IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Gichuru v. Pallai ,

 

2017 BCSC 1083

Date: 20170601

Docket: S128298

Registry: Vancouver

In the Matter of the Human Rights Code, R.S.B.C. 1996, C. 210 (as amended)

and in the Matter of the Decision Made by Tribunal Member Marlene Tyshynski

of the British Columbia Human Rights Tribunal dated September 26, 2012

and in the Matter of the Judicial Review Procedure Act, R.S.B.C. 1996, C. 241

(as amended)

Between:

Mokua Gichuru

Petitioner

And

Mark Pallai and the B.C. Human Rights Tribunal

Respondents

Before: The Honourable Mr. Justice Groves

Oral Reasons for Judgment

Appearing on own behalf:

M. Gichuru

Counsel for Respondent Mark Pallai:

Z.J. Ansley

Counsel for Respondent B.C. Human Rights Tribunal:

D. Cousineau

Place and Date of Trial/Hearing:

Vancouver, B.C.

April 10, 11 and 12, 2017

Place and Date of Judgment:

Vancouver, B.C.

June 1, 2017


 

[1]             THE COURT:  On April 10th through April 12th, 2017, the petitioner argued his application for judicial review of a decision of the BC Human Rights Tribunal issued on the 26th of September, 2012. As can be noted, we are now close to five years after the decision of the BC Human Rights Tribunal being made.

[2]             The procedural history of this litigation and the litigation history of these parties and their relationship is a complex one, and as noted by counsel for the respondent Pallai, the personal history between the parties is long, complex and litigious.

[3]             In a 2015 decision of the British Columbia Court of Appeal involving the same parties, Madam Justice Stromberg-Stein succinctly summarized the background. I quote from that decision at paras. 3 through 7. The citation of that decision is Gichuru v. Pallai, 2015 BCCA 81:

[3]   The parties have been involved in several related proceedings arising from their former landlord-tenant relationship. Mr. Gichuru was a tenant in an apartment building owned and managed by Mr. Pallai’s company, Palmar Properties Inc., from August 2007 to December 2010. Mr. Gichuru complained about noise from a café in the building, which culminated in him unsuccessfully suing the café and its owner in nuisance: Gichuru v. York, 2011 BCSC 342, aff’d 2013 BCCA 203. Some of the costs awarded against Mr. Gichuru for the six-day trial remain outstanding.

[4]   An email exchange between Mr. Pallai and Mr. Gichuru concerning the noise dispute was the genesis of Mr. Gichuru’s first complaint to the BC Human Rights Tribunal in relation to Mr. Pallai. He alleged discrimination on the part of Mr. Pallai on the grounds of race and colour. In April 2010, the Tribunal dismissed this complaint summarily:  Gichuru v. Pallai (No. 2), 2010 BCHRT 125. Mr. Pallai then served Mr. Gichuru with notice to end his tenancy. In October 2010, Mr. Gichuru brought a second complaint to the Tribunal, alleging that Mr. Pallai ended his tenancy in retaliation for his earlier, unsuccessful complaint.

[5]   Mr. Gichuru also brought a complaint before the Residential Tenancy Board regarding the notice of eviction and was successful on two judicial reviews of its decisions: Gichuru v. Palmar Properties Inc. (26 August 2010), Vancouver S104886 (B.C.S.C.); Gichuru v. Palmar Properties Inc., 2011 BCSC 827. Costs were awarded against Mr. Pallai in both instances, which he paid.

[6]   In 2012, Mr. Gichuru unsuccessfully sued Mr. Pallai for defamation: Gichuru v. Pallai, 2012 BCSC 693. Double costs were awarded against Mr. Gichuru: Gichuru v. Pallai, 2012 BCSC 1316. Both orders were upheld on appeal: Gichuru v. Pallai, 2013 BCCA 60. Most of the costs awarded against Mr. Gichuru remain outstanding.

[7]   On September 26, 2012, following a five-day hearing, the Tribunal dismissed Mr. Gichuru’s second complaint: Gichuru v. Pallai, 2012 BCHRT 327. On November 23, 2012, Mr. Gichuru filed the petition underlying this proceeding, challenging the Tribunal’s decision.

[4]             It is important to further explain the factual matrix which brings us to the judicial review since the words of Madam Justice Stromberg-Stein noting the history to that date. As noted earlier, the BC Human Rights Tribunal issued their reasons in this matter on the 26th of September, 2012. The petitioner filed this petition on the 23rd of November, 2012, but did not serve the petition for a year, bringing us to November of 2013.

[5]             Approximately one year after that, an application was heard on the 14th of October, 2014, before Madam Justice Fenlon, as she then was, who ordered that the petition be stayed until the petitioner posts security for costs in the amount of $7,000.

[6]             As the decision of Madam Justice Fenlon was an interim one, the appeal of that decision required leave. Madam Justice Stromberg-Stein’s decision that I have quoted was the decision of the chambers judge on that application for leave. Madam Justice Stromberg-Stein denied leave.

[7]             That decision was brought before a full panel of the Court of Appeal, and Madam Justice Bennett, in a unanimous decision, dismissed the petitioner’s application for leave with costs.

[8]             Procedurally, the matter remained in limbo for a period of time. I note here, as noted by Madam Justice Stromberg-Stein, that there was an earlier defamation action involving these parties in which the petitioner, Mr. Gichuru, still owes costs plus interest.

[9]             The costs of the Court of Appeal applications related to for security for costs. Madam Justice Stromberg-Stein’s decision and Madam Justice Bennett’s decision have not been assessed as of yet and they remain outstanding.

[10]         This is of note in my view. Mr. Gichuru owes costs to this respondent in another action in which he was not successful. He owes costs, unconfirmed at this point, in this action. The costs in the defamation action are long and outstanding and there is interest running on them.

[11]         On the 10th of February, 2017, more than two years after the petitioner had taken any steps in this proceeding, he posted the required security for costs pursuant to the Fenlon order. Then, absent any notice of intention to proceed being filed and served, a requirement under the Rules before any action is taken, Mr. Gichuru proceeded to set the hearing for petition for the dates in April when it proceeded.

[12]         That brings us to the application. Any application for judicial review requires preliminary determinations, notably what is the standard of review. I am going to be brief on this point because there does not appear to be much dispute between the parties.

[13]         As for the court determining the standard of review, the purpose in determining that is to set the context for the reviewing court’s authority or ability to find error. This court must determine whether the Tribunal made a reviewable error justifying the court’s intervention.

[14]         The Administrative Tribunals Act of British Columbia sets out the standard of review for the BC Human Rights Tribunal as correctness for all questions, except those which involve the exercise of the Tribunal’s discretion, the Tribunal’s finding of facts, and the application of common law rules of natural justice and procedural fairness by the Tribunal.

[15]         These latter types of determinations are considered discretionary decisions of the Tribunal and must not be interfered with unless, with regards to the findings of fact, there is no evidence to support them, and with regards to discretionary decisions, whether they are patently unreasonable.

[16]         In his written argument, the petitioner cites several potential errors, the first two of which, all agreed, are applications of the law to which the correctness standard is applicable.

[17]         Though he argued that four of the five remaining points of concern were errors of law or mixed fact and law, in reply the petitioner conceded that his final five arguments were essentially, under the provisions of the Administrative Tribunals Act, S.B.C. 2004 c. 45 either findings of fact or discretionary decisions for which the standard of review is that of being patently unreasonable.

[18]         I agree with the submissions of the respondent in regards to these five alleged breaches. I find them to be what I will collectively describe as discretionary decisions of the Human Rights Tribunal to which the standard of review is patently unreasonable, and I find no basis on which to determine these findings to be patently unreasonable.

[19]         The first of these is the suggestion that the BC Human Rights Tribunal breached natural justice in failing to consider Mr. Gichuru’s evidence in his complaint or his application for costs.

[20]         Having reviewed the decision, I am satisfied the Tribunal member considered all the evidence and made its decision based on the evidence and considered all that was necessary to consider in analyzing the evidence. There were findings of fact, and there is evidence to support these findings. Mr. Gichuru clearly does not accept the petitioner’s evidence, but the Tribunal member did, and set out in her reasons why she preferred his evidence in some circumstances over that of Mr. Gichuru. There is, in my view, a basis for the findings in evidence, and as such, these findings of evidence are not reviewable by this court.

[21]         The second argument of the petitioner is that the Tribunal applied the wrong test in assessing credibility. There is no merit to this argument. A review of the decision on a holistic basis suggests and confirms that this Tribunal member, the person who heard the evidence, made justifiable and rational decisions as to credibility. There is no overriding or palpable error. Better put, the decision is not patently unreasonable in her assessment of credibility, and as such, this ground for judicial review must also be dismissed.

[22]         A third argument is the Tribunal erred in admitting hearsay evidence. Hearsay evidence is of course out-of-court statements repeated in court for the proof of their contents. The Supreme Court of Canada has directed courts to make the test of necessity and reliability in any approach to the questions of hearsay, and I see nothing in the decision of this Tribunal member in considering evidence, both hearsay and otherwise, that in any way reaches the threshold of being patently unreasonable.

[23]         Evidence is often characterized as hearsay when it is not. That may be the basis for Mr. Gichuru’s misunderstanding of this concept. I find no approach to true hearsay evidence unreasonable or patently unreasonable in my reading of this Tribunal member’s decision.

[24]         A fourth alleged error is that the Tribunal failed to draw inferences against Mr. Pallai for not calling witnesses that the petitioner believes he should have. In my view there is no basis for this complaint. The hearing was lengthy and numerous aspects of evidence were considered. The primary dispute, as will be seen later, was whether or not Mr. Pallai, in purporting to evict the petitioner, had in mind a retaliatory motive and as such contravened s. 43 of the Code.

[25]         The primary and in fact the only witness that was fundamental to this issue was Mr. Pallai and the petitioner. The decision was based on a determination of intent objectively. I do not find this self-represented individual, Mr. Pallai’s efforts to defend himself one in which he failed to call evidence that would draw an adverse inference. Besides, his explanation for not wanting others involved was rational and, in all the circumstances, correct.

[26]         Finally, in terms of the fifth alleged error, it is suggested that the Tribunal member made unreasonable findings of fact not supported by the evidence. Again, this is very much a case in which the Tribunal member must assess the credibility of Mr. Pallai and determine what his motives were in doing what he did. The Tribunal member found as a fact that Mr. Pallai’s reasons were reasonable, and as such there was evidence to support her findings in regards to the s. 43 test.

[27]         Again, I do not find the petitioner’s argument in this regard persuasive, and in fact a full reading of the Tribunal decision shows findings of fact based on the evidence the Tribunal member accepted and the evidence the Tribunal member rejected. It is inappropriate for a judge on judicial review to reassess that evidence, particularly when the Tribunal member had the opportunity for viva voce evidence and the reviewing court does not.

[28]         Turning to the legal questions, I accept the argument advanced by Mr. Pallai as to how they should be resolved. The legal questions relate to whether or not the Tribunal erred in applying the wrong test under s. 43 of the Code and whether it erred in its application of the test under s. 43 of the Code.

[29]         The law which bound this Tribunal in its consideration of s. 43 is found in the case of Bissonnette v. School District 62, 2006 BCHRT 447. To summarize this case succinctly, Bissonnette stands for the proposition that the complainant must establish on a balance of probabilities that a respondent intended to engage in impugned conduct, or that the respondent can have been perceived to have engaged in the impugned conduct, in retaliation, with the element of reasonable perception being assessed from the point of view of a reasonable complainant.

[30]         Here, on the facts, the Tribunal member made findings which justify her decision. The Tribunal first asked itself whether the petitioner had established on a balance of probabilities that Mr. Pallai had contravened s. 43. The Tribunal found that Mr. Pallai was entirely sincere in his testimony and was responsive to questions relevant to the complaint.

[31]         Despite assertions from the petitioner that the Tribunal found and accepted Mr. Pallai’s evidence as credible and did not find it to be untrue or a ruse, as suggested by the petitioner, that is only an assertion of Mr. Gichuru; it is not an error.

[32]         Essentially the Tribunal member found, based on the evidence she accepted, that all aspects of the Bissonnette test had been made out by Mr. Pallai in a positive way.

[33]         I note specifically the finding in para. 103 of the decision. The Tribunal member acknowledges that the timing might lead to an inference of retaliation, but a reasonable complainant aware of the facts would not find it as such.

[34]         The petitioner attempted to argue that the Bissonnette test was not an appropriate articulation of what the Human Rights Tribunal should do in regards to s. 43. I do note that in a previous decision involving this exact petitioner, Mr. Gichuru, and the Law Society of British Columbia, citation 2010 BCCA 543, the British Columbia Court of Appeal dealt with the very same issue and the very same argument advanced by this petitioner that was made before me.

[35]         In that case as well, the petitioner attempted to allege that the Tribunal erred in applying the wrong test for discrimination under s. 43, essentially arguing against the Bissonnette test. That argument was dismissed on that direct point, and I am bound by that decision. As such, before me there is no merit in the argument advanced by the petitioner.

[36]         Finally, the petitioner argues that the Tribunal erred in its application of the test under s. 43 of the Code. Again this involves an application of the three-pronged Bissonnette test. As noted by counsel for the respondent, the petitioner has not been able to point to any case that casts doubt on the Bissonnette test or on how it was applied.

[37]         I further agree with submissions for counsel for the respondent that even if the court was able to find another potential reasonable interpretation of s. 43, that that would not in and of itself create an error sufficient to justify interference with the decision by this court. This Tribunal is, as are most professional administrative tribunals, entitled to deference in the interpretation of their own statute.

[38]         I have concluded that there is no merit to this application for judicial review and it must be dismissed. That, however, is not all I intend to say today. I wish to say a few words about access to justice, court workload, and the purposes of our court and the rule of law.

[39]         Courts exist so that those who are wronged or legitimately aggrieved have an independent branch of government available to them to address their concerns. Courts must and do give voice to those who require redress, be it from government or administrative tribunals, from criminal authorities for prosecution purposes, or from other individuals or corporations in the general civil context or one’s opponent in a matrimonial context.

[40]         We are here as a court as a method of redress for wrongs alleged or real. Suffice it to say, however, that court resources are limited and are not readily available to all, in the sense that there is not an unlimited amount of resources in the court.

[41]         I go back to the analysis stated earlier in my reasons about the litigation history involving this petitioner and those who have been, unfortunately for them, in this failed rental relationship with him.

[42]         This relationship began in 2007 and ended in 2010. It is now 2017 and we are still litigating about it. As a result of this rental relationship, Mr. Gichuru sued a neighbouring café in nuisance and his nuisance claim was dismissed. He sued his landlord at the BC Human Rights Tribunal concerning this noise dispute with the neighbouring restaurant. He alleged discrimination based on race and colour. The BC Human Rights Tribunal dismissed that complaint.

[43]         Then when he was served with a notice to end tenancy, he filed two applications for judicial review at the Tenancy Board, both of which were successful, and eventually he settled with the landlord for a modest payment.

[44]         He then sued Mr. Pallai in defamation. He lost and double costs were awarded against him.

[45]         Then there was the five-day hearing from the BC Human Rights Tribunal which resulted in a decision which was before me for judicial review.

[46]         Counsel for the respondent suggests Mr. Gichuru still owes approximately $8,500 in costs plus interest from the defamation action. I am not sure what the status is of the costs from the appeal of that defamation action, but he was unsuccessful in that appeal.

[47]         Costs were awarded in the security for costs applications in the Court of Appeal both for the hearing before Madam Justice Stromberg-Stein and the decision before the full panel rendered by Madam Justice Bennett, and it is my understanding that those costs, though awarded, have not yet been determined.

[48]         The petitioner in this action was, according to the Fenlon order, ordered to pay security for costs. When he was ordered to do so, there were numerous costs orders outstanding against him from other bits of litigation involving essentially the same parties. He paid the security for costs after two years, but in doing so he failed to deal with the previous costs awarded against him, which remain outstanding. Again, some $8,500 plus interest and at least two cost awards, which are unquantified at this point.

[49]         When I challenged Mr. Gichuru about this, I asked him if he considered himself to be a litigious person, and he readily agreed that he was. It should be noted for the record that Mr. Gichuru is a lawyer. He is apparently not practising, though he is a trained lawyer. During his presentation, frankly, when it was convenient for him to remind me that he was legally trained as a lawyer and an officer of the court, he did so. On several other occasions when it was convenient for him, he argued that he was a self-represented litigant who deserved the assistance of court or perhaps relaxation of the Rules.

[50]         As was raised by counsel for the respondent, and 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.

[51]         The best example of Mr. Gichuru wanting to rely on rules and then ignoring them at other times is this notice of intention to proceed I mentioned earlier. Mr. Gichuru is trained as a lawyer. He did nothing in this litigation for over two years. He then paid his security for costs and then unilaterally set down dates for the judicial review, essentially without consultation with the other parties. This is not something the courts would generally accept from lawyers dealing with others, and it is not something that the court should accept from lawyers representing themselves.

[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.

[54]         What is particularly disturbing in this matter is a finding last year in yet another BC Human Rights Tribunal decision Gichuru v. Purewal, 2017 BCHRT 19. Again a rental relationship, again a failed rental relationship, again a human rights complaint.

[55]         In that decision, Mr. Gichuru essentially admitted to setting up, for evidentiary purposes, an opportunity to be discriminated against so it could be taped and have that evidence to enhance his financial claim.

[56]         Reading from that decision, paras. 291, 294 and 295:

[291] I further reflect on Mr. Gichuru’s admissions that he intentionally provoked Mr. Purewal in the conversation of August 26, 2014 because he had failed to record the conversation of August 25th, 2014 and wanted to bolster his evidence. I also reflect on the fact that Mr. Gichuru has acknowledged that he declined to move out of the Gichuru Unit because he thought he might be able to extract some money from the Respondents for doing so.

[294]   As I indicated earlier in this decision, I find that Mr. Gichuru operates according to his own moral code. He does not tell lies and would not seek to mislead this Tribunal; however, Mr. Gichuru in this proceeding, has demonstrated an unusual set of ethics and perspective. I am referring to his comments respecting his justification for switching from paying his rent in cash to paying it by cheque in the face of his own knowledge that it would probably generate a reaction from the Respondents, including the distinct probability of eviction. I am referring to his evidence about the approach he took to Mr. Purewal’s attempts to provide him with an eviction notice, effectively taking advantage of Mr. Purewal’s lack of knowledge of the Residential Tenancy Act provisions for eviction, and then deliberately provoking further harassment by Mr. Purewal to capture evidence on a recorder to strengthen his case.

[295]   Provoking harassment is not to be encouraged. It flies in the face of the purposes of the Code.

[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.

[61]         I further find that in setting this matter the way he did, Mr. Gichuru purposely ignored rules he was aware of and this action is reprehensible and entitles this respondent to special costs of the hearing dates and today. Those special costs are to be paid from the money posted as security. If any funds are not allocated under that security for costs order, they are to be paid to the credit of costs in the defamation action involving the same two parties.

[62]         I am dispensing with the requirement for Mr. Gichuru to sign any order. It should be signed by both counsel and sent to me for signature. Thank you.

“Groves, J.”