COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Friesen v. Kaplan,

 

2018 BCCA 352

Date: 20180911

Docket: CA45089

Between:

Navot Ben Abraham aka Seann James Friesen

Appellant

(Petitioner)

And

Rabbi Meir Kaplan, Chabad of Vancouver Island
and Chabad of Downtown Vancouver

Respondents

(Respondents)

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Hunter

On appeal from:  An order of the Supreme Court of British Columbia, dated
February 6, 2018 (Friesen v. Kaplan, Victoria Docket S173684).

Oral Reasons for Judgment

The Appellant, appearing in person:

Navot Ben Abraham aka
Seann James Friesen

Counsel for the Respondents Rabbi Meir Kaplan and Chabad of Vancouver Island:

T.R. Fraser

Place and Date of Hearing:

Victoria, British Columbia

September 11, 2018

Place and Date of Judgment:

Vancouver, British Columbia

September 11, 2018


 

Summary:

The appellant seeks a review of an order that he pay security for costs of the appeal. Held: application dismissed. The onus is on the appellant to establish that security for appeal costs should not be ordered. The chambers judge did not err in holding that the appellant had not met that onus.

[1]             HUNTER J.A.: The appellant seeks a review under s. 9(6) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, of a decision of a judge in chambers ordering him to pay security for costs of the appeal in the amount of $3,000 and staying the appeal pending such payment. The primary basis for the application to discharge the security for costs order is that the appellant says that he is impecunious and cannot afford to pay the costs order.

[2]             The background to this application is as follows. In April 2017, the appellant brought an action for damages against the respondents in the Provincial Court of British Columbia. He filed a second action against the respondents in Provincial Court in August 2017. In September 2017, the first action was summarily dismissed by a Provincial Court Judge on the basis that it was frivolous, without reasonable grounds and an abuse of the Court’s process. In November 2017, the second action was summarily dismissed by a second Provincial Court Judge, apparently for similar reasons.

[3]             The appellant sought judicial review from these decisions in the Supreme Court of British Columbia. On February 6, 2018, this application for judicial review was dismissed. The appellant has appealed that decision.

[4]             The underlying claim of the appellant is somewhat difficult to discern. The appellant claims that he had a contract with the respondents for services rendered which the respondents breached. The appellant says that he disclosed the income he should have received to Revenue Canada and has been assessed tax on that disclosed but unpaid income. He asserts that the income tax assessment he has received from Revenue Canada constituted a declaration that the respondents owe him the amount of his claim.

[5]             On June 22, 2018, the respondents filed an application for security for costs of the appeal in the amount of $3,000. That application was heard on July 9, 2018 by a judge in chambers, who granted the order. It is this order that the appellant seeks to discharge or vary.

[6]             The standard of review by this Court of a decision of a single judge in chambers was summarized by Justice Dickson in Lungu v. British Columbia (Human Rights Tribunal), 2016 BCCA 136, in these terms:

[8]        A review application brought before a division of the court under s. 9(6) of the Act does not provide an opportunity for a rehearing of the original chambers application. The standard of review is whether the justice sitting in chambers was wrong in law, wrong in principle, or misconceived the facts. In the absence of such an error, the court will not interfere with the chambers judge’s exercise of discretion: DeFehr v. DeFehr, 2002 BCCA 139 at para 6.

[7]             The authority for a justice to order an appellant to post security for costs is contained in s. 24 of the Court of Appeal Act, which reads in relevant part as follows:

(1)        A justice may order that an appellant pay to or deposit with the registrar security for costs in an amount and in a form determined by the justice.

(2)        A justice may dismiss as abandoned the appeal of an appellant who fails to comply with an order made under subsection (1).

[8]             Where such an application is made, the appellant has the onus of showing why security should not be granted: Creative Salmon Company Ltd. v. Staniford, 2007 BCCA 285 at para. 9.

[9]             Impecuniosity of the appellant is frequently raised as the reason why security for costs should not be ordered. In Chung v. Shin, 2017 BCCA 355, I summarized the practice of this Court when considering the relevance of an appellant’s ability to pay the security for costs:

If the appeal appears to be meritorious and a security order might prevent an appellant without means from pursuing it, security for costs will generally not be ordered: Gardezi v. Canadian Union of Public Employees, Local 3495, 2016 BCCA 462 at para. 10. On the other hand, if an appeal appears to be weak, the impecuniosity of an appellant will not prevent an order for security for costs from being issued, as “without an order for security for costs, the appeal is a gamble by the appellants with the respondents’ money”: Daymax Management Inc. v. WHA 820 Holdings Ltd., 2004 BCCA 414, (in Chambers) at para. 24.

[10]         On this application, while the chambers judge did not issue formal reasons, she expressed the view that the appeal did not have any apparent merit. I have reviewed the judgment of the judicial review judge and considered the appellant’s arguments, both in his written submissions and orally today. I can see no basis on which the chambers judge could be said to have erred in law or in principle, or misapprehended the facts.

[11]         I would like to add a few words about the appellant’s concern that Revenue Canada has assessed him for income taxes based on his voluntary disclosure of income he is claiming as a result of invoices issued but not paid. The assessment by Revenue Canada does not establish that the claim the appellant is making is valid. It merely reflects the return submitted by the appellant. If this appeal is unsuccessful, I would encourage the appellant to re-file with Revenue Canada and explain the circumstances in which his original return was filed.

[12]         For these reasons, I would dismiss the application to discharge the order for security for costs. I would vary the order to provide that the security must be filed within 14 days of today’s date or the appeal will stand dismissed.

[13]         BAUMAN C.J.B.C: I agree.

[14]         MACKENZIE J.A.: I agree

[15]         BAUMAN C.J.B.C: The application to vary is dismissed as indicated by Mr. Justice Hunter.

“The Honourable Mr. Justice Hunter”