COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Gonzalez v. British Columbia (Attorney General),

 

2018 BCCA 421

Date: 20181107

Docket: CA45436

Between:

Roberto Orellana Gonzalez

Appellant

(Plaintiff)

And

Attorney General of British Columbia

Respondent

(Defendant)

Before:

The Honourable Mr. Justice Savage

(In Chambers)

On appeal from:  An order of the Supreme Court of British Columbia,
dated June 14, 2018 (Gonzalez v. Workers’ Compensation Board (New Work Safe)
of B.C., Vancouver Registry S140781).

Oral Reasons for Judgment

The Appellant appeared in person:

R.O. Gonzalez

Counsel for the Respondent Attorney General of British Columbia:

M. Butler

Counsel for Workers’ Compensation Board:

G. Hoekstra

Place and Date of Hearing:

Vancouver, British Columbia

November 7, 2018

Place and Date of Judgment:

Vancouver, British Columbia

November 7, 2018

 

Summary:

The appellant brings an application for leave to appeal a decision of a chambers judge denying him leave to file a Notice of Civil Claim. The respondent brings an application to have the appellant declared a vexatious litigant. Held: respondent’s application allowed. Appellant’s application amended to include an application for an extension of time, which is dismissed. The appeal does not require leave but does require an extension of time. The appeal has no merit and therefore an extension of time would not be in the interests of justice. The appellant is a vexatious litigant. He has repeatedly filed unmeritorious applications and appeals in this Court and has persisted in doing so in the face of multiple findings of judges and divisions of this Court that those applications and appeals lack merit.

[1]             SAVAGE J.A.: Roberto Orellana Gonzalez brings an application for leave to appeal the June 14, 2018 decision of a chambers judge, Mr. Justice Saunders, denying him leave to file a Notice of Civil Claim. Mr. Gonzalez also seeks to add as a party the Workers’ Compensation Board of British Columbia. The Attorney General of British Columbia, the respondent in the appeal, brings an application to have Mr. Gonzalez declared a vexatious litigant in this Court and seeks ancillary orders. The Attorney General opposes Mr. Gonzalez’s application for leave to appeal on the ground that his appeal has no merit.

[2]             Mr. Gonzalez has a long-standing dispute over what he perceives to be the unjust treatment of his claim for compensation arising from a workplace accident on September 18, 1995. His notice of application for leave to appeal, and his argument before me, makes it abundantly clear that his complaint continues to be what he perceives to be the unjust treatment of his injury claim regarding matters that occurred over 22 years ago. I will summarize the history of related proceedings in this matter.

[3]             The history of the underlying complaint is set out in the reasons of Madam Justice Kloegman indexed as Gonzalez v. British Columbia (Workers’ Compensation Board), 2010 BCSC 476. Mr. Gonzalez challenged various decisions made in his claim for workers’ compensation but his petition was dismissed, and further appeals were dismissed, including an appeal to the Supreme Court of Canada.

[4]             After his petition was dismissed by Madam Justice Kloegman, Mr. Gonzalez commenced an action in the Supreme Court of British Columbia claiming damages arising from various determinations of the Workers’ Compensation Board and Workers’ Compensation Appeal Tribunal, but that action was dismissed by Mr. Justice Myers for reasons indexed as Gonzalez v. British Columbia (Workers’ Compensation Board), 2011 BCSC 977.

[5]             Mr. Justice Myers held that bald assertions about bad faith, discrimination and Canadian Charter of Rights and Freedoms breaches in dealing with Mr. Gonzalez’s claim were without any factual basis in the pleadings, and that it was plain and obvious that the statement of claim did not disclose a cause of action (paras. 9‑11). Many of the assertions were duplicative of matters which had been raised in the petition and dismissed by Madam Justice Kloegman.

[6]             Mr. Gonzalez appealed the decision of Mr. Justice Myers and sought indigent status in this Court. His application for indigent status was dismissed by Mr. Justice Low of this Court on August 26, 2011, on the basis that there was no merit to the appeal. Mr. Gonzalez applied to extend the time for filing and serving his appeal book and factum, but that application was dismissed by Madam Justice Huddard on December 8, 2011, on the basis that there was no merit to the appeal.

[7]             An application to review the order of Madam Justice Huddard was dismissed by this Court for reasons indexed as Gonzalez v. British Columbia (Workers’ Compensation Board), 2012 BCCA 97. The Supreme Court of Canada dismissed his further application for leave to appeal to that court on September 27, 2012: [2012] S.C.C.A. No. 206.

[8]             Mr. Gonzalez then commenced a fresh action against the Workers’ Compensation Board which was heard and dismissed by Mr. Justice Grauer on June 19, 2014. Mr. Justice Grauer concluded that the new action was an abuse of process and declared Mr. Gonzalez a vexatious litigant.

[9]             Mr. Gonzalez filed a notice of application for leave to appeal the decision of Mr. Justice Grauer. Leave was not required so Mr. Gonzalez’s notice was amended to be an application for an extension of time to file a notice of appeal. That amended application was dismissed by Madam Justice Garson in oral reasons for judgment dated September 19, 2014, on the basis that the appeal had no merit.

[10]         Mr. Gonzalez applied to vary the order of Madam Justice Garson, but that application to vary was dismissed by a division of this Court for reasons indexed as Gonzalez v. British Columbia, 2014 BCCA 468. An application for leave to appeal the decision of the Court of Appeal was then dismissed by the Supreme Court of Canada on April 23, 2015: [2015] S.C.C.A. No. 21.

[11]         Next, Mr. Gonzalez applied to reinstate his appeal in this Court from Madam Justice Kloegman’s decision dismissing his petition for judicial review (referenced in para. 3 above). On May 25, 2016, Mr. Justice Tysoe determined that it was not in the interests of justice to reinstate Mr. Gonzalez’s appeal in this Court because there was no merit in the appeal.

[12]         Mr. Gonzalez next applied to vary the order of Mr. Justice Tysoe but that application was dismissed by a division of this Court for reasons indexed as Gonzalez v. British Columbia (Workers’ Compensation Board), 2016 BCCA 394. Mr. Justice Willcock, for the Court, noted that Mr. Gonzalez’s written submission reiterated his claim for substantive relief that he had sought before Madam Justice Kloegman in 2010.

[13]         Mr. Gonzalez then applied for leave to appeal to the Supreme Court of Canada but his application was dismissed on March 23, 2017: [2016] S.C.C.A. No. 528. Mr. Gonzalez asked the Supreme Court of Canada to reconsider his application for leave but his motion for reconsideration was not accepted for filing, by correspondence from the Court on January 16, 2018.

[14]         Finally, Mr. Gonzalez sought leave to file a Notice of Civil Claim against the Attorney General on June 14, 2018. Mr. Justice Saunders denied leave because his Notice of Civil Claim disclosed no cause of action and was a collateral attack on the original decision of the Workers’ Compensation Board. The order denying leave was pronounced on the same day. Mr. Gonzalez seeks leave to appeal Mr. Justice Saunders’s decision to this Court.

[15]         Although Mr. Gonzalez has applied for leave to appeal, and the Attorney General has opposed his application for leave, in my view, he does not require leave. Section 7 of the Court of Appeal Act, R.S.B.C. 1996, c. 77 provides that “limited appeal orders”, as defined in Rule 2.1 of the Court of Appeal Rules, B.C. Reg. 297/2001, are orders that can only be appealed with leave from a justice of this Court. Section 6(2) of the Court of Appeal Act provides that other enactments can also require that leave to appeal be sought before commencing an appeal. The order Mr. Gonzalez disputes is a denial of leave to commence a civil claim. This kind of order does not fall under any of the categories listed in Rule 2.1, nor does another statute require that leave to appeal be sought.

[16]         However, Mr. Gonzalez would require an extension of time. The time limit for bringing an appeal, as provided by s. 14(1) of the Court of Appeal Act, is 30 days from the date that the order appealed from was pronounced. Mr. Justice Saunders pronounced his order on June 14, 2018. Although he has not made an application for an extension of time, I would amend his application for leave to appeal to include an application for extension of time so that the application can be properly considered. Otherwise, I would amend his application to be one converting his application for leave to appeal into a notice of appeal.

[17]         The criteria in an application to extend time to begin an appeal were set out in Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 at 259‑60 (C.A.): (1) whether there was a bona fide intention to appeal; (2) whether the respondent was informed of the intention to appeal; (3) whether the respondent would be unduly prejudiced by an extension; (4) whether there is merit in the appeal; and (5) whether it is in the interests of justice that an extension be granted. The final criterion is the ultimate question, and encompasses the first four criteria.

[18]         Although the fourth criterion is not a stringent standard, where an appeal is not only weak, but doomed to fail, it will be a decisive factor against granting an extension of time: Clock Holdings Ltd. v. Braich, 2009 BCCA 269 at para. 31 (Chambers). Put simply, it will never be in the interests of justice to provide an extension of time for an appeal that will certainly fail. In my view, this Court is also entitled to consider the merits of the case when asked to exercise its discretion to convert an application for leave to appeal into a notice of appeal.

[19]         In my view, Mr. Gonzalez’s appeal is doomed to fail. It is plainly a collateral attack on matters that have been determined conclusively in previous proceedings. He raises precisely the same matters as he has in the many previous actions and proceedings, which have been found by multiple judges in the Supreme Court of British Columbia and in this Court to have no merit. It would not be in the interests of justice to either grant an extension of time to bring a notice of appeal, nor to convert his application for leave to appeal into an appeal. His application is dismissed. It is unnecessary to consider his application to add a party in those circumstances.

[20]         Section 29 of the Court of Appeal Act, provides that where a justice is satisfied that a person has “habitually, persistently and without reasonable cause” commenced vexatious proceedings in this Court, he or she may be prohibited from commencing proceedings in this Court without leave of a justice. An order under s. 29 of the Court of Appeal Act is not one that should be made lightly, but it is an order that is, in certain circumstances, in the public interest and necessary to prevent an ongoing abuse of the Court’s process.

[21]         The purpose of s. 29 is to allow the Court to control its own process “to prevent the abuse of that process by a litigant repetitively bringing unmeritorious proceedings that result in the needless expenditure of judicial resources and cause unnecessary expense to other parties”: see Houweling Nurseries Ltd. v. Houweling, 2010 BCCA 315 at paras. 1 and 40; Dawson v. Dawson, 2014 BCCA 44 at para. 17. In Dawson, at para. 16, this Court adverted to and endorsed a non‑exhaustive list of factors that should be considered in such an application, enumerated in Re Lang Michener and Fabian (1987), 37 D.L.R. (4th) 685 (Ont. H.C.J., per Henry J. at para. 19). Not every factor will be present in every case.

[22]         I would paraphrase some of those factors as follows: (1) commencing proceedings in respect of issues already determined in prior proceedings; (2) bringing proceedings that are bound to fail or can accomplish no good result; (3) bringing proceedings for an improper purpose; (4) repeating claims that have been determined against new parties and sometimes counsel; (5) the history of the proceeding and related proceedings demonstrating an unwillingness to accept a finally determined result; (6) failing to pay costs in previous unsuccessful proceedings; and (7) persistently taking unsuccessful appeals which are without merit.

[23]         I am satisfied that Mr. Gonzalez is a vexatious litigant. While some of the vexatious conduct of Mr. Gonzalez has taken place in the Supreme Court of British Columbia, Mr. Gonzalez has also repeatedly filed unmeritorious applications and appeals in this Court arising from the decisions (1) dismissing his petition for judicial review, and (2) dismissing his actions duplicating many of the complaints arising in the judicial review. I have itemized some of the proceedings in the court below and the appeals and applications made in this Court, and further applications made to the Supreme Court of Canada. Mr. Gonzalez has persisted in these challenges in the face of multiple findings by both judges and divisions of this Court that his applications and appeals lack merit. The current proceeding simply and plainly repeats claims previously decided against him.

[24]         For the reasons above, I order, pursuant to s. 29 of the Court of Appeal Act, that from this date on, Mr. Gonzalez may not bring or commence proceedings in this Court either on his own behalf or on behalf of others, against the Attorney General of British Columbia, Her Majesty the Queen in right of the Province of British Columbia, the Workers’ Compensation Board, or any administrative tribunal that relates directly or indirectly to his claim under the Workers Compensation Act, R.S.B.C. 1996, c. 492, or otherwise arising from the injuries he suffered in September 1995, without first obtaining leave of a justice of this Court.

[25]         Costs follow the event.

[26]         I would dispense with the usual requirement that the order be signed by Mr. Gonzalez.

“The Honourable Mr. Justice Savage”