COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Gichuru v. Pallai,

 

2018 BCCA 422

Date: 20181107

Docket: CA44485

Between:

Mokua Gichuru

Appellant/Applicant

(Petitioner)

And

Mark Pallai and The BC Human Rights Tribunal

Respondents

(Respondents)

Before:

The Honourable Mr. Justice Savage

(In Chambers)

On appeal from: An order of the Supreme Court of British Columbia, dated
June 1, 2017 (Gichuru v. Pallai, 2017 BCSC 1083, Vancouver Registry S128298);
and an order of the Court of Appeal of British Columbia, dated March 7, 2018
(Gichuru v. Pallai, 2018 BCCA 78, Vancouver Registry S128298).

Oral Reasons for Judgment

The Appellant appeared in person:

M. Gichuru

Counsel for the Respondent:

D. Burnett

Place and Date of Hearing:

Vancouver, British Columbia

November 7, 2018

Place and Date of Judgment:

Vancouver, British Columbia

November 7, 2018

 

Summary:

The applicant applies for a stay of two orders pending determination of his application for leave to appeal to the Supreme Court of Canada. Held: application dismissed. Assuming that the modified merits requirement has been met – that there is some likelihood that leave to appeal would be granted – the applicant has not satisfied the other two criterion favouring a stay. The applicant has not convinced the court that he would suffer irreparable harm if the stay was refused nor does the balance of convenience favour a stay.

[1]             SAVAGE J.A.: The applicant, Mokua Gichuru, applies for a stay of an order of this Court pending determination of his application for leave to appeal to the Supreme Court of Canada. The order of this Court prevents him from commencing any proceeding in the BC Supreme Court without leave of the court until he has paid the various orders for costs against him. The order of this Court is marked as Schedule “A” to this decision.

[2]             By way of background, the Mr. Gichuru sought judicial review of a decision made by the BC Human Rights Tribunal (the “Tribunal”) dismissing his complaint that the respondent, Mark Pallai, terminated his tenancy in retaliation for an earlier complaint he had made to the Tribunal about the respondent, contrary to s. 43 of the Human Rights Code, R.S.B.C. 1996, c. 210. In reasons pronounced June 1, 2017, and indexed as Gichuru v. Pallai, 2017 BCSC 1083, the petition was dismissed. Costs of the petition were awarded to Mr. Pallai as special costs.

[3]             The Supreme Court judge, who dismissed the petition, ordered that Mr. Gichuru be prohibited from filing any actions or proceedings in any registry of the British Columbia Supreme Court until all Certificates of Costs issued by the Supreme Court and Court of Appeal, now and in the future, had been paid in full. The order, akin to a vexatious litigant order, was made by the judge on his own motion pursuant to his inherent jurisdiction to guard against an abuse of the process of the court.

[4]             The judge considered that such an order was required in this case given Mr. Gichuru’s litigation history and failure to pay costs orders when he is the unsuccessful party. The judge said this:

[50]      …what is particularly disturbing in this case, is that Mr. Gichuru wishes to rely on rules when it suits him, and ignore rules when it does not. He seeks monetary redress against those he litigates against, but when he is not successful, he does not deal with the monetary consequences awarded against him.

…

[52]      Mr. Gichuru, I find, did not follow the rules of court because it was not convenient for him to do so. Likewise, Mr. Gichuru has ignored orders for costs and, rather, has paid the order for security of costs, again because it was convenient for him to do so. He is admittedly litigious and he wants to litigate. He does not want to deal with the consequences of his litigation, which are orders for costs, which he ignores, in this case for four or five years, and frankly he proceeds on his merry way using the resources of the court and ignoring the obligations that he has to pay for costs to parties that he has forced into court and has been unsuccessful against.

[53]      There is no application before me today to declare Mr. Gichuru a vexatious litigant, though the facts in my view justify such an application. I understand that it might not be in anyone’s interest to do so, as it would only provide a further opportunity for Mr. Gichuru to do what he apparently likes to do, which is to litigate and cause discomfort, real and financial, to virtually anyone he comes in contact with. As such, I can understand why one would not want to have brought on such an application.

…

[57]      As a judge of this court, I, like other judges, am responsible to ensure that judicial resources are allocated in an efficient manner, and it is completely inappropriate, in my view, to allow an individual to wreak havoc on those he is in litigation with when he chooses to do so if he ignores the obligations which arise when one is unsuccessful in litigation, and that is an obligation in costs.

[58]      Mr. Gichuru, because of his legal training, has the ability to litigate at no cost to him other than his time. Those who he litigates against have to find the resources to pay lawyers, and even if they succeed in getting costs, that is only a small reflection of what an individual must actually pay.

[59]      As a judge of this court, I must protect the integrity of this court and make the courts available for those who need redress, but I feel I must act when I have an individual in front of me who uses litigation as a weapon or litigates for sport or profit as it appears Mr. Gichuru likely does. He wants his days in court, but he refuses to be responsible for his losses to others, who then are in fact the victims of his actions.

[60]      I am directing that Mr. Gichuru is not entitled to file any further actions in any registry of the British Columbia Supreme Court until such time as all certificates of costs issued by the British Columbia Supreme Court now or in the future or any certificate of costs issued by the Court of Appeal now or in the future are paid in full and that proof of such payment is provided.

[5]             In reasons for judgment pronounced March 7, 2018, and indexed as Gichuru v. Pallai, 2018 BCCA 78, this Court dismissed Mr. Gichuru’s appeal, but modified the terms of the order made in the court below by: (1) setting aside the order for special costs and substituting in its place an order of costs at Scale B; and (2) varying the term of the “vexatious litigant” order so as to provide that Mr. Gichuru cannot institute any legal proceedings in any registry of the British Columbia Supreme Court, without leave of that court, until he has paid in full all of the outstanding costs orders against him.

[6]             In coming to this conclusion, the Court rejected the applicant’s contention that s. 18 of the Supreme Court Act, R.S.B.C. 1996, c. 443, exhausts the Supreme Court’s ability to control its own process in respect of vexatious litigants. The Court held that a Supreme Court judge has inherent jurisdiction to make orders controlling its own process, including through the application of the common law doctrine of abuse of process.

[7]             The Court reviewed the decision in United States of America v. Shulman, 2001 SCC 21 at para. 33, where it was said that an appellate court “has, like all courts, an implied, if not inherent, jurisdiction to control its own process, including through the application of the common law doctrine of abuse of process”. The Court found that the Supreme Court is able to rely on its inherent jurisdiction to control its own process and make the kind of order appealed.

[8]             That said, the Court determined that the order below was too broadly framed because it applied to costs awards that may be made against Mr. Gichuru in the future and did not provide him with an opportunity to seek leave of the court to commence future legal proceedings. The Court therefore varied the order to that found in Schedule “A”. Mr. Gichuru then applied to reopen the Court’s decision, but that request was denied. He then applied for leave to appeal to the Supreme Court of Canada. That application is pending.

[9]             Mr. Gichuru seeks the following orders:

1.     That the order of this Court pronounced March 7, 2018, that Mr. Gichuru cannot institute any legal proceedings in any registry of the British Columbia Supreme Court without leave of that court, until he has paid in full all of the outstanding costs orders against him (including the costs of this appeal) as ordered by all courts in this province, is stayed pending the final determination of the matter by the Supreme Court of Canada;

2.     That the order of this Court pronounced March 7, 2018 awarding costs of the appeal and costs of the petition in the British Columbia Supreme Court in favour of Mr. Pallai be stayed pending the final determination of the matter by the Supreme Court of Canada.

[10]         Mr. Gichuru purports to bring this stay application pursuant to s. 18(2) of the Court of Appeal Act, R.S.B.C. 1996, c. 77. In my view, that provision does not apply, but nothing turns on that. Jurisdiction to stay an order made by a provincial appellate court, pending an application for leave to appeal to the Supreme Court of Canada, is found in s. 65.1 of the Supreme Court Act, R.S.C. 1985, c. S‑26: see Anderson v. British Columbia (Securities Commission), 2004 BCCA 326 at para. 3 (Rowles J.A. in Chambers); KRG Insurance Brokers (Western) Inc. v. Shafron, 2008 BCCA 411 at paras. 10‑11 (Donald J.A. in Chambers); Byatt International SA v. Canworld Shipping Company Limited, 2013 BCCA 558 at para. 2 (Harris J.A. in Chambers).

[11]         Section 65.1(1) provides as follows:

The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.

[12]         The parties agree that this stay motion falls to be determined on application, in modified form, of the three-stage test stated in RJR‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311:

1)  that there is some merit to the appeal in the sense that there is a serious question to be determined;

2)  that the applicant would suffer irreparable harm if the stay was refused;

3)  that, on balance, the inconvenience to the applicant if the stay was refused would be greater than the inconvenience to the respondent if the stay was granted.

[13]         In the context of an application for leave to appeal to the Supreme Court of Canada, the merits component of the test engages s. 40 of the Supreme Court Act and the question of whether there is some merit to the applicant’s contention that the issues identified on the leave application raise questions of public importance that ought to be decided by the Supreme Court of Canada. As Justice Harris explained in Byatt International SA at para. 12:

…the merits test involves examining whether the issue raised on the appeal is one of public importance so that the Supreme Court might grant leave to hear an appeal. The issue is not directly whether or not the appellate court has made an error in its order. The test involves considering whether there is any likelihood that the Supreme Court of Canada will grant leave to appeal: A.A. v S.N.A., 2007 BCCA 375.

[14]         Mr. Gichuru seeks leave to appeal to the Supreme Court of Canada on four issues, the first three of which are central to the resolution of this application:

1.     Does the court’s inherent jurisdiction include a power to restrict access to the court?

2.     If so, does the enactment by the Legislature of a statute permitting the court to restrict a person’s future access to the court replace or modify the court’s inherent jurisdiction?

3.     Is the court required to observe the principles of natural justice when exercising its inherent jurisdiction?

4.     What is the appropriate legal test under s. 43 of the Human Rights Code, R.S.B.C. 1996, c. 210, and for “anti‑retaliation” provisions in human rights legislation generally?

[15]         Mr. Gichuru says his leave application has sufficient merit to warrant the stay order he seeks. He submits that this Court’s decision on the first two questions is in conflict with the jurisprudence of other provincial appellate courts. On this point, he cites Lukezic v. Royal Bank of Canada, 2012 ONCA 350 at paras. 9‑11. He argues that the third question was resolved in a way that was contrary to the principles of natural justice.

[16]         I understand Mr. Gichuru’s complaint to be that he was not given advance notice that what amounts to a vexatious litigant order might be considered. The Court addressed this matter noting that the applicant, who trained as a lawyer, was able to make full written and oral submissions on appeal with respect to the propriety of the order. Nevertheless, Mr. Gichuru submits there is sufficient prospect that the Supreme Court of Canada will decide that the issues he has identified raise questions of public importance that should be resolved by the Supreme Court of Canada.

[17]         Mr. Gichuru says further that irreparable harm would be occasioned if the stay is not granted. As I understand his argument he says: (1) that he has been “subject to a campaign of defamation by certain members of the Vancouver swing dance community” for which he intends to file a defamation action, and that the applicable limitation period for filing an action expires on or about November 14, 2018, and the existence of the vexatious litigant order sought to be appealed impairs his ability to pursue that action; and (2) that he is under investigation by the Law Society of British Columbia as a result of the order and that its existence interferes with his plan to return to the practice of law (I understand that he currently holds non‑practising status).

[18]         Mr. Gichuru says that because the merits test is met and irreparable harm would be caused if the stay was not granted, the balance of convenience favours granting the stay.

[19]         In reply, Mr. Pallai says there is no merit in the application for leave to appeal, there is no irreparable harm, and that the balance of convenience favours denying the stay. On the issue of irreparable harm, he notes that Mr. Gichuru is free to seek leave to commence his defamation action and provides no explanation for why he has not done so. Mr. Pallai submits that the balance of convenience does not support the granting of the stay given the applicant’s right to seek leave to file an action, including his proposed claim for defamation.

[20]         Although in cases where a stay is sought pending leave to appeal to the Supreme Court of Canada, such an application engages a public importance aspect, it is well-established that the merits threshold on an application of this kind is a low one and that it is generally neither necessary nor desirable to engage in a prolonged examination of the question. I do not propose doing so in this case but proceed on the basis that the application for leave to appeal to the Supreme Court of Canada cannot be said to be frivolous or vexatious and that the first part of the RJR‑MacDonald test is met.

[21]         In my view, Mr. Gichuru has not shown that he would suffer irreparable harm if the stay is not granted. With respect to the vexatious litigant term of the order, Mr. Gichuru has not been denied access to the courts. The order, as varied by this Court, provides him with an avenue for pursuing his proposed defamation action if he can satisfy a judge of the Supreme Court that leave to proceed should be granted. He has not made that application.

[22]         The second matter Mr. Gichuru raises concerns the impact of not staying the order on proceedings that may occur with respect to the Law Society. I am unable to see how the granting or not granting of a stay in respect of this Court’s order could reasonably have an impact on any proceedings before the Law Society.

[23]         Mr. Gichuru also referred me to the decision of this Court in Foy v. Tranfo, 2011 BCCA 494. That decision concerned the unusual circumstances where costs were awarded against a litigant who did not request an order in the court below or seek to defend the making of an order on appeal (see paras. 21‑22). The court held that it nevertheless was appropriate to award costs following the event. The case has no application here.

[24]         As the chambers judge observed, Mr. Gichuru displays an enthusiasm for engaging in litigation but without a concomitant willingness to abide orders obliging him to pay costs if unsuccessful. As Mr. Pallai submits, Mr. Gichuru displays a penchant for commencing multiple proceedings, appealing them to the fullest extent possible (the current leave to appeal application with the Supreme Court of Canada is, I believe, his fourth) and does not pay court costs when ordered against him.

[25]         There is no evidence before me that, if Mr. Gichuru is successful in obtaining leave to appeal, he will have difficulty recovering costs that may, by then, have been paid to Mr. Pallai.

[26]         In my view, then, the balance of convenience favours refusing the stay. The application for a stay of proceedings is dismissed.

[Discussion with counsel re: costs]

[27]         SAVAGE J.A.: Costs follow the event in this Court.

“The Honourable Mr. Justice Savage”

SCHEDULE “A”