2008 BCCA 24 Shieh v. Certified General Accountants Association

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*Shieh v. Certified General Accountants Association,*
	2008 BCCA 24

Date: 20080122

Docket: CA034881

Between:

Michael Shieh

Appellant

And

Certified General Accountants Association of British Columbia

Respondent

Before:	The Honourable Mr. Justice Chiasson
	(In Chambers)

In person by telephone	Appellant
R. Hungerford and S. Haywood-Farmer	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
4 December 2007
Place and Date of Judgment:	Vancouver, British Columbia
22 January 2008

Reasons for Judgment of the Honourable Mr. Justice Chiasson:

[1] On December 4, 2007, several applications potentially were before me in this matter. They included an application for indigent status filed by Mr. Shieh on March 14, 2007 and a number of applications filed by him on October 22, 2007 seeking orders relieving him from complying with a number of court rules. In addition, the respondent applied for an order dismissing the appeal on the basis Mr. Shieh had failed to comply with the Court of Appeal Act, R.S.B.C. 1996, c. 77, the Court of Appeal Rules, B.C. Reg. 297/2001, as amended and an order of Madam Justice Prowse.

[2] On October 30, 2007, Prowse J.A. dismissed Mr. Shieh’s application to dispense with the requirement of Rule 39(3), which requires parties to provide an address for service in British Columbia. She adjourned the other applications to December 4, 2007 and directed Mr. Shieh to provide an address in the Province in the interim.

[3] Mr. Shieh has failed to comply with several of the various rules relating to preparation, filing and service of notice of appeal, appeal book, appeal record and appellant’s factum, putting him in violation of Rules 11, 19, 21 and 26, in addition to Rule 39(3) mentioned above.

[4] Mr. Shieh sought the following relief from his violations of the Rules:

1. permit him to file a “brief and reply brief” longer than 30 pages because the volume of information and documents generated by the CGA Tribunal and Supreme Court hearings cannot be summarized in 30 pages;

2. accept his Appeal Record as filed;

3. permit him to file an Appeal Book larger than 300 pages in a single binder;

4. accept his USA address as the mail service address because he resides in the USA and does not have a Canadian address to serve as an address for service of documents;

5. allow both sides an additional 15 days in addition to the normal filing time because:

a. as Mr. Shieh lives in the USA, mailings and endorsements are taking longer to reach their destination than the normal time, and

b. Mr. Shieh filed his appeal record on May 4 within the required time period but it was not in the proper form; he filed a revised version shortly after the time period expired and was told by the registry that it was in proper form and was “filed timely”; he did not know it was not accepted by the registry until July.

[5] As noted, the relief sought in para. 4 was denied by Prowse J.A. At the hearing before me Mr. Shieh adduced evidence to support the difficulty he has providing an address for service in British Columbia. It is not open to me to revisit the direction of Prowse J.A., which was unequivocal:

THE COURT: Mr. Shieh, you have to provide an address in British Columbia for service. You have to. You’re obliged to. It is not good enough to say I live in California.

[….]

No. The answer is no, Mr. Shieh. You are going to have to provide an address in British Columbia. Period. There must be somebody you know –

[….]

If you’re proceeding – if you want to proceed with an appeal in British Columbia, you have to make yourself available through an address for service in British Columbia.

[.…]

That is what you are obliged to do. I will not make an order that you do not have to provide an address in British Columbia for service. You are going to have to do that. That is your choice. If you do not then you’re not going to be able to proceed because you won’t be receiving anything that’s relevant because you haven’t provided the address.

[….]

MR. SHIEH: Well, I like to comply with the rules and regulations, Your Honour. It is not my idea to violate rules, so that I don’t have the opportunity to present my case to the court.

THE COURT: That’s your choice, Mr. Shieh.

MR. SHIEH: But I don’t have the address, that’s why I made the motion to ask the court to grant me that - -

[….]

THE COURT: The answer is no, Mr. Shieh. I will not grant you that application. That application is dismissed, and I’m making a direction that on or before, let’s make it, November the 7^th, you will provide to the registry with a copy to the respondent an address for service for you in British Columbia.

[….]

[I]f you don’t get assistance, I fear that what’s going to happen is your appeal is going to be dismissed and to the extent you may have valid grounds of appeal, I think that’s unfortunate. I can’t assess whether you have a valid ground of appeal there or not because you buried – you’ve buried it under so much paper. You’ve buried any ground – any legitimate grounds of appeal under so much paper that it’s really hard to dig them out, so that’s why you need assistance. [….] So what I’m going to do is, I’ve given the direction that you provide an address for service. In the meantime, I’m going to ask for one further indulgence from the respondent and that is that they provide the memorandum of argument in this case to you at your California address, Mr. Shieh. So you’ll get that memorandum of argument and you’ll have everything up to date, but after that, you have to have an effective […] address for service, and then what I’m going to do is I’m going to adjourn your application – your various applications […].

[….]

Right. I’m going to direct you, Mr. Shieh, to provide – I’m going to give you a further week to provide an address – address for service. I’m going to give you until, let’s make it the 16^th of November to provide an address for service. That gives you some additional time to consult – hopefully to consult this pro bono group. Perhaps they will put you [in] touch with a lawyer, and that lawyer may be able to assist with the question of getting an address for service.

So I’m going to say until November the 16^th, and that’s to provide, again, the registry and also the respondents with an address for service in British Columbia and I’m hoping you’ll be able to get some assistance with that.

[6] I am satisfied that consideration of the balance of Mr. Shieh’s applications was conditional on him complying with Madam Justice Prowse’s direction by providing an address for service in the Province. In my view, the only application before me is the respondent’s application to dismiss the appeal as abandoned because Mr. Shieh has not complied with the condition precedent of a hearing of his applications for relief from the Rules and it is apparent he has no intention to do so.

[7] The respondent’s application is based on ss. 10(2)(e) and 28(a) of the Court of Appeal Act. Both authorize a Justice of the Court to dismiss an appeal as abandoned for non-compliance with the Act or the Rules. That jurisdiction can be exercised when a party has failed to comply with an order of the Court: Stromotich v. Stromotich, 2005 BCCA 82, [2005] B.C.J. No. 251 (Chambers); Farmers Insurance Co. of Oregon v. Brown, 2005 BCCA 577, 218 B.C.A.C. 285; International Hi-Tech Industries Inc. v. FANUC Robotics Canada Ltd., 2007 BCCA 639 (Chambers).

[8] Because he has failed to comply with the order of Prowse J.A., Mr. Shieh’s non-compliance with the Rules stands unredressed. The failure to provide an address for service within the Province is itself a serious violation of the Rules, as was made clear by Prowse J.A. In the absence of such an address, the administration of the appeal is unworkable. Mr. Shieh has given no indication that he intends to provide the required address and he remains in violation of an order of this Court. In my view, this appeal should end.

[9] This appeal is dismissed as abandoned.

[10] I direct that the order resulting from this application need not be signed by Mr. Shieh and the respondent shall deliver to Mr. Shieh a copy of these reasons and of the order to his address in the United States.

“The Honourable Mr. Justice Chiasson”