was actually
a collateral attack on the decision, which properly should have been brought by
way of judicial review to the Federal Court.

[47]

The Supreme Court of Canada ultimately held TeleZone was entitled to
bring its action in provincial superior court because its claim disclosed a
private law action and TeleZones claim did not attempt to invalidate or render
inoperative the Ministers decision.

[48]

British Columbia submits the current claim can be characterized as an
action seeking to vary the order made by the Director, through an artful
pleading that is more properly addressed through judicial review with only a
thin pretense to establishing a private wrong:
TeleZone
at paras. 60, 78.
I would agree with British Columbia to this extent: there is a substantial
practical overlap between increased benefits pursuant to the
CVAA
and
the damage award Mr. Levy seeks.

[49]

If the question is asked, in Binnie J.s words in
TeleZone
,
[w]hat is the practical benefit to a litigant who wants compensation rather
than a reversal of government decision (para. 27), it is arguably unclear
whether or not there is any practical benefit to bringing the action by way of
a civil claim instead of through judicial review. Moreover, unlike in
TeleZone
,
which operated within a statutory scheme directing appeals from ministerial
decisions to the Federal Court, the legislative scheme operative here  the
CVAA
 describes a clear process for judicial review with a strong privative clause.

[50]

On the other hand, as Mr. Levy submits, the claim may be
characterized as disclosing a private cause of action, a valid action for
damages that he should be entitled to pursue:
TeleZone
at para. 76.
Mr. Levy submits he is not challenging the validity of the Directors
decision, but rather is using the decision to demonstrate a private law wrong,
the breach of contract. Moreover, the Supreme Court of Canada indicated the
defence of statutory authority may be raised by the government body in the
damages action itself as a defence. Such an argument would function as a
defence to the civil claim and does not go to jurisdiction:
TeleZone
at para. 69.

[51]

In my view, there is at least an arguable case that Mr. Levys
civil action is with merit. At the very least, on my reading of
TeleZone
,
it is not plain and obvious his claim discloses no reasonable cause of action.
Therefore, I am not persuaded that there was any error of law made by the
judge. He considered the submissions of both the parties, and was persuaded by Mr. Levys
characterization, holding:

[24]
Mr. Levy does not challenge the Directors decisions or seek a review of
them. He does not suggest that those decisions were not open to the Director
under the
Act
. What he does say is that those decisions were in breach
of the Directors obligations under the settlement agreement, not that they
were
ultra vires
the
Act
. On the face of the pleadings, he
pursues what is essentially a private wrong seeking specific performance and
damages.
Consequently, at this stage, I do not see this as a case where Mr. Levy
could accomplish what he seeks to achieve through judicial review
; see
Canada
(Attorney General) v TeleZone Inc.
, 2010 SCC 62.

[Emphasis
added.]

[52]

I see no error in the judges reasoning on this point. The decision to
strike pleadings based on an abuse of process is a discretionary one entitled
to deference. It cannot be said that it was plain and obvious
at this stage
that Mr. Levys claim was bound to fail.

Conclusion

[53]

In the result, I am of the opinion that the appeal should be dismissed,
for these reasons, and for substantially the reasons of the judge below.

The
Honourable Mr. Justice Savage

I agree:

The Honourable Mr. Justice
Willcock

I agree:

The Honourable Mr. Justice Hunter


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Singh v. Workers Compensation Board of British
  Columbia,

2018 BCCA 49

Date: 20180201

Docket: CA44252

Between:

Manoj Singh aka
Mike Singh, Seattle Environmental
Consulting Ltd., Shawn Singh, ESS Environmental Ltd.

Appellants

(Plaintiffs)

And

Workers'
Compensation Board of British Columbia
doing business as WorkSafe BC, Nick Bower, Ben Parkin,
John Beckett, Lynn Bueckert, Margaret McNeil,
Tazeem Nathoo, Brooks Patterson, Lillian White,
Alan Cooke and Diana Miles, Ian Shaw

Respondents

(Defendants)

Before:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Savage

The Honourable Mr. Justice Hunter

On appeal from: An order
of the Supreme Court of British Columbia, dated
January 30, 2017 (
Singh v. Workers Compensation Board of British Columbia
,
2017 BCSC 138)

Oral Reasons for Judgment

Acting on behalf of himself and

Seattle Environmental Consulting Ltd.:

M. Singh

Acting on behalf of himself and

ESS Environmental Ltd.

S. Singh

Counsel for the Respondent:

G.B. Gomery, Q.C.

G. Hoekstra

Place and Date of Hearing:

Vancouver, British
  Columbia

February 1, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

February 1, 2018

Summary:

Appeal from an order
striking a notice of civil claim on the basis the: (a) an action does not lie
against the lawyers who acted against the appellants in other litigation
involving the appellants; (b) the claims were statute barred; (c) the action was
an abuse of process; and (d) the allegations are scandalous and without merit.
The appellants contend their pleadings should not have been struck. They also
contend the chambers judge was biased, in particular, because he refused to
grant a right of audience to a former lawyer who had recently become a director
the corporate appellants. They say the judge was improperly briefed before
the hearing because he was aware of previous decisions in which the former
lawyer had been denied a right of audience. Held:  Appeal dismissed. The
chambers judge was correct in striking the notice of civil claim. The
allegation of bias is without merit. It is not improper for judges to inform
themselves of relevant, or potentially relevant, authorities in preparation for
a hearing.

[1]

FRANKEL J.A.
: This appeal is brought from the order of Justice
Kent of the Supreme Court of British Columbia dismissing an action. That order
was made on an application to strike the notice of civil claim brought by the
respondents pursuant to Rule 9-5(1) of the
Supreme Court Civil Rules
. The
chambers judges reasons are indexed as 2017 BCSC 138.

[2]

At the outset of his reasons the chambers judge reviewed the history of the
litigation between the parties. There is no need to repeat it now in any
detail.

[3]

The appellants are in the business of asbestos inspection and abatement.
For several years, the Workers Compensation Board has taken steps to require
the appellants to comply with the applicable health and safety regulations. The
appellants are of the view the Board has targeted them because of the ethnicity
of Manoj Singh and Shawn Singh who are, respectively, the principals of Seattle
Environmental Consulting Ltd. and ESS Environmental Ltd.

[4]

At para. 45 of his reasons, the chambers judge summarized his reasons
for striking the notice of civil claim:

·

As a matter of law there cannot exist any cause of action against
the lawyers for the matters alleged;

·

Section 113(4) of the [
Workers Compensation Act
, R.S.B.C.
1996, c. 492] is also a complete defence to the claim for all defendants;

·

The plaintiffs are attempting to re-litigate claims that have
previously been struck out/dismissed by the Court, a classic example of abuse
of process;

·

The conduct of the plaintiffs and the present claim display all
of the hallmarks commonly seen with vexatious litigants, including numerous
technical deficiencies, causes of action unknown at law, and repeated improper
and scandalous allegations that plainly have no merit.

[5]

The appellants contend that the chambers judge erred in striking their
pleadings, provided inadequate reasons for doing so, and displayed clear bias
and a lack of impartiality. They list eight grounds of appeal in their factum. They
go so far as to allege the judge was improperly briefed prior to the hearing.

[6]

In my view, all of the appellants arguments are devoid of merit. With
respect to the decision to strike the pleadings, I am in substantial agreement
with the chambers judges reasons and, therefore, need say no more in that
regard.

[7]

Alleging actual bias is a serious accusation. Regrettably, this is not
the first time the appellants have made that allegation against a judge: see
Workers
Compensation Board of British Columbia v. Seattle Environmental Consulting Ltd.
,
2017 BCCA 19 at paras. 112
−
116,
407 D.L.R. (4th) 484 (
Seattle No. 1
); and
Seattle Environmental
Consulting Ltd. v. Workers Compensation Board of British Columbia
, 2017
BCCA 386 at paras. 21
−
22.
In addition, in
Singh v. British Columbia (Workers Compensation Board)
(January
29, 2016), Vancouver Registry No. S150011 at paras. 25
−
39 (B.C.S.C.), the
appellants alleged bias against the British Columbia Human Rights Tribunal and
the Tribunal member who summarily dismissed their racial discrimination
complaint against the Board and two of its employees.

[8]

Nothing in the transcript of the hearing before the chambers judge is
capable of supporting a finding of either actual bias or a reasonable
apprehension of bias. In particular, the allegation that the judge was
briefed before the hearing is baseless. Given the extremely serious nature of
that allegation, I will address it more fully.

[9]

The allegation that the chambers judge was briefed is set out as a ground
of appeal in the appellants factum in the following terms:

A travesty of justice occurred
in that Mr. Justice Kent received a briefing prior to the commencement of the
hearing, about the audacity of Mr. Pyper requesting leave to speak for the
corporate Appellants [in the] court below.

The word audacity does not appear in the transcript of the
hearing.

[10]

The circumstances relating to Gerhard Pypers request to speak and the
denial of that request are as follows.

[11]

On
November 8, 2016, the respondents filed a notice of application seeking an
order striking the notice of civil claim and dismissing the action. That
application was returnable on January 23, 2017. On January 16, 2017, the
appellants filed their response to that application. The Singhs signed that
response on behalf of themselves and their respective companies.

[12]

At
one time, Mr. Pyper had been licenced to practice law in British Columbia and
had appeared as counsel for the Singhs and their companies. After Mr. Pyper
ceased to be licenced to practice he was appointed as a director of the
companies and, in that capacity, sought to speak for them in court.

[13]

On
December 15, 2016, this Court heard the case referred to above as
Seattle
No. 1
. A single factum had been filed by counsel acting on behalf of the
Singhs and Seattle Environmental Consulting; ESS Environmental was not a party
to that appeal. Prior to the hearing, Seattle Environmental Consulting filed a
notice of intention to act in person.

[14]

When the case was called, counsel who had signed the factum appeared for
the Singhs. Mr. Pyper appeared and sought leave to address the Court on behalf
of Seattle Environmental Consulting. The Court declined to grant Mr. Pyper a
right of audience. In explaining why that decision was taken, Justice Savage stated,
in part (at para. 16):

Mr. Pypers appointment as a
director is designed to circumvent the fact that he is not currently licenced
to practice law in this province. There is no suggestion that there is any
other reason for his appointment. It would not be proper to hear from Mr. Pyper.

[15]

Returning
to the case at bar, on January 17, 2017, respondents counsel sent a letter to
the appellants advising them that should Mr. Pyper seek leave to speak to
the motion to strike, counsel would draw
Seattle No. 1
to the presiding judges
attention.

[16]

On
January 19, 2017, the companies filed a notice of application returnable on
January 23, 2017, seeking an order that Mr. Pyper be permitted to speak to the
motion to strike on their behalf. In that notice, the companies stated that if
their application was opposed, then they would seek costs against the
respondents.

[17]

When court convened on January 23, 2017, Mr. Pyper introduced himself
and stated he appeared for the two companies. In response, the chambers judge
stated:

Well, Mr. Pyper, I have had occasion
this morning to read the Court of Appeal decision [in
Seattle No. 1
],
which would seem to suggest that you dont get to first base on your ability to
represent the company [
sic
].

[18]

Mr.
Pyper then made submissions as to why he should be allowed to speak on behalf
of the companies. During those submissions, the judge referred to the fact that
in another matter, Justice Verhoeven had expressed concerns with respect to Mr.
Pyper having appeared on behalf of Seattle Environmental Consulting and, because
of those concerns, had directed a copy of his reasons be sent to the Law
Society: see
Singh v. Nielsen
, 2016 BCSC 2331 at paras. 36
−
42, referred to in
Seattle
No. 1
. Although the respondents counsel took no position with respect to
Mr. Pypers participation, he did advise the chambers judge that Justice
Leask had refused to grant Mr. Pyper a right of audience the previous week.

[19]

The
chambers judge refused to allow Mr. Pyper to speak on behalf of the companies. After
doing so, the judge stated Mr. Pyper was entitled to remain in the courtroom
and was not precluded from discussing the companies affairs with the Singhs.

[20]

The
appellants contend the chambers judges knowledge of
Seattle No. 1
,
evinces that he inappropriately received information concerning Mr. Pyper in advance
of the hearing. That contention is not supported by any evidence. The pejorative
inference the appellants ask this Court to draw amounts to gross speculation. All
that can be said is that the judge, knowing he would be hearing an application
to grant Mr. Pyper a right of audience, made himself aware of recent relevant
authority.

[21]

In
ICBC v. Patko
, 2008 BCCA 65 at para. 37, 290 D.L.R. (4th) 687, Chief
Justice Finch stated that, in deciding a matter, it is not improper for judges
to consult, refer to or rely on authorities not referred to or relied on by
the parties. It is similarly not improper for judges to inform themselves of
relevant, or potentially relevant, authorities in preparation for a hearing.

[22]

I
would dismiss this appeal.

[23]

SAVAGE
J.A.
: I agree.

[24]

HUNTER
J.A.
: I agree.

[25]

FRANKEL J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Frankel